SHOWKAT SHAFI, S.O. MOHAMMAD YATOO, YATOO MANZIL NAGAM CHADOORA BUDGAM,SRINAGAR vs. INCOME TAX OFFICER WARD-3(3), SRINAGAR
Facts
The assessee's appeal was dismissed by the CIT(A) ex-parte due to non-appearance. The assessee sought condonation of delay, explaining that their counsel failed to inform them of hearing dates, leading to their absence. The CIT(A) had sent notices to the provided email addresses.
Held
The Tribunal condoned the 92-day delay in filing the appeal, acknowledging the assessee's explanation of counsel negligence. However, the Tribunal noted that proper notices were served via email as per rules, and imposed a token cost on the assessee due to negligence. The matter was remanded to the CIT(A) for adjudication on merits.
Key Issues
Whether the ex-parte order of the CIT(A) was justified, and if the delay in appeal should be condoned due to counsel's negligence.
Sections Cited
282, 144, 147, 250
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, AMRITSAR BENCH, AMRITSAR
Before: SH. UDAYAN DASGUPTA & SH. KRINWANT SAHAY
Per Udayan Dasgupta, J.M.:
This appeal is filed by the assessee against the order of ld. CIT (A) National
Faceless Appeal Centre (NFAC), Delhi dated 14/12/2023 passed u/s 250 of the Income Tax Act, 1961 which has emanated from the order of the Assessing Officer, Ward 3(3), Srinagar dated 09.12.2019 passed u/s 144/147 of the I. T. Act, 1961.
2 I.T.A. No. 284/Asr/2024 Showkat Shafi v. ITO Condonation of delay:- It is pointed out by the registry that the appeal is 2.
belated by 92 days, the assessee has filed an application for condonation of delay
along with an affidavit, explaining the delay that the notices and order has been sent
from the office of the ld. CIT(A) to the e-mail id of the counsel
tasaduqmairaj@gmail.com and the said counsel has never intimated or informed the
receipt of the appeal order to the assessee. It is when the Assessing Officer has
started pressing for the outstanding tax demand, the assessee came to know that his
appeal has been dismissed by the office of the ld. first appellate authority and
thereafter he has contacted his new counsel by whose guidance and help he has managed to file the appeal before the Tribunal on 14th May, 2024 which is belated by
92 days and he prayed for condonation of delay for admission of appeal to be heard
on merits.
The ld. DR has no objection.
Considering the contents of the affidavit, we condone the delay and admit the
appeal to be heard on merits.
The grounds of appeal taken by the assessee in form 36 are as follows:
That the Ld. CIT(A) has erred in passing the order ex-parte and has erred in confirming the order of Assessing Officer without giving any decisions on the merits of the addition made by the Assessing Officer.
3 I.T.A. No. 284/Asr/2024 Showkat Shafi v. ITO 2. That the Ld. CIT(A) was bound to decide the case on merits even if, he has passed an ex-parte order.
That the reliance is being placed on the judgment of Hon’ble Punjab 8t Haryana High Court in the case of “Munjal BCU Centre of innovation and Entrepreneurships” in CM-3543-CWP-2024, in which, it has been held that the assessee cannot be expected to look into the portal all the times and, as such, it is prayed that the assessment may, please, be set aside to the file of the Assessing Officer and assessee assures full cooperation before the Ld. Assessing Officer.
Notwithstanding the above grounds of appeals, the addition of Rs. 56,70,073/- is not sustainable on merits of the case, as well.
That the appellant craves leave to add or amend the grounds of appeal before the appeal is finally heard or disposed off.”
The brief facts emerging from records are that the case of the assessee was
reopened on the basis of information of cash deposits in bank account and in course
of assessment proceedings, there is no response and no representation on behalf of
the assessee resulting in an ex-parte order with an addition of Rs.56,70,073/-.
The matter was carried in appeal before the first appellate authority and the
said appeal has been dismissed by the ld. CIT(A) in absence of any response or any
representation to several notices of hearing being issued from the office of the ld.
first appellate authority on four different dates of hearing. It is also seen from the
order of the ld. CIT(A) that notice has been issued on the registered e-mail id as
given by the appellant in the memorandum of appeal. In course of hearing, the ld. AR
4 I.T.A. No. 284/Asr/2024 Showkat Shafi v. ITO of the assessee submitted that the notice of hearing has not been received because the
said notice has been issued in the e-mail id of the counsel and the counsel has neither
informed the assessee regarding the date of hearing nor has he attended the hearing
himself. He further submitted that the notices were issued in the e-mail id
tasaduqmairaj@gmail.com, of the counsel and he has not filed any request for
adjournments and in absence of any information from him no such details and
submissions could be filed in course of appellate proceedings, resulting in the ex-
parte order passed by the ld. CIT(A). He further submitted that appellant is totally
dependent on the counsel who has filed the appeal and since no notices was sent by
physical mode to the assessee, the assessee could not file any response and as such he
has prayed that the order of the ld. CIT(A) may please be set aside for fresh decision
on merits of the case. The ld. AR further submitted that the ld. first appellate
authority has not passed a speaking order and has not inquired into the facts of the
case that the assessee is running a petrol pump and in this nature of business there is
always cash sale and cash deposits in bank account has arisen out of the regular sale
proceeds of the business. Moreover, since the ld. CIT(A) has not decided or
adjudicated on the grounds of appeal on the merits of the case, he prayed that the
appeal may please be set aside back to the files of the ld. first appellate authority for
fresh consideration.
5 I.T.A. No. 284/Asr/2024 Showkat Shafi v. ITO 8. We have considered the rival submissions and the material available on record
and we find that in the instant case, the appeal has been submitted in Form 35 along
with the e-mail address titustitus847@gmail.com where notice and communications
are required to be sent vide e-mail id.
The ld. first appellate authority has issued notice of hearing on four different
dates to the specific e-mail id mentioned in the memorandum of appeal in Form 35
and also on the e-mail id tasaduqmairaj@gmail.com. On this issue, we find that the
ld. CIT(A) has done all within his powers to issue a proper notice on the proper mail
id as provided by the assessee himself on four different occasions and in fact, there
has not been any representation or appearances on behalf of the assessee in response
to such notices issued in proper e-mail.
Now, the contention of the assessee is that his appointed counsel has not
intimated the dates of hearing to the assessee and the assesseee was not aware of the
notices of hearing which seems to be very farfetched explanation. In the instant case,
we find that there is absolutely no default on the part of the ld. CIT(A) regarding
issue and service of notice through proper e-mail id (apart from ITBA Portal), which
is a proper service as per the provisions of section 282 of the Act (read with rule 127
of the IT Rules, 1962). However, considering the fact and the submissions of the
assessee that his counsel has not intimated the dates of hearing, in the interest of
6 I.T.A. No. 284/Asr/2024 Showkat Shafi v. ITO justice, we remand the matter back to the files of the ld. CIT(A) for adjudication of
all the grounds contained in Form 35 on merits of the case.
However, considering the factual issues and the sequence of event, we
consider that there has been negligence on the part of the assessee (and his appointed
counsel), and in all fairness, it is proper to impose a token cost of Rs.5000/- (five
thousands) on the assesseee, payable to the Prime Ministers National Relief Fund,
evidence of deposits to be produced before the jurisdictional Assessing Officer. The
assessee is also directed to file all documentary evidences, written submissions and
explanations and to fully co-operate with the ld. first appellate authority for disposal
of the appeal.
Needless to say, the assessee will be provided with proper and reasonable
opportunity of being heard and notices of hearing to be issued as per the provisions
of section 282 of the Act.
In the result, the appeal filed by the assessee is allowed for statistical purposes.
Order pronounced in accordance with Rule 34(4) of the Income Tax (Appellate
Tribunal) Rules, 1963 as on 29.04.2025.
Sd/- Sd/- (Krinwant Sahay) (Udayan Dasgupta) Accountant Member Judicial Member *GP/Sr.PS*
7 I.T.A. No. 284/Asr/2024 Showkat Shafi v. ITO Copy of the order forwarded to: (1)The Appellant: (2) The Respondent: (3) The CIT concerned (4) The Sr. DR, I.T.A.T True Copy By Order
