PRADEEP KUMAR AGARWAL. ,KOLKATA vs. ITO, WARD-4(3), KOLKATA. , KOLKATA

The Registry has pointed out that the appeal of the assessee is time barred by 55 days. In order to explain the delay, assessee has filed an affidavit wherein it has been contended that actual delay is of only 25 days. The ld. CIT(A) has decided the appeal ex-parte for want of prosecution. Therefore, this order is in contravention to the mandate given under sub-Section 6 of Section 250 of the Income Tax Act, 1961 (in short the 'Act'). The assessee has been calculating the delay from the knowledge of this order whereas Registry has been calculating the delay from the date of passing of the order till the filing of the appeal before the Tribunal. The assessee has contended that service of I.T.A. No.: 1329/KOL/2023 Assessment Year: 2011-12 Pradeep Kumar Agarwal. notice was not effected upon the assessee, therefore, he could not appear before ld. CIT(A). On account of his non-appearance, the appeal has been dismissed for want of prosecution and assessee could not lay his hand on the impugned order.

On the other hand, ld. D/R submitted that assessee did not participate in the assessment proceeding and therefore, his conduct does not deserve any sympathy.

We have duly considered the rival contentions and gone through the record carefully. After commencement of faceless disposal of appeals, notices were being communicated to the assessee on e-mail and on certain time some of the assessee failed to keep a track on the e-mail. A perusal of the impugned order would reveal that first notice was given on 26.04.2019. Thereafter, after a gap of one and a half year, next notice was issued on 04.02.2021. Then again there is a gap of more than two years and notice was issued on 25.07.2021. There might be some communication gap on this electronic platform. Therefore, we deem it appropriate to condone the delay and decide the appeal on merit. There is one more reason for condoning the delay is that no assessee will gain by making the appeal time barred. Therefore it is to construed that making the appeal time barred has not been adopted as a strategy by the assessee to litigate with the Department. Thus, there was no mala fide intention at the end of the assessee in making his appeal time barred. Accordingly, we condone the delay and proceed to decide the appeal on merit.

On merit, in the first ground of appeal

, assessee has pleaded that re- opening notice u/s 148 of the Act was issued by ITO, Ward-4(2), Jaipur and this notice is without jurisdiction. The assessment has been framed on the strength of re-opening and assessment order is not sustainable.