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Facts
The appeal was filed by the assessee against an order passed by the CIT(A) which arose from an assessment order under section 147 r.w.s. 144 r.w.s 144B of the Act. The appeal was filed with a delay of 181 days. The assessee's counsel explained that the delay was due to not receiving the order on time and the subsequent process of obtaining it from a previous consultant.
Held
The Tribunal condoned the delay, noting that it was not intentional or deliberate and that the assessee should not be penalized for the consultant's mistake. On merits, the Tribunal found the CIT(A)'s order to be ex-parte and non-speaking. It held that principles of natural justice require adequate opportunity for hearing, which was not provided. The matter was remitted back to the Assessing Officer for de novo assessment.
Key Issues
Whether the appeal filed by the assessee is barred by limitation, and if the delay can be condoned. Whether the order passed by the CIT(A) was a speaking order and followed principles of natural justice.
Sections Cited
147, 144, 144B, 250, 148A, 148, 69A, 271AAC, 234A, 234B, 250(6)
AI-generated summary — verify with the full judgment below
Before: DR. ARJUN LAL SAINI & SHRI DINESH MOHAN SINHA
O R D E R
PER DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER:
Captioned appeal filed by the assessee, pertaining to Assessment Order (AY) 2017-18, is directed against the order under section 250 of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) passed by the National Faceless Appeal Centre (NFAC), Delhi/Learned Commissioner of Income Tax(Appeals) (in short “Ld.CIT(A)”, dated 18.06.2024, which in turn arises out of an assessment order passed by the Assessing Officer u/s 147 r.w.s. 144 r.w.s 144B of the Act dated 19.05.2023. The assessee has raised the following grounds of appeal:- 2. “Reopening u/s 148A of the Income Tax Act, 1961 (“the Act”)
1. The learned the National Faceless Appeal Centre [“the CIT(A)”] and the Assessment Unti, Income Tax Department (“the AO”) erred in fact and in law in initiating proceedings u/s 148 of the Act without issuing notice u/s A.Y.17-18 Rafikbhai A Virani 148A(b) of the Act or allowing the appellant to make submission u/s 148A(c) of the Act.
The learned CIT(A) and the AO erred in fact and in law in initiating proceedings u/s 148 of the Act without issuing order u/s 148A(d) of the Act.
The learned CIT(A) and the AO erred in fact and in law in initiating proceedings u/s 148 of the Act without providing the reasons for reopening u/s 148A(b) of the Act. Addition u/s 69A of the Act 4. The learned CIT(A) and the AO erred in fact and in law in making addition of Rs.1,25,77,793/- u/s 69A of the Act.
The learned CIT(A) and the AO erred in fact and in law in making the addition to the total income of the appellant without considering the facts of the case in proper perspective.
6. The learned CIT(A) and the AO erred in fact and in law in considering the deposits to the account of Smt. Alpa Zakhar amounting to Rs.67,71,000/- as unexplained u/s 69A of the Act without considering the fact that the said income has been duly accounted for as the income of the appellant.
7. The learned CIT(A) and the AO erred in fact and in law in making addition of Rs.58,06,793/- as unexplained income u/s 69A of the Act despite the fact that the income was from business receipts. Other grounds 8. The learned CIT(A) and the AO erred in fact and in law in initiating penalty proceedings u/s 271AAC of the Act.
The learned CIT(A) and the AO erred in fact and in law in levying interest u/s 234A of the Act.
The learned CIT(A) and the AO erred in fact and in law in levying interest u/s 234B of the Act.
The appellant reserves the right to add, alter, modify, substitute, delete all or any of the grounds of appeal
.”
3. The appeal of the assessee is barred by limitation by 181 days. The assessee has moved a petition requesting the Bench to condone the delay. The Ld. Counsel has explained the reasons for delay stating that assessee had not received the hard copy of the order of Ld.CIT(A) on time, neither physical nor through e-mail address. As soon as assessee obtained copy of order from his previous tax consultant, then after assessee took appropriate steps to file appeal before the Tribunal and this process has resulted into delay in filing appeal before Tribunal. Since the order of Ld.CIT(A) was not delivered to assessee either physical or internet/e-mail therefore, such delay has occurred which, may kindly be condoned. A.Y.17-18 Rafikbhai A Virani
It was argued by Ld. Counsel for the assessee that delay was because of unawareness about service of notice on the portal. The assessee did not have any knowledge of impugned order passed on 18.06.2024. It was stated that assessee had no intention in filing the appeal in delay. The Ld. AR submitted that the delay in filing the appeal was neither deliberate nor intentional. The assessee is not going to be benefited by filing the appeal late. The consultant on whom the appeal was outsourced could not inform about any of notice nor the fact regarding impugned order being uploaded on the portal was shared with the assessee, hence, there was delay of 181 days in filing the appeal. Therefore, this delay may be condoned, and the appeal may be decided on merit.
5. On the other hand, the Learned Senior DR for the Revenue opposed the prayer of the assessee for condonation of the delay and stated that assessee has failed to explain the sufficient cause, therefore, delay should not be condoned.
We have heard both the parties on this preliminary issue. We note that the order of the ld.CIT(A) was delivered on the assessee very late and tax consultant of assessee searched the order of Ld.CIT(A) on ITBA portal and sometime thereafter he took hard copy of the order of Ld.CIT(A) and let it know to the assessee. The Ld. Counsel for the assessee stated that assessee thereafter took immediate step to file appeal before Tribunal. Besides, there was mistake committed by the tax consultant of the assessee and therefore the assessee should not be penalized on account of mistake committed by his tax consultant. We note that this delay is neither intentional nor deliberate, therefore, in the A.Y.17-18 Rafikbhai A Virani interest of justice, we condone the delay and admit the appeal of the assessee for hearing on merit.
At the outset on merit, Ld. Counsel for the assessee submitted that assessee was not aware about online proceedings and did not receive notice from the lower authorities, hence, assessee could not appear before the lower authorities. The Ld. Counsel for the assessee submitted that now assessee is ready with the documents and wants to furnish before the lower authorities and prayed before the Bench that one more opportunity to contest his case before Assessing Officer may be granted. 8. The ld. DR of the Revenue has submitted that ld. CIT(A) has given ample opportunities to the assessee but there was no response by the appellant, hence the ld. CIT(A) had no alternative but to pass an ex-parte order on the basis of materials available on record. Therefore, it would be wasting of the resources of the lower authorities if the matter is remitted back to the file of Assessing Officer for fresh adjudication. However, the Ld.Sr-DR has also stated that if the Bench wants to remit the matter back to the file of Assessing Officer then in that circumstances a minimum cost of Rs.5,000/- may be imposed on assessee, on account of non-compliance attitude of the assessee.