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Facts
The assessee filed a return of income, but the AO completed an ex-parte assessment u/s 144, making additions for cash deposits during demonetization and disallowing expenses u/s 40(a)(ia), leading to a significantly higher total income. The CIT(A) dismissed the assessee's appeal without hearing due to non-appearance. Subsequently, the assessee passed away, resulting in a 464-day delay in the legal heir filing an appeal before the ITAT.
Held
The Tribunal condoned the 464-day delay, acknowledging the assessee's death and finding no malafide intent from the legal heir. It ruled that the CIT(A)'s ex-parte dismissal, especially given the assessee's death, amounted to a miscarriage of justice. Therefore, the Tribunal allowed the appeal for statistical purposes and remanded the case back to the CIT(A) for a fresh decision on merits.
Key Issues
Condonation of delay in filing appeal due to the assessee's death; validity of CIT(A)'s ex-parte dismissal without considering the assessee's circumstances; violation of natural justice principles.
Sections Cited
143(3), 144, 40(a)(ia), 250
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, DELHI BENCH ‘F’: NEW DELHI
O R D E R
PER VIMAL KUMAR, JM:
The appeal of the Assessee is against order dated 13/12/2022 of Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi [hereinafter referred to as ‘Ld. CIT(A)’] arising out of Assessment Order dated 23/12/2019 of Learned Assistant Commissioner of Income Tax, Circle-46(1), New Delhi [hereinafter referred to as “Ld. AO”] for the Assessment Year 2017-18.
Brief facts are that assessee filed return of income on 10/09/2018 declaring total income of Rs.12,84,500/-. The case was picked up for scrutiny u/s 143(3) through CASS under complete scrutiny category. During assessment proceedings assessee remained non responsive despite several opportunities. Assessment Proceeding were completed, vide assessment order u/s 144 of IT Act on 23/12/2019 determining the total income of assessee at Rs.2,61,66,500/-. In the order so passed the AO has made the following additions/disallowance:- (i) Addition of Rs.2,46,10,000/- on account of cash deposited in bank account during demonetization period; (ii) Disallowance of Rs.2,72,000/- has been made u/s 40(a)(ia) of the IT Act.
Appellant/assessee preferred appeal before Learned CIT(A) which was dismissed vide order dated 13/12/2022.
Being aggrieved, appellant assessee preferred appeal with following grounds:- “
1. That under the facts and circumstances of the case, the impugned order dated 13/12/2022 passed u/s 250 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’), generated vide DIN: ITBA/NFAC/S/250/2022-23/1047981384(1), dismissing the grounds of appeal and sustaining the total income at Rs.2,61,66,500/- in place of returned income as returned by the assessee is bad in law on account of several grounds and assessee/appellant denies its liability to be assessed for any income other than the income already returned by the assessee and the consequential demand of Rs.2,54,79,625/-.
2. That under the facts and circumstances of the case the Ld. CIT(A) has erred in law as much as in fact while passing the impugned order as the Ld. CIT(A), has dismissed the appeal on account of non-appearance during the appeal proceedings, but it is imperative to note that the absence of the appellant was not deliberate or intentional but due to the reason that the appellant was not deliberate or intentional but due to the reason that the appellant was demised in the month of November, 2020.
3. That under the facts and circumstances of the case and the Ld. CIT(A) has erred in law as much as in fact while passing the impugned order as the Ld. CIT(A) has upheld the addition made by the Ld. AO in the assessment order dt. 23/12/2019 passed without following due procedures of law and without having proper jurisdiction.
That appellant craves to leave, alter, amend or modify the grounds of appeal
before or during the hearing of the appeal.
5. That each ground is independent and without prejudice to each other.”
The Learned Authorized Representative of the assessee submitted that there is delay of 464 days in filing the appeal due to lack of knowledge of proceedings of appeal as assessee died on 01/11/2020 during pandemic covid 19, Smt. Somlata Gupta in capacity of legal heir appointed vide survivor certificate dated 05/01/2024 issued by District Magistrate, Vivek Vihar, Delhi has preferred the appeal. Learned CIT(A) erred in dismissing the appeal due to non-prosecution in violation of principle of natural justice. The matter may be remitted back to Ld. CIT(A).
Learned Authorized Representative for Revenue submitted that due to non appearance of appellant, the appeal was dismissed.
From examination of record, it is amply clear that there is delay of 464 days in filing the appeal due to lack of knowledge of proceedings of appeal and due to death of assessee. The explanation does not smack of malafides as Legal Representative of assessee has not gain anything by not filing appeal within period of limitation. So the delay in filing the appeal is condoned.
From examination on record, it is crystal clear that Learned CIT(A) decided appeal in absence of appellant as no response to notice for hearing during the appeal was filed. It is a fact that assessee died on 01/11/2020. In view of above material facts and well settled principle of natural justice passing of impugned order has led to miscarriage of justice which is required to be remedied.
Hence the appeal of the assessee is allowed for statistical purposes. The matter is restored to the file of Learned CIT(A) for passing a fresh order as in accordance with law. Order pronounced on this day 09th October, 2024.