VIJAYBHAI BOOKBINDER,SURAT vs. ITO, WARD- 3(2)(10), SURAT

This appeal by assessee are directed against the order of National Faceless Appeal Centre, Delhi /Commissioner of Income Tax (Appeals) [for short to as “Ld.CIT(A)"] dated 22.05.2024 for assessment year (AY) 2017-18. The assessee has raised the following grounds of appeal:

That on facts and in law, the learned CIT(A) has grievously erred in confirming the addition u/s 69A of the Income Tax Act, 1961 of Rs.33,78,704.00/- on a completely different ground without affording any opportunity to appellant to rebut it.

That on facts and in law, the learned CIT(A) has grievously erred in dismissing

The appellant craves leave to add, alter, amend any ground of appeal.”

Rival submission about the parties have been head and record perused. The learned authorised representative (AR) of the assessee submits that appeal of assessee was dismissed by CIT(A) in ex-parte order by taking view that there is delay of 353 days in filing appeal before him. The Id CIT(A) has not discussed the merits of the appeal. In fact, the order passed by assessing officer (AO) on 16th November 2019, passed under section 144 was not received by the assessee. The assessee used to live in Rampura Surat and changed his address to Mangal Vihar Co-operative Society Adajan, Surat. Hence, notice if any sent through post was not received by assessee. The assessee came to know about the assessment order dated 16th November 2016, only on checking Income Tax Business Application (ITBA) portal in the month of November 2021. The assessee filed appeal before CIT(A) on 04.12.2020. Though, there was no delay in filing appeal from the date of knowledge of assessment order. The assessee, in statement of facts filed while filing first appeal explained such facts. in addition to oral submissions, the Id AR of the assessee also filed her short written synopsis on record. In the written synopsis, the assessee submitted that entire period of delay was likely to be condoned as per the order of Hon'ble Supreme Court in Suo Moto Writ Petition No. 3 of 2020, wherein the period in between 15th March 2020 till February 2022 was directed to be condoned. Substantial part of period of delay falls within such period. The Id CIT(A) ought to have condone the delay in filing appeal. The appeal of assessee was dismissed in limine by not condoning such delay in ex-parte order. In fact, no notice during the assessment were received by the assessee, thus, the assessee could not make compliance, resultantly, assessment was also completed an ex parte proceeding. The assessing officer sent all the notices and assessment order at email ID hp_rhp@hayoo.co.in, which does not belong to assessee, the copy of screen shot of ITBA portal is filed on record. The Id AR of assessee submits that assessee had good case on merit and is likely to succeed, if one more person it is given to him to contest the case on merit. The A.R. of the assessee submits that there was no intentional or deliberate delay in filing appeal before Id CIT(A), rather due to the facts explained hereinabove. The period of delay may kindly be condoned and Id CIT(A) may be directed to decide the appeal of assessee on merit.

On the other hand, the learned Senior Departmental representative (Sr DR) submits that assessee has not explain the delay in filing appeal before Id CIT(A) in a proper manner. The notices during assessment are issued on the e-mail available in system, which is provided by the assessee himself. In alternative submission the Id Sr DR submits that in case, this bench of the view that the delay in filing appeal before Id CIT(A) deserves to be condone, the matter may be restore back to the file of assessing officer, with the direction to the assessee to be more vigilant in future and not to make any default in making compliance in time.

We have considered the rival contention both the parties and have gone through the orders of lower authorities carefully. We find that first appeal of assessee was dismissed by Id CIT(A) by taking view that assessment order was passed on 19th November 2019 and the appeal before him was filed after 353 days. The Id CIT(A) held that mentioned that section 119(2)(b) of the Act empowered the Income Tax Authorities to condone the delay if there is any hardship to the party. The observation of Id CIT(A) is not correct. The Id CIT(A) is empowered to consider the plea of condonation of delay in filing appeal under section 249(3) of the Act. Further as per section 250(1), the Id CIT(A) is required to fix the appeal for hearing and to issue notice to the assessee as well as to the AO. We find before dismissing the appeal, the Id CIT(A) has nowhere recorded that any show cause notice or notice of hearing under section 250 was issued to the assessee, or not. Thus, the order passed by ld CIT(A) is not in accordance with the procedure prescribed in section 250 of the Act.

We have independently examined the facts of the case and find that even if it is presumed that assessment order dated 19.11.2019 was send and served through e-mail on the assessee or through the email of his representative, the e-mail address on which such notices were sent does not belongs to the assessee or his representative. Thus, the assessee has no knowledge of assessment proceedings. Even otherwise from March 2020 till February 2022, the period of filing appeal or for taking recourse of law was condoned by Hon'ble Apex Court in Suo Moto Writ Petition No. 3 of 2020, thus substantial part of delay is otherwise covered by order of Hon'ble Apex Court. Thus, keeping in view the explanation offered by Id AR of the assessee, we are of the view that there was no intentional or deliberate action on the part of delay in filing appeal before Id CIT(A). Hence, the delay in filing appeal before Id CIT(A) is condoned. Further considering the facts both the lower authorities have passed the order ex-parte, in absence of submissions by the assessee, hence, the matter is restored back to the file of AO to pass order afresh and in accordance with law. Needless to direct that before passing order afresh, the AO shall allow opportunity to the assessee. The assessee is also directed to be more vigilant in making compliance. In the result, ground No. 2 of the appeal is allowed and ground No. 1 of the appeal is allowed for statistical purpose. Order pronounced in the open court on 11/02/2025. (BIJAYANANDA PRUSETH) लेखा सदस्य/Accountant Member सूरत / Surat Dated: 11/02/2025 Self/dragon (PAWAN SINGH) न्यायिक सदस्य/Judicial Member आदेश की प्रतिलिपि अग्रेषित/ Copy of the order forwarded to : • अपीलार्थी/ The Appellant • प्रत्यर्थी/ The Respondent • आयकर आयुक्त / CIT • विभागीय प्रतिनिधि, आयकर अपीलीय आधिकरण, सूरत/ DR, ITAT, SURAT • गार्ड फाईल / Guard File //// By order/आदेश से, सहायक पंजीकार आयकर अपीलीय अधिकरण, सूरत", "summary": { "facts": "The assessee's appeal was dismissed by the CIT(A) ex-parte due to a delay of 353 days in filing. The assessee contended that they did not receive the assessment order, as notices were sent to an incorrect email address. The CIT(A) dismissed the appeal without condoning the delay or discussing the merits.", "held": "The Tribunal held that the CIT(A)'s order was not in accordance with the prescribed procedure as no show cause notice or notice of hearing was issued. The Tribunal also noted that a significant portion of the delay fell within the period condoned by the Hon'ble Supreme Court.", "result": "Allowed", "sections": [ "69A", "144", "254(1)", "249(3)", "250(1)", "119(2)(b)" ], "issues": "Whether the CIT(A) was justified in dismissing the appeal ex-parte due to delay without condoning it, and whether proper procedure was followed." } }