NAYAN PRAJAPATI,GOVIND COLONY vs. INCOME TAX OFFICER WARD-4(4) INDORE, INDORE

Feeling aggrieved by appeal-order dated 23.02.2024 passed by learned Commissioner of Income-Tax (Appeals)-NFAC, Delhi [“CIT(A)”] which in turn arises out of assessment-order dated 17.12.2018 passed by learned ITO- 4(4), Indore [“AO”] u/s 144/147 of Income-tax Act, 1961 [“the Act”] for Assessment-Year [“AY”] 2011-12, the assessee has filed this appeal.

Heard the learned Representatives of both sides and case records perused.

Ld. AR for assessee drew our attention to the impugned order passed by CIT(A) and pointed out that the Ld. CIT(A) has dismissed assessee’s first- appeal on the reasoning that the said appeal was time-barred having been filed on 23.03.2019 after expiry of 96 days from assessment-order dated 17.12.2018 passed by AO, which was beyond the statutory time-period of 30 days prescribed in section 249(2) of the Act. But the correct fact is that the assessment-order dated 17.12.2018 alongwith demand-notice u/s 156 was actually served upon assessee on 20.03.2019 which is clearly mentioned in the acknowledgement given by assessee to department at the time of service; the assessee’s acknowledgement with date and signature appearing on the demand-notice available in file of department as obtained by assessee through inspection of departmental record, is scanned and re-produced below:

Thus, Ld. AR submitted, the assessment-order though passed on 17.12.2018 was actually served upon assessee on 20.03.2019. The assessee has also mentioned these very details in the space prescribed in Form No. 35 filed to the CIT(A) as under:

Furthermore, the assessee has also filed a solemnized affidavit making averment that the assessment-order was served upon him on 20.03.0219.

In the light of above facts, Ld. AR submitted that the first-appeal was timely filed on 23.03.2019 after service of assessment-order/demand-notice on 20.03.2019 and as such there was no delay in filing first-appeal. Ld. AR, therefore, prayed to restore this matter to lower-authorities for adjudication on merit.

Ld. DR agreed to assessee’s submission but, however, submitted that the AO’s assessment-order was also ex-parte u/s 144 in absence of details from assessee, therefore the CIT(A) cannot carry this matter to its logical conclusion. Hence, in the situation, it would be more appropriate to restore this matter back to the level of AO instead of CIT(A). Ld. AR for assessee agreed.

In view of above submissions of parties, firstly we agree that the assessee filed first-appeal in statutory time after service of demand-notice, therefore there was no delay in filing first-appeal. We next agree to the consensus made by both sides and also having regard to the principle of natural justice and fair play, we deem it fit to remand this matter to AO for adjudication afresh after giving opportunity of hearing to the assessee uninfluenced by his earlier order in any manner. The assessee is also directed to 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.

Resultantly, this appeal is allowed for statistical purpose.