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Income Tax Appellate Tribunal, NAGPUR BENCH, NAGPUR
Before: SHRI V. DURGA RAO & SHRI K.M. ROY, ACCOUNTANT, MEMBER
Date of Hearing – 21/10/2024 Date of Order – 30/10/2024
O R D E R PER K.M. ROY, A.M.
The present appeal has been filed by the assessee challenging the impugned order dated 17/03/2023, passed by the learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi, [“learned CIT(A)”], for the assessment year 2016–17.
In its appeal, the assessee has raised following grounds:–
“1. That on the facts and circumstances of the case, Ld. CIT(A) erred in dismissing the appeal of the assessee ex-parte as Assessee did not comply to Notices issued on e-mail. Learned CIT(A) ought to have considered that the Assessee specifically requested not to send Notices on email, while filing Form 35.
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2. That on the facts and circumstances of the case, Ld. CIT (A) ought to have issued Notices to the Assessee through physical mode on the address given by the Assessee in Form 35.
3. That on facts and circumstances of the case, Ld. CIT (A) erred in dismissing the appeal of the Assessee ex-parte, thereby confirming the addition of Rs.36,83,407/- u/s 68 of the Income Tax Act.”
During the course of hearing, the Registry has pointed out that there is a delay of 270 days in filing the present appeal before the Tribunal. The assessee has filed an application explaining the cause of such delay which is supported by an Affidavit, the content of which are reproduced below:–
“Affidavit Yogita Chandrakant Ghuse, the Deponent herein, aged 52 years, resident of, Behind Mata Mandir, Ward, Hinganghat (442301), do hereby declare that:
1. 1. The Deponent is an individual, residing at Hinganghat Village near Nagpur.
2. The Deponent has a Gas Agency business in my name. However, the overall business is managed by my husband.
3. The Deponent regularly files Return of Income and Tax Audit Reports in Form 3CB and 3CD. For AY 2016-17, the return of income was filed on 31/03/2017, declaring a total income of Rs.6,57,300/- 4. The Deponent's case was selected for scrutiny assessment under Income Tax Act, 1961 ('the Act') and assessment order was passed on 18/12/2018.
5. Appeal was preferred before Hon'ble Commissioner of Income Tax (Appeals) on 28/01/2019 against the assessment order and Exparte appellate order under section 250 of the Act was passed on 17/03/2023.
6. Aggrieved with the appellate order, present appeal has been preferred before Hon'ble appeal Tribunal, Nagpur. There is delay of 270 days in preferring the present appeal due to the following reasons: i. The Deponent is unconversant with procedure of online proceedings and is non- compliant on emails. While filing the appeal in Form 35, in the tab "Whether notices/communication may be sent on email", specifically No was selected, so as to get physical delivery of notices.
3 Yogita Chandrakant Ghuse ITA no.77/Nag./2024 However, all notices of appeal proceedings were sent online and no physical delivery of notices were received. ii. When the Deponent received physical copy of show cause notice for Penalty Proceedings under section 271(1)(c) of the Act on 02/02/2024, I came to know that appellate order had being passed against myself on 17/03/2023 itself.
It is submitted that there is genuine cause for the delay in filing the present appeal, as the Deponent was neither aware of the notices issued by Commissioner of Income Tax (Appeal) under section 250 of the Act, nor the appellate order passed on 17/03/2023 against myself.
After considering the submissions of the learned Authorised Representative and averments made in the affidavit, we are of the opinion that the assessee is prevented in filing the appeal belatedly and we are satisfied that the delay in filing the appeal is due to reasonable cause. Consequently, we condone the delay of 270 days in filing the present appeal and admit the same for adjudication on merit.
The learned Authorised Representative appearing for the assessee pointed out that the learned CIT(A) / NFAC had summarily dismissed assessee’s appeal without any discussion on merit. He thus prayed that one opportunity may be granted to the assessee by restoring the matter to the file of the learned CIT(A) to enable the assessee to substantiate its case.
On the other hand, the learned Departmental Representative submitted that despite the learned CIT(A) granted sufficient opportunities to the assessee, the assessee failed to appear before the learned CIT(A) and not filed relevant details. He strongly supported the orders passed by the learned CIT(A).
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7. Having heard both the parties, we find that the though the learned CIT(A) gave opportunities to the assessee, ultimately, the order passed by him is an ex-parte order. Therefore, we are of the opinion that by following the principles of natural justice, one more opportunity should be given to the assesse to substantiate his case before the learned CIT(A). In support of our findings, we also rely on the decision of the Co–ordinate Bench of the Tribunal, Mumbai Bench, rendered in Mrs. Shruti Mayank Shah v/s DCIT, ITA no.4370/Mum./2024, order dated 17/10/2024, wherein, under similar circumstances, the Tribunal has restored the matter to the file of the learned CIT(A) for denovo adjudication on merit. The relevant findings of the Tribunal are as follows:–
“We have heard both the parties, perused the materials available on record and gone through orders of the authorities below. We find that though the learned CIT(A) gave opportunities to the assessee, ultimately, the order passed by him is an ex-parte order. Therefore, we are of the opinion that by following the principles of natural justice, one more opportunity should be given to the assesse to substantiate his case before the learned CIT(A). In view of the above, the order passed by the learned CIT(A) is set aside and remit the matter to the file of the learned CIT(A) and direct him to adjudicate the matter afresh after providing reasonable opportunity of being heard to the assessee. It is also directed that the assessee should not seek adjournment without there being a justified reason. Accordingly, all the grounds raised by the assessee in this appeal are allowed for statistical purposes.”
Respectfully following the aforesaid finding of the Tribunal, the order passed by the learned CIT(A) is hereby set aside and remit the matter to the file of the learned CIT(A) and direct him to adjudicate the matter afresh after providing reasonable opportunity of being heard to the assessee. It is also directed that the assessee should not seek adjournment without there being a 5 Yogita Chandrakant Ghuse ITA no.77/Nag./2024 justified reason. Accordingly, all the grounds raised by the assessee in this appeal are allowed for statistical purposes.
In the result, appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open Court on 30/10/2024