MOHAMMED TARIQ THAIMADATHIL,KOCHI vs. THE ITO , NON CORP WARD 1(5), KOCHI

There is a delay of 46 days in filing the appeal before the Tribunal. The learned Counsel for the assessee, drawing attention of the Bench towards Form- 35 has explained the cause of delay and pointed out that the order of Ld CIT(A) was sent via email to the assessee, which mode of service has been refused by the assessee in From-35 and hence there was a delay in filing the appeal before us.

The learned DR opposed the prayer of the assessee vis-à-vis condonation of delay of 46 days.

A perusal of Form -35 would show that assessee has said “No” for communication of notices to him via email, hence there was a reasonable cause for delay of 46 days. Therefore, we are of the view that delay happened in this case requires to be condoned. Now we decide the appeal.

The facts leading to the filing of this appeal are that the assessee is an individual filed his return of income for Assessment Year 2014-15 on 29.11.2014 declaring a total income of Rs.2,26,550/-. The case of the assessee was selected for scrutiny. During the course of assessment proceedings, the AO interalia observed that the assessee has paid interest and bank charges to M/s. Reliance Capital without deducting TDS @ 10%. Therefore, invoking the provisions of section 40(a)(ia), the AO disallowed a sum of Rs.3,54,075/-. Similarly, the AO also invoked the provisions of section 14A of the Act and disallowed an amount of Rs.2,74,818/-. Besides this, the AO has also disallowed an amount of Rs.1,28,413/- being 5% from travelling and entertainment expenses alleging that the same were not supported with vouchers. Lastly the AO made an ad-hoc disallowance of Rs.2,40,100/- being 20% of the total motor car expenses.

Aggrieved with the Order of AO, assessee filed appeal before the CIT(A) and contended that on the facts and circumstance of the case the additions made by the AO are not tenable. However, the Ld CIT(A) disposed-off the appeal of the assessee ex-parte on the ground that the assessee failed to comply with the notice sent to assessee. The details of such notices are mentioned in para 4 of the Order of the CIT(A).

Aggrieved with the Order of the CIT(A), assessee preferred appeal before us. At the outset, learned Counsel pointed out that the CIT(A) has in fact issued 6 notices to the assessee via email. However, none of the notices were received by the assessee. Learned Counsel for the assessee further argued that though the CIT(A) has mentioned about the issuance of notices yet the CIT(A) has failed to pinpoint as to whether any notice was served on assessee.

Learned DR relied on the Orders of the authorities below.

We have heard the rival submissions. After considering the facts of the case, we observe that out of 6 notices, 5 notices were pertaining to the covid-19 period and the 6th notice was issued in the month of December 2022. The CIT(A) though has mentioned that 6 notices were issued to assessee, yet the CIT(A) has failed to point out as to whether any of the notices were actually served upon the assessee. The CIT(A) has also overlooked the specific note of the assessee mentioned in Form-35 regarding the intimation of date of hearing of the appeal not by mail. Therefore, in view of the facts and in the interest of justice, we restore the matter back to the file of CIT(A) for deciding afresh. Needless to say that CIT(A) will provide reasonable opportunity to the assessee.

In result the appeal of the assessee is allowed for statistical purposes. Pronounced in the open court on the date mentioned on the caption page.