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Facts
The assessee did not file a return for AY 2011-12 but deposited Rs. 10,13,220/- cash. The AO completed an ex-parte assessment under Section 144 read with Section 147 after issuing notices which the assessee reportedly did not respond to. The CIT(A) dismissed the assessee's belated appeal on technical grounds, citing lack of sufficient cause for condonation of delay under Section 249(3) of the Act, without addressing the merits.
Held
The ITAT held that the assessee should be given another opportunity to be heard in the interest of justice. It restored the matter to the CIT(A) for de novo adjudication on merits, emphasizing that the CIT(A) should provide an adequate opportunity to the assessee.
Key Issues
Whether the CIT(A) was justified in dismissing the appeal solely on technical grounds of belated filing and non-condonation of delay without considering the merits of the assessment, and if the assessee should be granted another opportunity to present her case.
Sections Cited
148, 142(1), 144, 147, 249(3), 249(2)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, DELHI BENCH ‘SMC’: NEW DELHI
Assessee by Shri Prakash Sinha, Adv. Department by Shri Om Prakash, Sr. DR Date of Hearing 24/06/2024 Date of Pronouncement 26/06/2024 ORDER
PER S.RIFAUR RAHMAN, AM:
This appeal has been filed by the Assessee against the order of Learned Commissioner of Income Tax (Appeals)-1 Jaipur [“Ld.
CIT(A)”, for short], dated 21/02/2024 for Asst. Year 2011-12.
The brief facts of the case are, the Assessing Officer observed from the information available with the Department that assessee has not filed any return of income for Assessment Year 2011-12 and also assessee has deposited cash of Rs.10,13,220/- in his Saving Bank Account maintained with HDFC Bank, Mumbai and the source of cash deposit remained unsubstantiated in the absence of return of income. Accordingly, Section 148 notice was issued to the assessee after recording reasons and obtained approval from the Principal Commissioner of Income Tax, Faridabad. The notice issued and sent through speed post, however, no return of income or any reply was filed in response to notice u/s 148 of the Income Tax Act, 1961 (‘the Act’ for short).
Notices u/s 142(1) were issued once again in response to the above said notices. Accordingly, show cause notice u/s 144 of the Act was issued to the assessee. Still no response from the assessee side, the assessment was completed u/s 144 r.w.s 147 of the Act.
3. Aggrieved, the assessee preferred an appeal before the Ld. CIT(A) and filed the appeal belatedly. Accordingly, the Ld. CIT(A) dismissed the appeal of the assessee with the following observations:-
“In view of the above detailed discussion, it is held that the appellant has no "sufficient cause" in terms of section 249(3) of the Act, for not presenting the appeal within the prescribed period. It is well-settled law that an appellant is not entitled to the condonation as a matter of right. For an appellant to succeed, the existence of sufficient cause is sine qua non and a condition precedent. It is manifestly evident that this ingredient is woefully lacking in this belated appeal filed by the appellant. Thus, the delay in filing the appeal by the appellant, is not considered as sufficient cause and delay is therefore, not condoned. Accordingly, the appeal is dismissed without any discussion on merits or on any other aspect. Considering the above discussion and facts, the appeal filed is not in conformity with the provisions of Sec 249(2) of the Act, and there is no sufficient cause for condonation of the delay in filing of the appeal, the present appeal is dismissed as not maintainable.”
Aggrieved with the above order, the assessee is in appeal before us raising following grounds of appeal:-
“1. Because the impugned order has been passed on a very technical ground of non-submission of condonation of delay/ not explaining the delay appellant appreciating the facts that the appellant was not effectively serve the assessment order either through the post or email and further she was not so tech savvy having a regular access to ITBA portal.
2. Because the impugned order is arbitrary and perversive without acknowledging the facts that the assessment order was also passed ex- prate without representation leading thereby to a reasonable conclusion that the appellant was not aware of these such legal and technical proceedings.
Because on both the facts and the circumstance of the case, the impugned CIT(A) order is arbitrary, illegal and bad in law and hence liable to be quashed.”
At the time of hearing, the Ld. AR submitted that the Ld. CIT(A) has dismissed the appeal filed by the assessee on technical ground of non submissions of condonation of delay/not explaining the delay. In this regard, he submitted that assessee was not effectively served assessment order either through the post or email and she was not aware of the process of regular access to ITBA portal. It is a fact on record that the assessment order was ex- parte and assessee should be given an opportunity of representing the case. He submitted that on merit, the assessee has relevant evidences for deposit of cash in her bank account and prayed that this issue may be remitted back to the Ld. CIT(A).
On the other hand, Ld. DR relied on the order of the lower authorities and submitted that assessee has not utilized the opportunity provided by Assessing Officer as well as Ld. CIT(A).
However, he agreed that the order passed by Ld. CIT(A) is ex-parte order.
Considered the rival submissions and material placed on record, we observed that the assessee no doubt made certain cash deposits. In order to verify the same, the Assessing Officer has issued 148 notice followed by several show cause notices which assessee has not utilized the opportunity to file the relevant evidences before the Ld. CIT(A)/AO, however, before the Ld. CIT(A), the assessee has filed the appeal with the delay. We noticed that the Ld. CIT(A) has not condoned the delay. Due to the fact that the assessee has no sufficient cause in terms of Sec. 249(3) of the Act for not proceeding with the appeal within prescribed time limit.
At the outset, the Ld. AR briefly submitted the facts in this case and agreed that Assessing Officer sent several notices, but assessee could not make submission before him, therefore, proceeded to make the assessment u/s 144 r. w. section 147 of the Act, 1961 (‘the Act’ for short). Further, he agreed that several opportunities were given by the Ld. CIT(A) as well and assessee could not represent his case due to non-receipt of the notices, however, he submitted that the Ld. CIT(A) has proceeded to dismiss the appeal filed by the assessee in limine without deciding the issue on merits. On merits, he submitted that the assessee is not the complete owner of the property sold by her. She is one of the co-owner in the property. He prayed that this issue may be remitted back to file of Ld. CIT(A) for proper adjudication.
Considering the totality of facts and keeping in view the additions/disallowance made by the Assessing Officer, we are of the opinion that assessee should be given one more opportunity of being heard. Accordingly, in the interest of justice, we are of the view that this matter should go back to the file of the Ld. CIT(A) de novo adjudication on merit. Assessee shall cooperate with the proceedings before the Ld. CIT(A) without taking unnecessary adjournments. Needless to say that the Ld. CIT(A) shall give adequate opportunity of being heard to the assessee. Thus, this appeal is restored to the file of the Ld. CIT(A) accordingly.
In the result, appeal filed by the assessee is allowed for statistical purpose.
Order pronounced in the open court on 26th June, 2024.