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Facts
The assessee filed an appeal challenging an order by the CIT(A) for AY 2008-09, which was filed with a delay of 862 days. The assessee claimed the delay was due to not receiving notices or the order physically, as they had opted out of email communication and provided a physical address.
Held
The Tribunal, considering the principles of substantial justice over technicalities and the assessee's explanation of sufficient cause for the delay and for being ex-parte before the CIT(A), condoned the delay and admitted the appeal. The Tribunal decided to restore the matter to the CIT(A) for a fresh decision, giving the assessee another opportunity.
Key Issues
Condonation of delay in filing the appeal and restoration of the case to CIT(A) for fresh adjudication.
Sections Cited
250 of the Income Tax Act, 1961
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Income Tax Appellate Tribunal, “DB” BENCH, SURAT
Before: SHRI SANDEEP GOSAIN & SHRI OM PRAKASH KANT
Assessment Year: 2008-09 Brijwasi Developers Pvt Vs ACIT, Circle – 1(1)(1) Ltd New Civil Hospital, Near 102, Platinum Apartment, Desai CNG Gas Stn, Parle point, Gokul row mujra Gate, Surat - House, Surat – 395007. 395001 PAN – AACCB6546R (Appellant) (Respondent) Assessee by Sh. Rajesh Shah, CA Revenue by Shri Mukesh Jain, CIT(DR) Date of Hearing 06.10.2025 Date of Pronouncement 09.10.2025 ORDER Per: SHRI. SANDEEP GOSAIN, J.M.:
The present appeal has been filed by the assessee challenging the impugned order dt. 25.08.2025 passed under section 250 of the Income Tax Act, 1961 (‘the Act’), by the National Faceless Appeal Centre (NFAC) / CIT(A) for the assessment year 2008-09. 2. At the very outset, we noticed that there is delay of 855 days in filing present appeal and in this regard an affidavit for seeking condonation of delay has been filed by the assessee, wherein it has been mentioned as under:
Brijwasi Developers Pvt Ltd, Surat.
That the Ld. CIT(A) passed the order for A.Y. 2008-09 on 25.08.2022, accordingly we were required to file appeal before Honourable Tribunal on or before 25.10.2022 on the basis of date of order. The appeal were actually filed on 04.03.2025 causing the delay of 862 days. 2) That in the Form No. 35 the email ID mentioned was casschaudhary@yahoo.com. While filing Form No. 35, the assessee specifically opted 'no' for sending notices/communication on the said email ID. Further, in clause no. 17 of the Form-35 "Address to which notices may be sent to the appellant" assessee mentioned the address "102 Platinum Apartment, Parle Point, Gokul Row House, Surat". When assessee opted 'no' for sending notice through email, even the appellate order should have been served physically at the said address. Assessee neither received notices nor the appellate order physically and hence the assessee was completely unaware of the appellate proceedings as assessee expected physical delivery of the notices and order passed by CIT(A). 3) For this reason the assessee also didn't comply with the notices issued by Ld. CIT(A) and the order was passed ex- parte by Ld. CIT(A). 4) That the assessee came to know about the order when assessee received recovery notice for outstanding demand dated 24.12.2024. Subsequently, the assessee logged into ITD portal and downloaded the order for the purpose of filing the appeal before Honourable Tribunal. Assessee, thereafter, consulted senior CA Shri Rasesh Shah after passing of the due date for filing the appeal. Hence the appeal was filed belatedly which occurred as assessee didn't receive the order physically which was downloaded from the ITBA portal subsequently. 5) That infact there is no delay in filing of appeal if the date of downloading the order is considered to be the date of the service. If the delay is construed on the basis of date of order, the delay in filing the appeal was not intentional and assessee was prevented by sufficient and reasonable cause for not filing the appeal in time.
Brijwasi Developers Pvt Ltd, Surat. 6) I beg to condone the delay in filing the appeal before Honorable Tribunal. 7) I submit that the case is a meritorious one and requires consideration. 3. On the other hand Ld. DR refuted the contents contained in the application and requested for dismissal of the same.
Considering the entire factual position as explained before us and also keeping in view, the principles laid down by Hon’ble Supreme Court in the case of Land Acquisition Collector Vs. Mst. Katiji & Ors., [1987] AIR 1353 (SC), wherein it has been held that where substantial justice is pitted against technicalities of non-deliberate delay, then in that eventuality substantial justice is to be preferred. In our view the principals of advancing substantial justice is of prime importance. Hence considering the explanation put forth by the Assessee by justifiably and properly explaining the delay which occurred in filing the appeal and construing the expression "sufficient cause" liberally we are inclined to condone the delay in filing the appeal before the Tribunal. Therefore we condone the delay and admit the appeal to be heard on merits.
we also noticed that assessee was ex-parte before Ld. CIT(A). In this regard Ld. AR explained the circumstances before the bench that there was ‘sufficient cause’ which prevented the assessee to represent properly before Ld. Brijwasi Developers Pvt Ltd, Surat. CIT(A). On the other hand DR relied upon the orders passed by the revenue authorities.
Be that as it may, without going into the merits of the issues raised by the assessee and considering the fact that there was reasonable cause, because of which assessee could not put effective representation before Ld. CIT(A). Hence the Bench is of the view that one more opportunity be given to the assessee to represent his case before Ld. CIT(A). Therefore considering the overall circumstances of the present case, we deem it proper to restore the matter back to the file of Ld. CIT(A) for deciding the appeal afresh by providing one more opportunity to the assessee 7. Before parting, we make it clear that our decision to restore the matter back to the file of the Ld. CIT(A) shall in no way be construed as having any reflection or expression on the merits of the dispute which shall be adjudicated by the Ld. CIT(A) independently in accordance with law.