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Assessee represented by Shri Rajesh Upadhayay, A.R. Department represented by Shri Vinod Kumar, Sr. DR Date of institution of appeal 09/10/2023 Date of hearing 19/12/2023 Date of pronouncement 19/12/2023 Order under Section 254(1) of Income Tax Act PER: PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by the assessee is directed against the order of National Faceless Appeal Centre, Delhi (NFAC)/learned Commissioner of Income Tax (Appeals) [in short, the ld. CIT(A)] dated 06/03/2023 for the Assessment Year (AY) 2009-10. The assessee has raised following grounds of appeal: “1. Ld. CIT(A), NFAC, Delhi has erred in law and on fact to decide appellant’s appeal ex parte and that to without verifying the fact that whether the notice of hearing is served upon the appellant?
2. Ld. CIT(A), NFAC, Delhi has erred in law and on fact to uphold AO’s reopening U/s 147 and issue of notice U/s 148 of the Act.
Vrundavan Restaurant Vs ITO 3. Ld. CIT(A), NFAC, Delhi has erred in law and on fact to uphold AO’s addition of Rs. 2,46,150/- being undisclosed expenditure out of firm’s undisclosed income for the year under appeal.
4. Ld. CIT(A), NFAC, Delhi has erred in law and on fact to uphold AO’s addition U/s 68 of the Act for Rs. 15,60,500/- on account of unsecured loan received from Shree Jaykumar K Shah.
5. Ld. CIT(A), NFAC, Delhi has erred in law and on fact to uphold AO’s addition U/s 41(1) of the Act for Rs. 41,34,164/- on account of cession of liability w.r.t. sundry creditors.”
Rival submission of both the parties have been heard and record perused. The learned Authorised Representative (ld. AR) of the assessee submits that there is delay of 157 days in filing appeal before this Tribunal. The assessee has filed affidavit for explaining the delay. The ld. AR of the assessee further submits that the impugned order was passed by the ld. CIT(A) on 06/03/2023, however, the assessee has not received order as she has not seen her e-mail. The consultant of assessee while checking the portal of his other clients, came to know that order in case of assessee has also been passed on 06/03/2023. The consultant immediately downloaded the impugned order and immediately filed appeal before the Tribunal. Non-filing of appeal in time was neither intentional nor deliberate but for the reasons that the assessee was not aware about passing of the impugned order. The assessee has good case on merit and is likely to succeed if one more opportunity is given to the assessee.
On merit of the case, the ld. AR of the assessee submits that the Assessing Officer as well as ld. CIT(A) passed the ex parte order without giving fair and reasonable opportunity to the assessee. The ld. CIT(A) confirmed the finding of Assessing Officer in a non-speaking order. Order 2 Vrundavan Restaurant Vs ITO of ld. CIT(A) is not in consonance with the mandate of Section 250(6) of the Income Tax Act, 1961.
On the other hand, the learned Senior Departmental Representative (ld. Sr. DR) for the revenue on the issue of condonation of delay, submits that the assessee is casual and no plausible or reasonable explanation is given for condoning such a long delay. The assessee does not deserve any leniency so far as delay is concerned. On the merit of addition, the ld. Sr. DR for the revenue submits that the assessee was given ample opportunity by the lower authorities, it is the assessee who has not availed such opportunity, therefore, even on merit, the assessee is not eligible for any relief. To support his view, the ld. Sr. DR for the revenue relied on the decision of Hon’ble Apex Court Civil Appeal No.7696 of 2021 in the case of Majji Sannemma @ Sanyasirao Vs Reddy Sridevi & Ors.
We have considered the submissions of both the parties and perused the contents of affidavit regarding condonation of delay. The main contention of ld. AR of assessee is that the delay is neither intentional nor deliberate for the reasons that there they have not checked their e-mail and that as soon as they checked the e-mail, realised that the order has been passed by the ld. CIT(A) and that immediately filed appeal before the Tribunal. The partner of assessee Parul Jaykant Shah has filed her affidavit to substantiate such contention. Considering the fact that there is no inordinate delay and the assessee has fairly accepted that the order was communicated only when they open their e-mail. We further find that the 3