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Facts
The assessee deposited Rs. 32.75 lakhs cash in Bank of Baroda in F.Y. 2010-11 but filed no return of income, leading to an ex-parte assessment under Section 147 and 144 for Rs. 35.26 lakhs. The CIT(A) dismissed the assessee's appeal under Section 249(3) due to a 594-day delay in filing, as no condonation application was presented. The assessee contested this, claiming the assessment order was served much later (24.06.2020) than the stated date (03.12.2018), making the appeal filed on 23.07.2020 timely.
Held
The Tribunal found that the CIT(A) erred in dismissing the appeal without providing the assessee an opportunity to explain the actual service date of the assessment order or to justify the delay. In the interest of justice, the Tribunal remanded the case back to the CIT(A), directing them to grant a reasonable opportunity to the assessee to prove the date of receipt and then to adjudicate the appeal on its merits.
Key Issues
Whether the CIT(A) was justified in dismissing the appeal for delay under Section 249(3) without granting an opportunity to the assessee to explain the actual service date of the assessment order or the delay, and its impact on the limitation period for filing the appeal.
Sections Cited
250, 147, 144, 133(6), 249(3)
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Income Tax Appellate Tribunal, AMRITSAR BENCH, AMRITSAR.
Before: SH. MANOJ KUMAR AGGARWAL & SH. UDAYAN DASGUPTA
ORDER Per: Udayan Dasgupta, J.M.: This appeal is filed by the assessee against the order of ld. CIT (A), NFAC, Delhi, passed u/s 250 of the Act, 1961 vide order dated 10.12.2024 which has emanated from the order of AO, Ward,1(5), Jalandhar, passed u/s 147 r.w.s. 144 of the Act, vide order dated 03.12.2018.
The assessee has preferred 5 grounds of appeal in form no. 36 and one of the grounds agitated by the assessee is the fact that the ld. First appellate authority has dismissed the appeal by refusing to admit the appeal for adjudication on merits on account of delay of 594 (five hundred ninety four ) days and the said delay has not been condoned and appeal has been dismissed u/s 249(3) of the Act.
3. The brief facts emerging from records are that the assessee has deposited cash amounting to Rs.32.75 lakhs in Bank Of Baroda, Jalandhar during the F.Y. 2010- 11 (relevant to the year under appeal) and no return of income has been submitted. In absence of any response to notice issued u/s 133(6) of the Act the case has been reopened by issue of notice u/s 148 dated 28.03.2018 which was served through affixation on 27.7.2018. 3.1 Subsequent, notice issued u/s 142(1) on various dates were also served through affixation and in absence of any compliance to all the notices issued, the assessment has been completed on a total income of Rs.35.26 lakhs (which includes the bank deposit of Rs.35.06 lakhs plus bank interest amounting to Rs.19,000/-). 3.2 In course of proceedings before the first appellate authority it was seen that the appeal has been filed with a delay of 594 days and the same is not accompanied by any application for condonation of delay. It is observed by the ld. First appellate authority that the assessee instead of filing of application for condonation of delay has contested the service of notice issued u/s 148 and 142(1) and as such, in absence of any reasonable explanation regarding the delay of 594 days, the appeal has been dismissed u/s 249(3) of the Act. 3.3 It is further observed in form 35 serial no. 14 that the assessee has stated that there is no delay in filing the appeal and has categorically mentioned that the order passed on 03.12.2018 has been served on 24.06.2020 and appeal has been filed before the first appellate authority on 23.07.2020. 3.4 As such, the ld. AR of the assessee prays for opportunity of hearing before the ld. First appellate authority to explain with documentary evidences the actual date of service of the assessment order and at the same time would like to explain the case on merits alongwith the necessary documentary evidences.
The ld. DR relied on the order of the ld. CIT(A) but has no objection if the matter is remanded back to the file of the ld. First appellate authority for adjudication on merits.
We have heard the rival submissions and consider the materials on record and we find that in the instant case, it is the challenge of the assessee that the assessment order dated 03.12.2018 has been actually served on the assessee on 24.06.2020 and thereafter the appeal has been filed before the first appellate authority within 30 days which according to the ld. AR is perfectly within the time. He further submitted that before dismissing the appeal u/s 249(3) the ld. CIT(A) has not allowed any opportunity to the assessee to explain his case, and the appeal has been dismissed without any opportunity of hearing. 5.1 As such, we are of the opinion that in the interest of justice the matter should be remanded back to the file of the ld. First appellate authority with direction to allow reasonable opportunity to the assessee to prove the date of actual receipt of the order of the assessment, which has been claimed by him to have been received on 24.06.2020 and has claimed that the subsequent appeal filed is within the time. 5.2 The assessee is also directed to file all documentary evidences in support of his contention and to explain the receipt of the assessment order and in the case of delay, to explain the said delay with reasons to the satisfaction of the ld. First appellate authority. The ld. First appellate authority shall allow reasonable opportunity to the assessee to explain his case, and thereafter on satisfactory explanation thereof he may proceed to dispose off the appeal on the merits of the case, and adjudicate on the ground contained in form 35.
We have not expressed any opinion on merits.
In the result, the appeal of the assessee is allowed for statistical purposes.