ABDE ALI,INDORE vs. ITO , BURHANPUR

Per Paresh M Joshi, J.M.:

These two Appeals are filed by the Assessee under section

253 of the income tax Act 1961,[ herein after referred to as

the Act for the sake of convenience & brevity] before this

tribunal, as & by way of a second appeal .In the ITA No:-

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

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corresponding previous year period is from 01.04.2016 to

31.03.2017

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

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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

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

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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.

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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.”

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

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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

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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.

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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)

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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

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28.06.2024. All other facts and the circumstances are more or

less Similar and identical. Hence even this appeal no:-

648/Ind/2025 AY 2017-18 is disposed off mutatis mutandis in

ITA No.647/Ind/2025.

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.

Sd/- Sd/-

(BHAGIRATH MAL BIYANI) (PARESH M JOSHI) ACCOUNTANT MEMBER JUDICIAL MEMBER

Indore Dated : 06/03/2026 Patel/Sr. PS Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPY Senior Private Secretary Income Tax Appellate Tribunal Indore Bench, Indore

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