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Facts
The assessee filed an appeal before the CIT(A) against an assessment order dated 24.03.2022, which was dismissed due to a delay of 543 days. The assessee claimed the assessment order was served on 21.09.2023, but this was unsubstantiated. The CIT(A) also noted that the assessment order was passed under faceless proceedings and digitally issued. The assessee then filed a second appeal before the Tribunal.
Held
The Tribunal condoned the delay in filing the first appeal after finding a bonafide reason and sufficient cause, related to incorrect email communication. The Tribunal set aside the impugned order of the CIT(A) and remanded the case back to the CIT(A) to decide the delay aspect first, and then the merits if needed. The assessee was directed to file a formal application for condonation of delay.
Key Issues
Whether the delay in filing the first appeal before the CIT(A) is justifiable and if the ex-parte order passed by the CIT(A) without proper service of notice and opportunity of hearing is valid.
Sections Cited
Section 253 of the income tax Act 1961, Section 147, Section 144B, Section 69A, Section 246A, Section 250, Section 144, Section 271AAC (1)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI B.M. BIYANI & SHRI PARESH M JOSHI
647/Ind/2025 the Assessee is aggrieved by the order bearing Number:-ITBA/NFAC/250/2024-25/1066202361(1) dated 28.06.2024 passed by the Ld. CIT(A) u/s 250 of the Act, which is herein after referred to as the “Impugned order”.
The Relevant Assessment year is 2017-18 and the Page 1 of 10 - A.Y.2017-18 corresponding previous year period is from 01.04.2016 to 31.03.2017
2. Factual Matrix 2.1 That as and by way of an Assessment order made u/s 147 RWS 144B of the Act, the total income of the Assessee was computed & assessed at Rs. 14,41,320/-. The total income as per the return of income was at Rs.2, 41,320/-.
The addition/variation of Rs.12, 00,000/- was made u/s 69A of the act. That the aforesaid assessment order bears no:
- ITBA/AST/S/147/2021-22/1041532517(1) and that the same is dated 24.03.2022 which is hereinafter referred to as the “impugned assessment order”.
2.2 That the Assessee being aggrieved by the aforesaid “Impugned Assessment Order” prefers the first appeal u/s 246A of the Act before the Ld. CIT (A) who by the 1st “Impugned Order” has dismissed the appeal of the Assessee on the grounds & reasons stated therein. The core grounds & reasons for the dismissal of the 1st appeal were as under:-
“2. Decision Page 2 of 10 ABDE ALI - A.Y.2017-18
2.1 As mentioned at the outset, against the Assessment order u/s 147 r.w.s 144 of the Act dated 24.03.2022, the appellant filed an appeal vide Form No.35 dated 18.10.2023, resulting in a delay of 543 days in filing appeal. In Column No. 2(c), the appellant has mentioned the date of service of the Assessment order u/s 147 r.w.s 144 as 24.03.2022. However, his claim regarding service of Notice of Demand on the said date is unsubstantiated. It is a fact that proceedings in the department have been digitized and service of statutory notices/orders etc. is done via digital platform on real-time basis. The contention of the appellant regarding such inordinate delay in receipt of order/notice is thus unacceptable. In this era of computerization it is the duty of assessees/appellants to keep track of proceedings in their cases, The date of service of Assessment order dated 24.03.2022 claimed to be 21.09.2023 is a futile argument. This is a wrong fact as there is a delay in filing appeal. No document is attached alongwith Form No. 35 admitting to delay and requesting for condonation of delay. Even notice u/s 250 dated 21.06.2024 specifically pointing out this discrepancy of delay in filing appeal has not been complied with by the appellant. The query raised vide notice dated 21.06.2024 is as follows:-
"On perusal of the appeal memo, it is noticed that in your case assessment order was passed on 24.03.2022 and appeal was filed on 18.10.2023. Thus, it is evident that there is a delay of 543 days in filing of the appeal. However, in column No. 14 you have mentioned that there is no delay in filing the appeal as in column no. 2(c) of Form No. 35 1.e. 'Date of service of Order/Notice of Demand, you have mentioned the date of service as 21.09.2023. The assessment order was passed under faceless proceedings and was digitally issued to the appellant well in lime. However, you have not stated as to why the date of service of Order/Notice of Demand was taken by you as 21.09.2023
In view of the above, you are hereby requested to submit the reasonable cause alongwith supporting documents for late filling of the appeal by 27.06.2024 so that the issue under consideration can be examined on merits."
2.2 There is a statutory limit prescribed for filing of appeal in the Act. The invocation of the power to condone any delay, major or minor, in observing such time limit is possible only on the satisfaction of the CIT (Appeal) regarding the appellant having been unable to file the appeal in time due to sufficient cause. The appellant is not entitled to automatic admission of appeal filed after the time limit. xxxxxxxxxxxxx
Page 3 of 10 - A.Y.2017-18
2.10 In view of the facts as discussed hereinabove and the judicial decisions on the matter of delay in filing appeals, this appeal is not admitted for adjudication as it is delayed and not filed within the time limit provided and the reason provided by the appellant does not fall within the ambit of sufficient cause for the delay. 3. In the result, the appeal is dismissed as not admitted.”
2.3 That the Assessee being Aggrieved by the “Impugned Order” has preferred the instant second appeal before this Tribunal and has raised the following grounds of appeal in the form No. 36 against the “Impugned Order” which are as under:-
“1. On the facts and circumstances of the case and in law the learned CIT(A) erred in sending notices on wrong email-id l.e.. sidfin@gmail.com instead of abdealiloomwala@gmail.com as stated in Form 35. The Appellant prays that the EXPARTE order of CIT(A) passed without serving the notices on correct email id be directed to be quashed and set aside.
2. On the facts and circumstances of the case and in law the learned CIT(A) erred in not providing adequate consideration for appellant submission. The Appellant prays that the EXPARTE order of CIT(A) passed without giving proper consideration be directed to be quashed and set aside.
3. On the facts and circumstances of the case and in law, the learned Commissioner of Income tax (Appeals) ("CIT(A)") erred in exparte dismissing the appeal of the Assessee and thereby confirming the addition made by the Assessing Officer. The Appellant prays that the said order be set aside to the file of AO for hearing on merits.
The impugned order has been passed in a haste manner, without giving proper opportunity of hearing to the Appellant. The Appellant prays that the order being illegal, unwarranted and in gross violation of principles of natural justice be directed to be quashed and consequent addition deleted.
On the facts and circumstances of the case and in law the CIT(A) erred in confirming the addition of Rs. 12,00,000/- under Page 4 of 10 - A.Y.2017-18
Section 69A of the Act. The Appellant prays the said addition be directed to be deleted 6. The Appellant craves leave to add amend any or all grounds at the time of hearing.”
Record of Hearing 3.1 The hearing in the matter took place before this Tribunal on 23.02.2026 when the Ld. AR for & on behalf of the Assessee appeared before us & interalia contended that the “Impugned Order” is bad in law, illegal & not Proper. It is in the violation of the principles of natural justice. It therefore deserves to be set aside. It was next contended that there was a delay of 330 days in filing the instant appeal. It was submitted that the date of the impugned order is dated 28.06.2024 and date of filing of the instant appeal is 23.07.2025. It was stated that in the form no:-35 at the first appellate stage dated 18.10.2023 the email address was abdealiloomwala@gmail.com whereas the notice(s) u/s 250 of the act came to be served at sidfin@gmail.com which did not belong to the assessee. In this regard our attention was invited to paper book page 3 wherein email id referred to is sidfin@gmail.com. It was next submitted that the assessee
Page 5 of 10 - A.Y.2017-18 came to know of about the impugned order when logged on to the portal. Upon logging in the said “impugned order” was found. It was submitted that delay has happened due to bonafide reason and sufficient cause is shown. The delay should be condoned. An application for condonation of delay along with an affidavit in support dated 21.02.2026 is placed on record. The Ld. DR appearing for the revenue left it to this tribunal to take appropriate call as aspect of delay condonation as per its wisdom. We after perusing the material on record and after hearing both the parties on delay aspect are of the considered view that sufficient cause has been shown in respect of condonation of delay and accordingly we condone the delay. The appeal is admitted and taken up for hearing.
3.2 In so far as merits of the case are concerned it was submitted that the impugned assessment order is under section 144 of the Act. There was only apart compliance on 03.12.2021 which was covid period. ROI was not filed in response to notice dated 31.03.2021 within time prescribed. Part reply is reproduced by Ld. AO in Para 3.3
Page 6 of 10 - A.Y.2017-18 of the impugned assessment order. In so far as the “impugned order is concerned it was submitted that on account delay the first appeal was not admitted. There was a delay of 543 days before the Ld. CIT (A). The “impugned order” even otherwise was an ex-parte order as notice was sent on some other email id which did not belong to the assessee. Covid-19 lockdown second wave too was pleaded. In brief it was submitted that in the assessment proceedings as well as at the first appellate proceedings notice(s) were sent on sidfin@gmail.com which did not belong to the assessee. Per contra the Ld. DR for and on behalf of the revenue pleaded that with the amendment made in the act now even the Ld. CIT (A) have been vested with power of remand and in so far delay before the Ld. CIT (A) is concerned it would be fair enough that necessary call be taken up the Ld. CIT (A) in this regard afresh. Hearing was concluded.
Observations Findings & conclusions 4.
Page 7 of 10 - A.Y.2017-18 4.1 We have to decide the legality, validity and proprietary of the “impugned order” basis records of the case & the rival submission canvassed before us.
4.2 We have carefully perused the records of the case and have heard the submissions.
4.3 We basis records of the case & after hearing & upon examining the rival contentions of the Ld. AR & the Ld. DR canvassed before us, are of the considered opinion that the “impugned assessment order” is under section 144/144B of the Act and a part reply is on record which is reproduced by the Ld. AO in the “impugned assessment order”. In so far as “impugned order” is concerned the dismissal is not on merits but on account of delay of 543 days in preferring the first appeal.
In these facts and circumstances we deem it fit to set aside the impugned order and remand the case back to the file of the Ld. CIT (A) who shall decide first the delay aspect and thereafter merits if need arises. The assessee is directed to file an application for condonation of delay for 543 days delay in filing the first appeal. The assessee is wrong in stating that there was no delay in column no:-14 of form no:-35. The Ld. CIT (A)
Page 8 of 10 - A.Y.2017-18 is directed to decide such application of condonation of delay first & then basis merits if need arises. If the delay upon examination of application of condonation of delay is found to be sufficient and condonable then the Ld. CIT (A) may proceed to decide the first appeal basis merit as he/she deems fit and proper.
4.4 In view of the premises drawn up by us we set aside the “impugned order” & remand the case back to the file of Ld. CIT (A) with directions as aforesaid.
5 Order 5.1 In the result the “Impugned order” is set aside as and by way of remand back to the file of the Ld. CIT (A) with directions as aforesaid.
5.2. The appeal is allowed for statistical purpose. 5.3 ITA No: - 648/Ind/2025 AY 2017-18 deals with issue of Penalty u/s 271AAC (1) of the act and the impugned penalty Order is dated 22.09.2022 wherein a penalty of Rs. 92700/- is Imposed and same is upheld by the Ld. CIT (A) wide impugned Order no: - ITBA/NFAC/S/250/2024-25/1066202599(1) dated
Page 9 of 10 - A.Y.2017-18 28.06.2024. All other facts and the circumstances are more or less Similar and identical. Hence even this appeal no:-
5.4 In result impugned order in ITA No: - 648/Ind/2025 AY 2017-18 is set aside back to the file of Ld. CIT (A) with direction as aforesaid. 5.5 Both the appeals are allowed for statistical purpose.
Pronounced in open court on 06.03.2026.