KALPANA NARWARE,BETUL vs. INCOME TAX OFFICER, BETUL

In view of the facts and circumstances detailed hereinabove, it is respectfully submitted that the delay in filing the present First Appeal was caused by exceptional and bona fide reasons beyond the control of the Appellant, including reliance on a Chartered Accountant who had misrepresented that the appeal had been filed, the disruptions arising from the COVID-19 pandemic, and the Appellant's and her family's unfamiliarity with the procedures of the Income Tax Department. The delay was neither intentional nor deliberate. In the interest of justice, it is, therefore, most humbly prayed that this Hon'ble Tribunal may kindly condone the delay in filing First Appeal before National Faceless Appeal Centre and admit the Appeal for adjudication on its merits.

The averments made by assessee in above application, which are selfexplanatory and which do not require repetition, were discussed. Further, the Ld. AR has also filed the prints-out of mobile/whatsapp chat which took place between assessee and earlier counsel to demonstrate that the assessee paid fee to counsel and made enquiries of filing of appeal to CIT(A) from time to time. The whatsapp chat filed by assessee prima facie shows that the assessee exercised due diligence for filing of first appeal to CIT(A). The Ld. DR for revenue left the matter to the wisdom of bench. We have considered the averments made by assessee in the application and also the whatsapp chat filed by assessee to show the negligence on the part of counsel and in absence of any contrary fact or material on record, the assessee is found to have a "sufficient cause" for delay in filing first-appeal to CIT(A) in time. Furthermore, the assessment-order was passed by AO on 25.10.2019 and the assessee was having 30 days's statutory time expiring on 25.11.2019 for filing appeal to CIT(A) as against which the assessee actually filed appeal on 15.04.2021 after a delay of 508 days. But, however, we find that out of total period from 25.11.2019 to 15.04.2021, the substantial period of 15.03.2020 to 15.04.2021 was during Covid-19 pandemic and the Hon'ble Supreme Court also granted extension in Suo Motu Writ Petition (C) No. 3 of 2020 read with Misc. Applications for filing of appeals w.e.f. 15.03.2020 under all laws. Therefore, considering the entire conspectus of matter, the CIT(A) ought to have judiciously considered the reasoning explained by assessee. We find that section 249(3) empowers the CIT(A) to admit an appeal after expiry of prescribed time, if there is a sufficient cause for not presenting appeal within prescribed time. Similarly, the section 253(5) of the Act empowers the ITAT to admit an appeal after expiry of prescribed time, if there is a sufficient cause for not presenting appeal within prescribed time. It is also a settled position by Hon'ble Supreme Court in landmark decision in Collector, Land Acquisition Vs Mst. Katiji and others 1987 AIR 1353, 1987 2 SCC 387 that whenever substantial justice and technical considerations are opposed to each other, the cause of substantial justice must be preferred by adopting a justice-oriented approach. Therefore, taking a judicious note of the submissions made by assessee to CIT(A) in the light of provisions of section 249(3) r.w.s. 253(5) of the Act and the decision of Hon'ble Supreme Court, we condone the delay occurred at the stage of filing first-appeal before CIT(A).

On merit of case, Ld. AR for assessee submitted that the assessee has made part-participation during assessment-proceeding leading the AO to pass ex-parte order u/s 144 but the assessee has collected all evidences and compiled all details for making an effective representation before AO, therefore the present matter must be remanded to the file of AO. Ld. DR for revenue submitted that he has no objection against remand but the bench must give a strict direction to assessee for participation before AO. Accordingly, considering the facts submitted in Interlocutory Application; having regard to the principle of natural justice and also bearing in mind that no prejudice would be caused to revenue if the present matter is restored at the level of AO for an appropriate adjudication in accordance with law, we condone the delay in first-appeal and also remand this matter back to the file of AO for adjudication afresh, at the risk and responsibility of assessee. The AO shall give necessary opportunity of hearing to assessee and pass an appropriate order uninfluenced by his earlier order. The assessee is also directed to remain vigilant and ensure participation in the hearings as may be fixed by AO and do not seek unnecessary adjournments failing which the AO shall be at liberty to pass appropriate order in accordance with law. Ordered accordingly.

Resultantly, this appeal is allowed for statistical purpose.