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Income Tax Appellate Tribunal, KOLKATA ‘B’ BENCH, KOLKATA
Before: SRI SANJAY GARG & SRI SANJAY AWASTHI
order
: July 24th, 2024 ORDER
Per Sanjay Awasthi, Accountant Member:
In this case, there is a delay of 179 days for which the ld. Counsel for the assessee has filed a request for condoning the said delay. The same is reproduced as under: “With due respect we would like to inform your Goodself that an order u/s 250 of the Act was passed on 24/05/2023 and the same was communicated in the email id -emanzar25@gmail.com, which belongs to an employee of the tax consultant. The appeal was supposed to be filed on or before 23.06.2023 i.e. within 60 days from the date of receipt of order. However, the appeal couldn’t be filed within the due date and hence, there is delay in filing the appeal.
I.T.A. No.: 97/KOL/2024 Assessment Year: 2018-19 Chetak Dealmark Pvt. Ltd. We were completely unaware of the order passed. No communication was made in the email id provided in Form 35 i.e., kamalagarwal2013@gmail.com related to the notices issued for hearing dated 03.03.2023, 08.03.2023 & 19.04.2023 as well as order passed u/s 250 of the Act. It is undenied fact that generally no one checks the income tax portal every now and then rather relies upon the communication received in email. In our case the tax consultant informed that no email was received in his email id after 10.02.2023. Recently, we checked the portal and came to know that after the notice dated 10.02.2023, 3 more notices were issued and order u/s 250 of the Act has been also passed but all these impugned notices and the order were communicated in emanzar25@gmail.com which was never checked or if checked, the same was not forwarded to the appellant. Hence, due to miscommunication from the end of the Ld. CIT(A) and no communication from the employee of the tax consultant, we came to know about passing of order too late and thereby there is delay in filing this appeal by 210 days. The delay in filing this appeal is completely unintentional. Therefore, we request before your Goodself to condone the delay and accept the appeal in the interest of principle of natural justice. For your this act of kindness we shall be ever obliged.” 1.1. Considering the reasons advanced for condoning the said delay and in the interest of substantive justice, the delay is hereby condoned and the appeal is admitted for hearing.
2. This case has a slightly unusual history regarding persuasion of the same before the Assessing Officer (hereinafter referred to as ld. 'AO') and the Commissioner of Income Tax (Appeals)-NFAC, Delhi [hereinafter referred to as ld. 'CIT(A)']. In fact, it is evident from a perusal of the orders of the authorities below that due to a variety of reasons either the notices issued by the ld. AO and ld. CIT(A) have not been served on the assessee or the assessee has failed to respond in a proper and timely manner to the notices that he could eventually receive. In light of this fact, the assessee has come before us ventilating the grievances through the following grounds of appeal:
“1. That, on the facts and in the circumstances of the case, the Ld. C.I.T.(A), NFAC [hereinafter referred to as CIT(A)] erred in confirming the addition of Rs. 81,98,880/- u/s 56(2)(x) of the Income Tax Act, 1961 by the Ld. Page 2 of 5 I.T.A. No.: 97/KOL/2024 Assessment Year: 2018-19 Chetak Dealmark Pvt. Ltd. Assessing Officer [hereinafter referred to as AO] without according proper opportunity of hearing.
That under the facts and in the circumstances of the case, Ld. CIT(A) was wrong in sending notices to the email id other than the email id provided in Form 35 and hence, proper opportunity of hearing was not provided.
That under the facts and in the circumstances of the case, Ld. CIT(A) issued 4 notices after Enablement of Communication Window and only 1 notice issued on 10.03.2023 was sent in the email stated in the Form 35 thereby restricting the appellant from proper opportunity of hearing.
That under the facts and in the circumstances of the case, Ld. CIT(A) failed to acknowledge the fact that the email id provided in the profile of income tax portal is different from the email in which notices were sent by the Ld. AO during the assessment proceedings and hence, proper opportunity of hearing was not provided at the time of assessment proceedings.
That under the facts and in the circumstances of the case, Ld. CIT(A) failed to acknowledge the fact that the Ld. AO failed serve notice u/s 143(2) and notices issued thereafter either in the email id registered in the e-filing account or through the appellant’s registered account hence the assessment proceedings is bad in law and liable to be set-aside.
6. That the appellant craves leave to add, alter, amend or withdraw any ground or grounds of appeal
before or at the time hearing.”
3. The ld. Counsel for the assessee took us through the orders of the authorities below and vehemently argued that the appellant was denied sufficient opportunity before the authorities below to present his case. 3.1. Ld. D/R in turn argued that an appellant who is not vigilant regarding persuading his matter before the authorities below should not be allowed any leverage in terms of relief at the stage of the ITAT since he had been given ample opportunity to present his case earlier.
4. We have carefully considered the rival submissions and gone through the documents filed before us. It is clear that the detailed questionnaires issued by the ld. AO were not responded to by the appellant ostensibly on the ground that the e-mails were sent on some address which was not of the appellant. In fact, it has been averred that even the notice u/s 143(2) of the Income Tax Act, 1961 (in short the 'Act') was not received by the appellant. We find that even before the ld. CIT(A), there is a detailed rendition of the fact I.T.A. No.: 97/KOL/2024 Assessment Year: 2018-19 Chetak Dealmark Pvt. Ltd. that there has been no response by the appellant to as many as five notices sent from time to time as under:
Sr. No. HEARING NOTICE REMARKS 1. Notice dated 10.08.2022. No compliance 2. Notice dated 10.02.2023. No compliance 3. Notice dated 03.03.2023. No compliance 4. Notice dated 08.03.2023. No compliance 5. Final opportunity of being heard through No compliance notice dated 19.04.2023. fixed for 25.04.2023 5. Considering the totality of the facts and circumstances of the case, we would not like to comment on the manner in which, prima facie, there appears to be some laxity on the part of the appellant in persuading his case before the authorities below, but we certainly feel that the appellant deserves a chance to establish the facts before the ld. AO so that there is an adequate appreciation of the fact and law in the present case. Accordingly, we set aside this matter to the file of ld. AO to decide the matter afresh.
In the result, the appeal filed by the assessee is allowed for statistical purposes.
Order pronounced in the open Court on 24th July, 2024.