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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 01.11.2022 passed by learned Commissioner of Income-Tax (Appeals)-NFAC [“CIT(A)”], which in turn arises out of intimation of assessment dated 15.11.2019 passed by learned CPC, Bangalore [“AO”] u/s 143(1) of Income-tax Act, 1961 [“the Act”] for Assessment-Year [“AY”] 2018-19, the assessee has filed this appeal on following grounds:
R.M. Auto Link P.Ltd., Bhopal
On the facts and circumstances of the case and in law the Ld. CIT(A) erred in dismissing the appeal arbitrarily on the alleged ground that the appeal has not been presented within prescribed period. The Appellant prays that the impugned order be set aside to be decided on merits of the case.
On the facts and circumstances of the case and in law the Ld. CIT(A) erred in not considering that the order against which appeal was filed was received on 31.12.2019 as per Form 35 and appealed on 15.01.2020 which is within the time period. The appellant prays that the incorrect observation and consequent decision of CIT(A) be set aside and he be directed to decide the appeal on merits of the case. 2. The registry has informed that the present appeal is delayed by 299 days and therefore time-barred. Ld. AR for assessee submitted that the assessee has filed an application for condonation of delay supported by an affidavit on stamp. Drawing our attention to same, Ld. AR submitted assessee’s stand that in Form No. 35, being appeal memo filed to CIT(A), the assessee mentioned email id: accounts.bhopal@rajpalhonda.com and also mentioned “No” against the space asking “Whether notices/communication may be sent on email?”. Despite this, the CIT(A) sent notices of hearing as well as impugned order through email and that too to a different email address: rajpalhonda@rediffmail.com. Therefore, neither the notices of hearing nor the impugned order came to the knowledge of assessee. It is only when the assessee logged in departmental website on 10.10.2023 for filing of return of subsequent AY 2023-24 that the assessee came to know that the impugned order had been passed. Immediately, the assessee arranged to file appeal to ITAT on 27.10.2023 without any delay. Ld. AR submitted that there is no lapse, lethargy, negligence, mala fide intention or ulterior motive of assessee in making delay and the assessee does not stand
R.M. Auto Link P.Ltd., Bhopal to derive any benefit because of delay. He prayed to condone the delay. Ld.
DR for Revenue did not show any objection. 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 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.
On perusal of impugned order, we find that the CIT(A) has passed an ex-parte order due to non-compliances of notices of hearing by assessee.
Further, in operative part, the CIT(A) has passed following order: R.M. Auto Link P.Ltd., Bhopal R.M. Auto Link P.Ltd., Bhopal
Thus, the notable point here is such that the CIT(A) has observed delay of 30 days in filing appeal before him and in absence of any explanation from assessee, did not condone the delay and dismissed appeal. In Ground No. 1, re-produced in the beginning, the assessee has prayed thus “The Appellant prays that the impugned order be set aside to be decided on merits of the case.” Therefore, considering the fact that the CIT(A)’s order is ex-parte; the notices of hearing fixed by CIT(A) did not come to the knowledge of assessee having been sent by CIT(A) to a different email address and the prayer of assessee in Ground No. 1, we are inclined to remand this matter to the file of CIT(A) for adjudication afresh after giving opportunities of hearing to assessee. Needless to mention that the assessee shall also stay vigilant to pursue the hearings as may be fixed by CIT(A). Ordered accordingly.
Resultantly, this appeal of assessee is allowed for statistical purpose.
Order pronounced in open court on 08.04.2024.