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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Per Vijay Pal Rao, JM :
This appeal by assessee is directed against the order dated 18.08.2022 of the Commissioner of Income Tax (Appeal), National Faceless Appeal Centre, Delhi for A.Y.2017-18.
There is a delay of 366 days in filing the present appeal the assessee has filed an application for condonation of delay which is supported by the affidavit. Ld. AR of the assessee has submitted
ITANo.399/Ind/2023 Saryu Devi Tiwari that the assesse is a Senior citizen about 80 years old. He has pointed out that the assessee has specifically mentioned that notice/communication shall not be send on e-mail ID however, the impugned order was sent on the E-mail ID of the son of the assessee which is not used by the assesse. Therefore, the assesse was not aware about the impugned order and hence, the delay is attributable to the technical reasons of non-service of the impugned order to the assessee. Thus, Ld. AR has pleaded that the delay in filing the appeal may be condoned and the appeal of the assessee be decided on merits. In support of his contention he has relied upon the judgment of Hon’ble Supreme court in case of Collector, Land Acquisition vs. Mst. Katiji AIR 1987 SC 1357.
On the other hand, Ld. DR has not seriously objected to the condonation of delay.
We have considered rival submissions as well as relevant material on record. In form no.35 the assessee has specifically mentioned that notices/communication may not be send on the E- mail ID. The impugned order was sent by the CIT(A) on e-mail ID and therefore, we find that the assessee was having a sufficient cause for not having to the knowledge of the impugned order sent on E-mail ID and consequently there was a delay of 366 days in filing the present appeal. Having regards to the facts and circumstances of the case and assesse is a senior citizen of about 80 years old we are satisfied that the assessee has explained a reasonable cause for the delay in filing the appeal and consequently
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ITANo.399/Ind/2023 Saryu Devi Tiwari the same is condoned. The assessee has raised following grounds of appeal:
“1. On the facts and circumstances of the case and in law the learned CT(A) erred in not appreciating that the Appellant is a senior citizen lady who does not use e-mail and therefore could not respond to the notices of hearing. The Appellant prays that the said exparte order be set aside to CIT(A) and oblige. 2. On the facts and circumstances of the case and in law the learned Commissioner of Income tax (Appeals) erred in dismissing the appeal exparte. The Appellant prays that the said order be set aside to CIT(A) for deciding the case on merits of the case. 3. The CIT(A) ought to have decided the appeal on the merits of the case and not dismissing the appeal for statistical purposes on technical grounds.” 4.1. The Ld. AR of the assesse has submitted that the CIT(A) has passed the impugned order ex-parte when there was no response to the notices issued by him. He has pointed out that notices were also sent by the CIT(A) to the E-mail Id of the son of the assessee and therefore, assessee was not aware about notice. Further the only income of the assessee is an agricultural income from more than 50 acres of land holding and therefore, the assessee has sufficient source of agricultural income for depositing the cash in the bank account but the CIT(A) has dismissed the appeal of the assessee ex-parte for non-prosecution. Thus, Ld. AR has pleaded that the matter may be set aside to the record of the AO/CIT(A) for fresh adjudication after considering the supporting evidence to explain the source of deposit made in the bank account.
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ITANo.399/Ind/2023 Saryu Devi Tiwari 5. On the other hand, Ld. DR has submitted that the AO has made an addition for want of supporting evidence and therefore, it will be appropriate if matter is set aside to the record of the AO for verification and examination of the evidence to be produced by the assessee.
We have considered rival submissions as well as relevant material on record. The CIT(A) has dismissed the appeal of the assesse for non-prosecution as well as not maintainable in para 3 to 4.1 as under:
“3. While verifying the appeal through Form No. 35 filed by the Appellant on ITBA portal, deficiency had been noted and intimated to the appellant vide DIN & Letter Nos.: ITBA/NFAC/S/25/2020- 21/1030589802(1) dated 12.02.2021 with the following deficiency: 1. Tax on Returned income not paid/ Particulars of payment not mentioned. 2. Appeal filed beyond time and application for condonation of delay not filed. 3.1In response to deficiency letter issued to appellant on 12.02.2021, the appellant failed to file any response. 3.2 Further, various notices under section 250 of the Act were issued to the appellant on 16.03.2021, 15.12.2021, 03.06.2022 and 03.08.2022 under section 250 of the Act vide which the appellant was requested to furnish reply in respect to notices issued, on ITBA module on or before 05.05.2021, 30.12.2021, 10.06.2022 and 12.08.2022 respectively. However, no reply to the deficiency has been filed by the appellant. DETERMINATION AND DECISION
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ITANo.399/Ind/2023 Saryu Devi Tiwari 4. Held: In view of facts and circumstances of the case, the appellant failed to remove the deficiency issued in the appeal filed. Sufficient opportunities were also afforded to the appellant through notices as mentioned in Para 3.1 and 3.2 vide which appellant was requested to provide the response against deficiency intimated, however the deficiency remained un-removed and no clarification/response has been provided against the same by the appellant. 4.1 The appellant failed to remove deficiency in the appeal filed. Therefore, in view of the provisions of Section 249(4)(b) of Income Tax Act, 1961, the appeal filed by the appellant cannot be admitted and is not maintainable. For statistical purposes, the appeal is treated as dismissed.” 6.1 Thus, the CIT(A) has raised two other objections of
maintainability of the appeal of the assessee. The first objection was
regarding non-payment of tax on return of income and secondly the
CIT(A) has also stated that the appeal was filed beyond the period of
limitation and application for condonation of delay not filed.
6.2 As regards the non-payment of self-assessment tax is
concerned we find that the assessee has not declared any income
as the assessee has claimed income of the assessee is not taxable
being agricultural income and therefore, the question of payment of
self-assessment tax does not arise.
6.3 The second objection regarding the filing of appeal beyond the
limitation is also contrary to the record. The assessee has stated in Page 5 of 7
ITANo.399/Ind/2023 Saryu Devi Tiwari form no.35 that the assessment order dated 26th September 2019
was served upon by the assesse on 01.10.2019 and the appeal was
filed on 31.10.2019 before the CIT(A) therefore, the appeal was
within the period of limitation and question for filing the application
for condonation of delay does not arise. Therefore, these two
objections of the CIT(A) on the maintainability of the appeal filed by
the assessee are unfounded and baseless.
6.4 Further the CIT(A) has summarily dismissed the appeal of the
assesse without deciding the same on merits for want of any
response on behalf the assesse to the notice issued by the CIT(A).
Since the assesse has explained the reasons for non-filing of
reply/participation in the proceedings that the notice were sent on
the e-mail ID which was not used by the assesse despite the
assessee has specifically stated in the form 35 that notices should
not sent/communicated through e-mail ID. Accordingly in the facts
and circumstances of the case when the CIT(A) has not decided the
appeal of the assessee on merits we are of the considered opinion
that the assessee be given one more opportunity to produce the
supporting evidences to explain source of cash deposit made in the
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ITANo.399/Ind/2023 Saryu Devi Tiwari bank account of the assesse. Hence, the impugned order of the
CIT(A) is set aside and matter is remanded to the record of the AO
for fresh adjudication after proper verification and examination of
the supporting evidences to be produced by the assessee. Needless
to say the assessee be given an appropriate opportunity of hearing
before passing fresh order
In the result, appeal of the assessee is allowed for statistical
purposes.
Order pronounced in the open court on 07.05.2024.
Sd/- Sd/- (B.M. BIYANI) (VIJAY PAL RAO) Accountant Member Judicial Member
Indore,_ 07.05.2024 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 Sr. Private Secretary Income Tax Appellate Tribunal Indore Bench, Indore
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