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Income Tax Appellate Tribunal, ‘B’ BENCH, CHENNAI
Before: SHRI MAHAVIR SINGHAND SHRI S.R. RAGHUNATHA
आदेश /O R D E R
PER MAHAVIR SINGH, VICE PRESIDENT:
This appeal by the assessee is arising out of the order of the Commissioner of Income-Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi in Order No.ITBA/NFAC/S/250/2022- 23/1042664423 (1) dated 08.04.2022. The assessment was framed by the Income Tax Officer, Ward 4, Puducherry for the assessment year 2017-18 u/s.143(3) of the Income Tax Act, 1961 (hereinafter the ‘Act’) vide order dated 19.12.2019.
At the outset, the ld.counsel for the assessee stated that this appeal is barred by limitation by 569 days and assessee has filed petition for condonation of delay supported by affidavit. The brief facts relating to this condonation petition are that the order of CIT(A) dated 08.04.2022 claimed to have been received by assessee on 08.04.2022 and as depicted in the Form No.36. As per Form 36, the order of CIT(A) was served on 08.04.2022, this is an admitted fact. The ld.counsel for the assessee stated that the order of CIT(A) was sent on e-mail ID of the assessee and assessee was not conversant with e-mail and e-proceedings and hence, he could not file the appeal. Further, he stated that the assessee being a wholesale dealer for ITC and has to deal with the unorganized retailers who lift the order and sell it in villages in cycle which retailers had refused to obtain PAN and register under GST. He stated that the assessee was put to huge trouble and due to his old age was under mental pressure leading to illness. The ld.counsel stated that this case looks for mercy and even there is reasonable cause in filing of appeal with a delay of 569 days. Admittedly, the appeal was filed on 28.12.2023 with a delay of 569 days.
2.1 On the other hand, the ld. Senior DR contested the condonation petition and stated that there is no reasonable cause.
- 3 - 2.2 After hearing rival contentions and going through the facts of the case, we are of the view that delay can be condoned with a cost of Rs.15,000/-. Hence, seeing circumstances and cost adduced to assessee, we condone the delay and admit the appeal by levying a cost of Rs.15,000/- (Rupees fifteen thousand only). The appeal of the assessee is accordingly admitted for adjudication.
3. The ld.counsel for the assessee drew our attention to Ground Nos.2 & 3, which read as under:- “2. The NFAC, Delhi erred in dismissing the appeal ex-parte and ought to have appreciated that any order passed in gross violation of principles of natural justice should be reckoned as nullity in law.
The NFAC, Delhi failed to appreciate that the provisions of section 250(6) of the Act were not followed in passing the impugned order and hence ought to have appreciated that ex-parte order under consideration was passed out of time, invalid, passed without jurisdiction and not sustainable both on facts and in law.”
The ld.counsel for the assessee in view of the above grounds, drew our attention to the assessment order and stated that the only issue is as regards to cash deposits during demonetization period in specified bank notes (SBNs) added by AO amounting to Rs.14,45,000/-. The ld.counsel stated that the assessee is running a business concern and deals in wholesale trading in cigarettes i.e., agency of ITC. The ld.counsel for the assessee then drew our
- 4 - CIT(A) and stated that the order of CIT(A) is just an ex-parte order and on merits, he summarily dismissed the appeal of assessee without considering the factual situation. When it was pointed out that there are seven opportunities given by CIT(A), which are noted in the order of CIT(A) at page 3 of the order but there was no response from the assessee or submission filed, the ld.counsel could not controvert.
On the other hand, the ld.Senior DR opposed setting aside the order of CIT(A).
We have heard rival contentions and gone through facts and circumstances of the case. We noted that admittedly the order of CIT(A) is ex-parte and even the CIT(A) has not passed a speaking order. We are conscious of many adjournments given by the CIT(A) and assessee’s non-adherence. Admittedly, assessee is non- compliant but we have already imposed a cost of Rs.15,000/- for condonation of delay and considering the facts and circumstances, we set aside the order of CIT(A) and remand the matter back to his file for fresh adjudication. The cost levied of Rs.15,000/- (Rupees fifteen thousand only) will be paid to the Tamil Nadu State Legal Services Authority at Hon’ble High Court of Madras within a month’s
- 5 - time from the date of receipt of this order. The assessee will pay this cost and produce the receipt before the CIT(A). In term of the above, we restore the matter back to the file of the CIT(A) for fresh adjudication. Needless to say that 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.
Order pronounced in the open court at the time of hearing on 25th April, 2024 at Chennai.