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Facts
The assessee filed an appeal against the CIT(A)'s order which was dismissed. The appeal was filed belatedly by 211 days, and the assessee sought condonation of delay due to an issue with their tax consultant missing hearing dates and the ex-parte nature of the CIT(A)'s order, which came to the assessee's knowledge late.
Held
The Tribunal condoned the delay finding sufficient cause. The Tribunal noted that the CIT(A)'s order was ex parte and restored the issue to the file of the AO for fresh adjudication to provide the assessee an opportunity to present their case.
Key Issues
Whether the delay in filing the appeal should be condoned, and whether the CIT(A)'s ex parte order should be set aside and restored to the AO for fresh adjudication.
Sections Cited
250, 143(3), 69A, 115BBE, 234A, 234B, 234C
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, PATNA BENCH AT KOLKATA
Before: SHRI GEORGE MATHAN & SHRI RAKESH MISHRA
PER BENCH: This appeal filed by the assessee is against the order of the Commissioner of Income Tax (Appeals)-NFAC, Delhi [hereinafter referred to as Ld. 'CIT(A)'] passed u/s 250 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) for AY 2017-18 dated 22.03.2024, which has been passed against the assessment order u/s 143(3) of the Act, dated 09.12.2019. I.T.A. No.: 704/PAT/2024 Assessment Year: 2017-18 Rajesh Kumar Bhadani.
The Registry has informed that the appeal filed by the assessee is barred by limitation by 211 days. An application seeking condonation of delay has been filed by the assessee stating as under: “I am an Individual and deriving income from whole sale business of Onion Potato on the name and style of OM SAI SARDHA ONION TRADERS business. I am permanent resident of Gaya, Bihar. I had filed an appeal against order of assessment by ITO ward 3(2), on 09/12/2019 before CIT (A), Patna electronically on 26/02/2020. I have engaged Tax Consultant stationed at Patna for pursuing the appeal and pursuant to notices of hearing dated 12.01.2021. 01.03.2022, 30.01.2024, 14.02.2024, 27.02.2024 and 08.03.2024, he has missed out due to pre-occupation/by mistake, and thereafter, nothing was compliance on e-portal of CIT(A) NFAC Delhi. Moreover, neither have I received any notices of hearing nor the order mentioned above, either via email or in hard copy form at the address provided in the Form No. 35 submitted by the consultant. I had received information from the present counsel on 4th November, 2024 that the said appeal has been dismissed by the CIT (A) way back on 22/03/2024. On further advice, he made me aware of my vested right of appeal against the said order before the Income Tax Appellate Tribunal. Patna Bench, Patna and according to him, the appeal is to be filed within 60 days of communication of order to the assessee. He further pointed out that this order was uploaded on the e-portal under the tab "For your information" way back on 22/03/2024 and hence, the appeal could be treated as belated from the date of order and its uploading on e-portal. Sir, I have entrusted my counsel Mr. Rakesh Kumar and this order of CIT(A) NFAC Delhi has came to my knowledge only on 04th November, 2024 through my counsel and hence, the present appeal may not be treated as a belated appeal as the same is being filed much before expiry of limitation of 60 days. However, should for any reason, if this appeal is treated as a belated appeal by counting the limitation from the date and uploading of the order on the e- portal, I earnestly pray that the delay in filing of the appeal may kindly be condoned as I am prevented by sufficient and reasonable cause from not filing the appeal within the timeline from the date of order and/or its uploading of order on the e-portal. As per the advice of my counsel, I am filing the appeal along with condonation petition and affidavit of myself enumerating therein the circumstances in which the order of CIT (A) came to his knowledge and thereafter, in my knowledge. I.T.A. No.: 704/PAT/2024 Assessment Year: 2017-18 Rajesh Kumar Bhadani. It is therefore requested that your honour would be kind enough to condoned the delay and hear the appeal on merits.”
Considering the application for condonation of delay and the reasons stated therein, we are satisfied that the assessee had a reasonable and sufficient cause and was prevented from filing the instant appeal within the statutory time limit. We, therefore, condone the delay and admit the appeal for adjudication on merits.
The assessee is in appeal before the Tribunal raising the following grounds of appeal:
“1. For that the Ld. CIT (A) NFAC has erred in passing ex-parte order and sustaining the order of the A.O. and thereby affirmed the order made by the A.O. amounting to Rs.59.57,940/-.
For that the Ld. CIT (A) NFAC has order passed without giving proper opportunity which is violative of principles of equity, natural justice and fair play.
For that the Ld. CIT(A) NFAC has erred in upholding the addition of Rs.50,94,500/-made by AO treating the alleged cash deposit during the demonetization period as unexplained income u/s 69A of the IT Act, 1961 which is wrong illegal and unjustified.
For that the Ld. CIT(A) has erred in upholding addition of Rs.50,94,500/- u/s 69 treating the same as unexplained money in terms of u/s 115BBE of the I.T. Act, 1961 which is wrong, illegal and unjustified on the facts and circumstances of the appellant's case.
For that the learned CIT (A) NFAC has erred in confirming the order of AO as disallowance 20 percent of Rs. 3,11,967/- of total expenditure of Rs. 15,59,837/-on the basis of Audit report is not justified and it clearly proves that AO has adopted the practice of disallowing the expenditure on had hoc basis without any justification which is wrong, illegal and unjustified on the facts and in the circumstances of the appellant's case
For that the Ld. CIT (A) NFAC has erred in affirming charging of interest u/s 234A, 234B and 234C which is bad in fact and law of the case.
For that the appellant may not be treated as assessee in default in respect of the disputed demand including interest amounting to Rs.54,87.681/-. I.T.A. No.: 704/PAT/2024 Assessment Year: 2017-18 Rajesh Kumar Bhadani.
For that the addition/disallowance made are wrong illegal and unjustified on the fact and in the circumstances of the appellant case.
For that the whole order is bad in fact and law of the case and it fit to be deleted/modified.
For that other grounds if any, shall be urged at the time of the hearing of the appeal.”
At the outset, the Ld. AR submitted that the order passed by the Ld. CIT(A) is an ex parte order. Hence, the Ld. AR prayed before the Bench to set aside the order of the Ld. CIT(A) and restore the issue to the file of the Ld. AO for adjudication afresh. Hence, in the interest of justice and so as to grant the assessee adequate opportunity to substantiate his case, the issues in this appeal are restored to the file of the Ld. AO for re-adjudication subject to the cost of Rs. 25,000/- (Rupees twenty-five thousand) only payable to Bihar State Legal Services Authority, Patna within sixty days from the date of this order and receipt of the same would be produced before the Ld. AO at the first hearing. Should the assessee not pay the abovementioned cost within the prescribed period of sixty days from the date of this order, the order of the Ld. CIT(A) shall stand confirmed.
In the result, the appeal of the assessee is partly allowed for statistical purposes. Order pronounced in the open Court on 7th April, 2025. [Rakesh Mishra] [George Mathan] Accountant Member Judicial Member Dated: 07.04.2025 Bidhan (P.S.) I.T.A. No.: 704/PAT/2024 Assessment Year: 2017-18 Rajesh Kumar Bhadani. Copy of the order forwarded to:
Rajesh Kumar Bhadani, Om Sai Sarda Onion Traders, Kathokar Talab, Nagarpalika Bazar, Gaya Kotwali, Gaya, Bihar, 823001. 2. ITO, Ward-3(2), Gaya.
CIT(A)-NFAC, Delhi.
CIT-
CIT(DR), Patna Bench, Patna.
Guard File. //// By order