KAILASH BAND,INDORE vs. INCOME TAX OFFICER 1(1), INDORE

Feeling aggrieved by appeal-order dated 01.06.2023 passed by learned Commissioner of Income-Tax (Appeals)-NFAC, Delhi [“CIT(A)”], which in turn arises out of assessment-order dated 10.11.2018 passed by learned ITO-1(1), Indore [“AO”] u/s 147 read with 143(3) of Income-tax Act, 1961 [“the Act”] for Assessment-Year [“AY”] 2011-12, the assessee has filed this appeal.

The registry has informed that the present appeal is delayed by 44 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. Ld. AR submitted that the CIT(A), while conducting first- appeal, has served notices of hearing as well as order of first-appeal on e- mail of assessee although the assessee has specifically mentioned “No” against the column provided in Form No. 35 asking “Whether notices/communication may be sent on email?” Ld. AR submitted that the assessee is a senior citizen-cum-agriculturist residing in a smaller village known as Balgara in Tehsil Sanwer, District – Indore. Therefore, in absence of service through physical mode as per demand of assessee in Form No. 35, the assessee could neither attend the proceeding before CIT(A) nor file present appeal in time. This has led to passing of ex-parte order by CIT(A) as well as delay of 44 days in filing appeal. Ld. AR submitted that the assessee ultimately received physical copy of order from department on 01.09.2023 when it was served upon him by post and immediately thereafter the assessee filed appeal on 13.09.2023 without any delay. Ld. AR very humbly submitted that there is no 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. Therefore, the delay ought to be condoned. Simultaneously, Ld. AR also made a prayer to remand this matter to the file of CIT(A) for a proper adjudication after giving opportunity to Shri Kailash Band,Indore Vs. NFAC ITO 1(1), Indore.

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. Thus, taking into account the provision of section 253(5), we condone delay and admit this appeal. At the same time, we also find that the CIT(A) has passed ex-parte order dismissing appeal of assessee for non-prosecution but without adjudicating assessee’s grounds as per mandate of section 250(6) of the Act. The said section 250(6) provides “The order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision.”. Therefore, the impugned first appeal-order passed by Ld. CIT(A) deserves to be set aside and the matter is fit for remand to the file of CIT(A) for a proper adjudication. Accordingly, we are remanding this matter to the file of CIT(A) for a proper adjudication after giving opportunity of hearing to assessee. The assessee is also directed to ensure participation in the hearings fixed by Ld. CIT(A) and do not seek unnecessary adjournments. It was also made clear to the assessee that since faceless and technological systems are in operation in present times

Resultantly, this appeal of assessee is allowed for statistical purpose.