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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI VIJAY PAL RAO & SHRI B.M. BIYANI
आदेश / O R D E R
Per B.M. Biyani, A.M.:
Feeling aggrieved by appeal-order dated 14.03.2023 passed by learned Commissioner of Income-Tax (Appeals)-NFAC, Delhi [“CIT(A)”] which in turn arises out of assessment-order dated 04.12.2017 passed by learned ITO- 2(4), Bhopal [“AO”] u/s 143(3) of Income-tax Act, 1961 [“the Act”] for Assessment-Year [“AY”] 2014-15, the assessee has filed this appeal.
Nanda Wadhwani, Bhopal
The registry has informed that the present appeal is delayed by 199 days and therefore time-barred. Ld. AR for assessee submitted that the assessee has filed a condonation-application supported by an affidavit.
Referring to same, Ld. AR explained that (i) the assessee is not technology friendly and that is why mentioned “No” against “Whether notices/ communication may be sent on mail?” in Form No. 35 filed to CIT(A).
Despite this, the notices of hearing as well as order of first-appeal were sent by CIT(A) on the e-mail, (ii) that neither the notices nor the order of first- appeal have been served physically upon the assessee, and (iii) that the assessee logged income-tax portal in Nov, 2023 and then only came to know about the impugned order having been passed ex-parte. Immediately, the assessee filed present appeal on 28.11.2023 without further delay. Ld. AR very humbly submitted that there is no deliberate lethargy, negligence, mala fide intention or ulterior motive of assessee in making delay and the assessee does not stand to derive any benefit because of delay. He further submitted that the sole reason of delay is as explained in the condonation- application. Ld. DR for Revenue left the matter to the wisdom of Bench. We have considered the explanation advanced by assessee and in absence of any contrary fact or material on record, the assessee is found to have a sufficient cause for delay in filing present appeal. We find that 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 Nanda Wadhwani, Bhopal 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. Thus, taking into account the provision of section 253(5) and the decision of Hon’ble Supreme Court, we take a judicious view, condone delay, admit appeal and proceed with hearing.
Ld. AR next submitted that the CIT(A), while conducting first-appeal, has served the notices of hearing on e-mail of assessee against the demand of physical notices by assessee. Hence, in absence of service through physical mode, the assessee could not attend hearings fixed by CIT(A) which has led to the passing of ex-parte order in first-appeal. Ld. AR further submitted that the assessee is ready and willing to make representation before CIT(A) if an opportunity is given and prays that the present matter should be remanded to the file of CIT(A) for a proper adjudication of the grounds/issues raised by assessee in first-appeal. Ld. DR for revenue agrees with the prayer of Ld. AR but makes a request to direct the assessee to represent his case before CIT(A) and do not seek unnecessary adjournments.
In view of consensus by both sides and also having regard to the principle of natural justice and fair play, we deem it fit to give one more opportunity to assessee so that the assessee can represent his case before CIT(A) for a proper adjudication. Accordingly, we remand this matter back to the file of CIT(A) for a proper adjudication on merit after giving opportunity
Nanda Wadhwani, Bhopal 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 CIT(A) and do not seek unnecessary adjournments failing which the CIT(A) shall be at liberty to pass appropriate order in accordance with law.
Resultantly, this appeal is allowed for statistical purpose.
Order pronounced in open court on 05.06.2024.