SHREYANSH JAIN,CHENNAI vs. ITO , NON CORPORATE WARD - 9 (4), CHENNAI

This appeal by the assessee is arising out of the order of the Commissioner of Income-Tax (Appeals)-10, Chennai in dated 22.11.2019. The assessment was framed by the Income Tax Officer, Non-Corporate Ward-9(4), Chennai for the assessment year 2013-14 u/s.143(3) of the Income Tax Act, 1961 (hereinafter the ‘Act’) vide order dated 30.03.2016.

At the outset, it is noticed that this appeal is time barred by 1040 days. The facts relating to this delay are that the order of CIT(A) dated 22.11.2019 claimed to have been received or communicated to the assessee, as per Form 36 on 28.11.2019. The appeal should have been filed on or before 27.01.2020 but actually appeal was filed on 02.12.2022, thereby there is a delay of 1040 days as communicated to the assessee. The ld.counsel for the assessee filed condonation petition supported by affidavit and he tries to explain the condonation that the assessment was completed u/s.143(3) of the Act by the AO vide order dated 31.03.2016. Subsequently, the AO issued notice u/s.154 of the Act and passed order u/s.154 of the Act revising the long term capital gain vide order dated 18.06.2018. The assessee filed appeal before CIT(A) and the CIT(A) passed appellate order on 22.11.2019 which is under challenge before the Tribunal by filing appeal before Tribunal on 02.12.2022. The ld.counsel for the assessee stated that the assessee could not file appeal because the notices of hearing of CIT(A) was not served to him personally and hence, as noted, the order of CIT(A) is ex-parte. Moreover, the parents of assessee was critically ill and hence, the CIT(A) dismissed the appeal vide order dated 22.11.2019 for not attending the hearing. According to ld.counsel, the family members of assessee were affected due to - 3 - Covid-19 and coupled with other personal problems, could not contact the concerned Income-tax consultant till November, 2022. Hence, he contacted the Income-tax Practitioner, (Retd.) Commissioner of Income Tax, Shri S. Sankaralingam for preparing the appeal, which was sent to him on 25.11.2022. Accordingly, paid the appeal fee of Rs.10,000/- on 01.12.2022 and finally, appeal was filed only on 02.12.2022 with a delay of 1041 days. The ld.counsel for the assessee contended that the assessee was looking after the old age parents and Covid-19 affected family members and most of the period starting from 23.03.2020, the Hon’ble Supreme Court granted exemption from filing of appeal till 31.05.2022. Therefore the delay cannot be attributed to the assessee. According to him, the initial delay of two months and thereafter seven months can be attributed to assessee but as explained, the assessee’s parents were critically ill and their family members were affected due to Covid-19, the assessee could not file the appeal. He further stated that the delay in filing of appeal is neither willful nor wanton. Hence, he requested for condonation of delay.

On the other hand, the ld.Senior DR opposed condonation of delay and stated that the delay is extraordinary and delay cannot be - 4 - attributed to Covid period only. Hence, he asked the Bench to dismiss the appeal inilimine.

We have heard rival contentions and gone through the facts and circumstances of the case. We noted that the major part of delay from March, 2020 to May, 2022 i.e., almost 26 months out of the total delay of 36 months is attributable to Covid-19. Taking the cause being ill parents and other family members affected by Covid- 19, we feel that there is a reasonable cause in not filing the appeal in time. Seeing the large amount of delay of 1041 days, we are inclined to impose a cost on the assessee, so that he should not be negligent in assisting the Revenue authorities in tax computation. Accordingly, we impose a cost of Rs.25,000/- to be paid to the Tamil Nadu State Legal Services Authority at Hon’ble High Court of Madras within a month’s time from the date of receipt of this order. Hence, seeing circumstances and cost adduced to assessee, we condone the delay and admit the appeal by levying a cost of Rs.25,000/- (Rupees twenty five thousand only). In term of the above, the appeal of the assessee is accordingly admitted for adjudication.

Further, the ld.counsel for the assessee took us through the order of CIT(A) and stated that the CIT(A) has not at all adjudicated

When these were confronted to ld. Senior DR, he stated that the CIT(A) has allowed three opportunities but we noted that the CIT(A) has not at all deliberated on merits and dismissed the appeal of assessee simpliciter for default on the part of the assessee. The CIT(A) is duty bound to decide the issue on merits but he failed to do so. Hence, we set aside the order of CIT(A) and remand the matter back to his file for fresh adjudication. Needless to say that - 6 - the assessee will pay the cost of Rs.25,000/- to the Tamil Nadu State Legal Services Authority at Hon’ble High Court of Madras and produce the receipt before the CIT(A) and the CIT(A) will allow reasonable opportunity of being heard to the assessee and assessee is also directed to represent his case as and when notice is issued, otherwise adverse view can be taken against the assessee.

In the result, the appeal filed by the assessee is allowed for statistical purposes.