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Facts
The assessee faced a penalty order under section 271AAC(1) based on an addition of Rs. 2,23,88,245/- under section 69A. The initial appeal to the CIT(A) was dismissed due to a delay of 258 days, which was not condoned. The assessee then appealed to the ITAT.
Held
The Tribunal noted the assessee's grounds for delay, including personal circumstances like his wife's illness, and the subsequent decision on the quantum appeal where the addition was deleted. The Tribunal considered that the assessee deserved a chance to present facts before the CIT(A).
Key Issues
Whether the delay in filing the appeal before the CIT(A) should be condoned, and if the appeal merits consideration on grounds of facts and circumstances including deletion of addition in quantum appeal.
Sections Cited
271AAC(1), 69A, 250, 249(4)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “SMC” BENCH, PATNA
PER SANJAY AWASTHI, ACCOUNTANT MEMBER:
In this case, there is a delay of 182 days in filing the present appeal. The assessee has filed a petition for condoning the said delay as under:
“The appellant is a teacher in a primary school in remote village and also living there. His wife Reema Upadhyay suffers from spinal problem since 15th December 2023 and doctor advised for complete rest, as such the appellant in one hand was looking after attending his official duties and in other hand, he was to take care of his wife and house. Due to this abnormal circumstances he was cooking food and doing all the work in his home. Therefore, due to this reason he fails to make contact with his counsel and to pursue the case. As such appeal was not filed in time. As soon as his wife became Raj Kishore Upadhyay cure he make contact with his advocate who took 10 days time to prepare memo of appeal. That the delay has been caused due to compelling circumstances and there was no intention of the assessee to make delay. Under the above, there is a delay of 178 days and this delay has been caused due to unavoidable circumstances which was beyond the control of assessee. The Hon'ble Apex Court and various High Court as held that the delay in filling Appeal may be condoned if sufficient reason has been explained and appeal should be decided on merit. Appeal contains merits. The quantum appeal has already been decided by the Hon'ble ITAT, Patna Bench. Therefore, the penalty is likely to be deleted because addition made in the quantum order has been deleted. Your honor is hence requested to kindly condone the delay in filing the appeal and list the case for hearing on merit.” 1.1 Considering the reasons advanced for the said delay, this appeal is admitted for adjudication after condoning of the said delay.
This appeal arises from order dated 27.10.2023 passed by the Ld. Commissioner of Income Tax (Appeals) [hereafter ‘the Ld. CIT(A)’], National Faceless Appeal Centre (NFAC), Delhi u/s 250 of the Income Tax Act, 1961 (hereafter ‘the Act’). In this case, the Ld. AO passed an order of penalty u/s 271AAC(1) of the Act on the basis of an addition of Rs. 2,23,88,245/- made in quantum matter u/s 69A of the Act. It is a matter of record that the Ld. AO has passed an ex-parte order.
2.1 Aggrieved with this action of Ld. AO, the assessee approached the Ld. CIT(A), where he could not succeed on account of a delay of 258 days, which was not condoned; and also due to the provision of Section 249(4) of the Act.
2.2 Further, aggrieved the assessee has approached the ITAT with the following grounds:
Raj Kishore Upadhyay “1. For that, on the facts and circumstances of the case, Ld. CIT (A) has erred in not condoning the delay of 258 days as sufficient causes were submitted. Due to refusal to condone the delay grave miscarriage of justice has been resulted.
For that, on the facts and circumstances of the case, Ld. CIT (A) is not justified in dismissing the appeal on the ground of delay in filing without go through on the merit of the case. Due to this the appellant deprived of sufficient justice.
For that, on the facts and circumstances of the case, Ld. CIT (A) has erred in not considering the liberal approach for condonation the delay of appeal. Due to this the penalty imposed on the addition made by the assessing officer which is not belongs to the assessee has been mechanically and automatically upheld and the assessee deprived of justice.
For that, on the facts and circumstances of the case, Ld. CIT (A) has erred in considering the appeal infructuous without proving any opportunity and appreciating the facts and financial condition of the appellant.
For that the addition u/s 69A of total deposits of Rs.2,23,88,245/- in the bank account which does not belongs to the assessee is illegal as based on irrelevant consideration and assumption therefore penalty imposed due to such addition is illegal.
For that, the ground taken herein above is not prejudicial to each other.
For that other grounds, if any, shall be urged at the time of hearing of this appeal, as the appellant crave the right to add or amend the ground at any stage of appellate proceedings.”
Before us, the Ld. AR argued that the impugned deposits did not belong to the assessee and he also claimed that the assessee had already got some kind of relief in the quantum matter at the level of ITAT. However, relevant orders of ITAT were not placed on record.
3.1 The Ld. AR relied on the orders of authorities below.
We have considered the arguments from both sides and also gone through the records. It is felt that the assessee deserves a chance to present the facts before the Ld. CIT(A). Accordingly, we direct for the condonation of delay before the Ld. CIT(A) and also direct that the assessee must present the full facts before him, including any order of ITAT in his own quantum matter. This matter is accordingly remanded back to the file of Ld. CIT(A).
Order pronounced in the court on 04.02.2025
Sd/- Sd/- [Sanjay Garg] [Sanjay Awasthi] Judicial Member Accountant Member Dated: 04.02.2025 AK, PS Copy of the order forwarded to: 1. Raj Kishore Upadhyay 2. Income Tax Officer, Ward, Siwan 3. CIT(A)- 4. CIT- 5. CIT(DR)