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Facts
The assessee filed an appeal after a delay of 74 days. The delay was attributed to the tax consultant falling ill and needing to travel to his native place. The CIT(A) had passed an ex-parte order without deciding the appeal on merits.
Held
The Tribunal condoned the delay in filing the appeal, holding that the reasons were beyond the assessee's control. The Tribunal set aside the ex-parte order of the CIT(A) and restored the appeal back to the CIT(A)'s file for adjudication on merits.
Key Issues
Whether the delay in filing the appeal can be condoned and if the ex-parte order passed by the CIT(A) without deciding on merits is sustainable.
Sections Cited
Section 250 of the Income Tax Act, 1961
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Income Tax Appellate Tribunal, “G” BENCH, MUMBAI
Before: SHRI BR BASKARAN, AM & SHRI ABY T. VARKEY, JM
O R D E R
PER ABY T. VARKEY, JM:
This is an appeal preferred by the assessee against the order of the Ld. Commissioner of Income Tax (Appeals)/NFAC, Delhi dated 08.05.2023 for AY. 2011-12.
At the outset, we note that the appeal has been filed after the time barring date and thus there is a delay of 74 days in filing the appeal. The assessee has filed an application for condonation of delay and in support of it has filed an affidavit (duly notarized) explaining the cause for delay. And on perusal of the affidavit, it transpires that assessee had received the impugned order of the Ld. CIT(A) on 08.05.2023, and thereafter, he handed over the same to tax consultant/Advocate Mr. Bhanu Pratap Sing who unfortunately fell ill (Acute upper respiratory tract infections), and the Doctor advised him to take medication and complete bed rest. And since his family was in 2 A.Y. 2011-12 Suhana Complex Pvt Ltd., his native place at Rajasthan, he went there and, therefore he couldn’t file the appeal on or before 06.07.2023. Thus there was a delay of 74 days in filing the appeal before the Tribunal, which is not intentional. Taking into consideration all the facts (supra), we are of the view that the cause for the delay was due to reasons beyond the control of the tax consultant / advocate; and assessee should not be penalized for the delay caused by tax-consultant. Therefore, we are inclined to condone the delay and admit the appeal for hearing.
It is noted that the Ld. CIT(A) has passed an ex-parte order qua the assessee. According to the Ld. CIT(A) he had issued notice twice (i.e on 03.02.2023 & 24.04.2023) and since he found that the assessee had not submitted any reply by 01.05.2023, he was pleased to dismiss the appeal of the assessee without going into merits of the appeal preferred by the assessee.
We do not countenance the impugned action of the Ld. CIT(A). According to us, the Ld. CIT(A) was bound to dispose of the appeal as prescribed under Sub-Section 6 of Section 250 of the Income Tax Act, 1961 (hereinafter “the Act”). Since the Ld.CIT(A) has not decided the appeal on merits as prescribed by the law, we are inclined to set aside the impugned order of the Ld. CIT(A) and restore the appeal back to his file with a direction to adjudicate the grounds raised by the assessee in accordance to the law; and assessee is directed to be diligent and file its written submissions / material to support its ground of appeal and request for hearing in accordance to the Rules and the Ld.CIT(A) to adjudicate/pass order in accordance to law.