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Facts
The assessee filed an appeal against a CIT(A) order, which arose from an AO's best judgment assessment, with a 238-day delay. The assessee attributed the delay to not receiving notice from the CIT(A) on the correct email ID and personal medical reasons. The CIT(A) had dismissed the assessee's appeal without admitting it, citing non-payment of advance tax and non-filing of return as per Section 249(4)(b), despite the assessee having deposited Rs. 15.15 lakh cash during demonetization and having Rs. 1.06 crore total credit.
Held
The Tribunal condoned the 238-day delay, finding it not intentional. It held that the CIT(A) erred by dismissing the appeal without providing the assessee an opportunity to explain the non-payment of advance tax and non-filing of return. Consequently, the matter was remanded back to the CIT(A) for a fresh decision after granting the assessee a proper hearing opportunity.
Key Issues
1. Condonation of delay in filing appeal before the ITAT. 2. Whether the CIT(A) can dismiss an appeal for non-payment of advance tax and non-filing of return under Section 249(4)(b) without providing an opportunity of hearing.
Sections Cited
Section 250 of Income Tax Act, 1961, Section 144 of Income Tax Act, 1961, Section 249(4)(b) of Income Tax Act, 1961, Rule 34(4) of Income Tax (Appellate Tribunal) Rules, 1963
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, AMRITSAR BENCH, AMRITSAR
Before: SH. MANOJ KUMAR AGGARWAL & SH. UDAYAN DASGUPTA
This appeal is filed by the assessee against the order of the ld. CIT (A) NFAC, Delhi dated 28.12.2023 passed u/s 250 of the Income Tax Act, 1961 which has emanated from the order of the AO, Ward-4(1), Amritsar passed u/s 144 of the Act, 1961 dated 24.12.2019.
Before the Tribunal, there is no appearance by the assessee or his ld. AR and only an adjournment application has been filed by the A.R. for seeking adjournment for inspection of assessment records. However, considering the facts and grounds contained in the memorandum of appeal, the matter is taken up for decision on merits, upon hearing the ld. D.R.
Condonation of delay: It is pointed out by the registry that the appeal is 3. belatedly filed by 238 days. The assessee has filed an application for condonation of delay explaining the fact that the e-mail id stated in Form No. 35 was arnavgupta1986@gmail.com but no notice of hearing has been received from the office of the ld. first appellate authority. He further submitted that the appellate order dismissing the appeal (for non-payment of advance tax) has not been issued to the said e-mail id, and as such, the assesee was totally unaware of the outcome of the said appeal. He further submitted that on account of medical treatment of his father, the assessee was fully pre-occupied could not contact his counsel regarding the ongoing appeal proceeding. Subsequently, on being informed by the departmental authorities in course of penalty proceedings, the assessee came to know about the passing of the ex-parte order and thereafter he contacted a new counsel through whom this appeal before the Tribunal has been filed belated by 238 (Two Hundred Thirty Eight) days. It is stated that since the delay was not intentional, the delay may please be condoned and the appeal of the assessee may be admitted for decision on merits.
The ld. DR has no objection if the delay is condoned.
Considering the medical issues stated by the assessee and also considering that no notice of hearing has been issued in the e-mail id provided in Form No. 35, we condone the delay, being not intentional or willful, on the part of the assessee and we admit the appeal for hearing on merits.
There are thirteen grounds taken by the assessee in Form No. 36 and the first 6. issue is on the grounds of rejection of the appeal by the ld. first appellate authority refusing to admit the same for non-payment of advance tax in this case, where no return is filed resulting in violation of the provisions of section 249(4)(b) of the Act.
We find from the record that no notice of hearing has been issued from the office of the ld. first appellate authority in the mail id provided in Form No. 35 and in the instant case, the appeal has been dismissed without admitting the same for hearing on merits because of non-payment of advance tax coupled with non filing of return. It is stated that before dismissing the appeal, the ld. CIT(A) has not allowed the assesseee an opportunity to explain his case and provided an opportunity is allowed the reasons for non-payment of advance tax may be satisfactorily explained before the ld. first appellate authority.
The ld. DR relied on the order of the ld. CIT(A).
We have considered the materials on record and we find that the assessee has deposited an amount of Rs.15.15 in cash in bank account during the demonetization period, and the total credit for the rest of the period was Rs.1.06 crores and no return is filed, which indicates to the fact that there is a probability of taxable income and the ld. CIT(A) has not admitted the appeal for hearing on the grounds that no advance has been paid by the assessee and no return has also been submitted by the assessee and there is a violation of provisions of section 249(4)(b) of the Act. However, in our opinion, the ld. first appellate authority should have allowed an opportunity of hearing to the assessee to explain his case for non-payment of advance tax before refusing to admit the appeal for dismissing the same.
As such, in the interest of justice, we remand the matter back to the files of the ld. first appellate authority to provide an opportunity to the assessee to explain his case for non-payment of advance taxes and thereafter on satisfactory explanation of the same, the appeal may be admitted for hearing and disposal on merits.
The assessee to be allowed reasonable opportunity of being heard.
We have not expressed any opinion on merits of the case.
In the result, the appeal filed by the assessee is allowed for statistical purpose.
Order pronounced in accordance with Rule 34(4) of the Income Tax (Appellate Tribunal) Rules, 1963 as on 18.08.2025