KAILASH BAND,INDORE vs. INCOME TAX OFFICER 1(1), INDORE
No AI summary yet for this case.
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 01.06.2023 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.
Page 1 of 4
Shri Kailash Band,Indore Vs. NFAC ITO 1(1), Indore. ITA No. 346/Ind/2023- AY 2011-12
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
Page 2 of 4
Shri Kailash Band,Indore Vs. NFAC ITO 1(1), Indore. ITA No. 346/Ind/2023- AY 2011-12
assessee. Ld. DR for Revenue did not have any objection against both
prayers of Ld. AR.
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
Page 3 of 4
Shri Kailash Band,Indore Vs. NFAC ITO 1(1), Indore. ITA No. 346/Ind/2023- AY 2011-12
due to which if the CIT(A) issues notices of hearings through e-mail, the
assessee would stay vigilant and attend the proceedings. Ld. AR agrees.
Resultantly, this appeal of assessee is allowed for statistical purpose.
Order pronounced in open court immediately on conclusion of hearing and subsequently reduced in writing on 17.01.2024.
Sd/- sd/- (VIJAY PAL RAO) (B.M. BIYANI) JUDICIAL MEMBER ACCOUNTANT MEMBER Indore िदनांक /Dated : 17.01.2024. CPU/Sr. PS Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPYAssistant Registrar Income Tax Appellate Tribunal Indore Bench, Indore
Page 4 of 4
