LAXMI BABU DEBNATH,PUNE vs. ITO, WARD 7(1), PUNE, PUNE
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Income Tax Appellate Tribunal, PUNE ‘SMC’ BENCH, PUNE
Before: HON’BLE SHRI S. S. VISWANETHRA RAVI & SHRI G. D. PADMAHSHALI
आदेश / ORDER PER S. S. VISWANETHRA RAVI, JM; This appeal is filed u/s 253(1)(a) of the Income Tax Act [‘the Act’] by the assessee challenging the order of National Faceless Appeal Centre, Delhi [‘NFAC’] DIN & Order ITBA/NFAC/S/250/2023-24/1057451809(1) dt. 27/10/2023 passed u/s 250 of the Act.
We deem fit to condone duly explained two days delay in instating the present appeal for sufficient reasons as dilated at para 4-5 of the sworn affidavit dt. 24/01/2024 filed on record, and we proceed to adjudicate this appeal.
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Laxmi Babu Debnath Vs ITO-7(1), Pune ITA No.1443/PUN/2023 AY 2010-11 3. At the outset of hearing, the Ld. AR Mr Khandelwal submitted that, the Ld. NFAC dismissed assessee’s appeal in limine owning to non-condonation of 86 days delay in instituting u/s 246A(1)(a) of the Act. Solidifying the fact of delay, it is submitted that, against an ex-parte order of assessment dt. 26/12/2016 framed u/s 144 of the Act, the appeal was filed in physical form before the Ld. CIT(A)-5, Pune on 24/04/2017. Admitting the delayed appeal, the Ld. CIT(A) proceeded to adjudicate the matter on merits in the light of remand report from Ld. AO. Subsequently, due to change in scheme, the proceedings got transferred to faceless regime. The Ld. NFAC without first taking into account physical proceedings of his predecessor Ld. CIT(A)5, Pune, has dismissed the appeal on the ground of limitation, therefore, the matte may be restored to the file of Ld. NFAC with a direction to deal on merits. Au contraries Ld. DR Ms Sonkavde submits that, ostensibly the appellant failed in his duty to upload records of physical proceedings and bring it to the notice of Ld. NFAC as soon she received first notice in faceless regime. In the event the Ld. NFAC was constrained to deal with the limitation first. And since the delay in pending appeal was neither supported by condonation petition nor by an affidavit duly sworn before Govt. Registered Notary, the Ld. NFAC has rightly on the grounds of limitation dismissed the appeal of the assessee in limine. It is further canvassed by the Ld DR that, remanding the file back to Ld. NFAC would lead to one more round of litigation to luxury litigant who not only failed to represent her case before Ld. NFAC, but also in assessment proceedings before Ld. AO.
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Laxmi Babu Debnath Vs ITO-7(1), Pune ITA No.1443/PUN/2023 AY 2010-11 4. Heard rival contentions, perused the material placed on record in light of rule 18 of ITAT-Rules 1963.
We note that, it is not in dispute that, the appellant in first place had belatedly appealed against the ex-parte assessment order on 24/04/2017 by Filing form No 35 in physical form before then jurisdictional Ld. CIT(A)-5, Pune. It is also not in dispute that the Ld. CIT(A) after considering the length of delay and reasoning explained in the affidavit filed before him, had proceeded to adjudicate the matter on merits in the light of remand report from the jurisdiction Ld. AO. However, due to change in the scheme, the pending appeal of the appellant assessee migrated to faceless scheme and the jurisdiction got transferred to Ld. NFAC in such faceless scheme. During the pendency of faceless proceeding, the Ld. NFAC had no benefit of earlier records of physical proceedings held by his predecessor in physical regime, hence disposed of the matter the ground of limitation ex-facie.
We find that, admittedly appellant had adduced evidences before then Ld. CIT(A) where case was partially heard in physical mode prior to its migration to faceless regime. The said submissions, however remained unattended by the Ld. NFAC for the reason that neither the Revenue had taken any step to upload the physical submission made before Ld. CIT(A)-5, Pune nor the appellant brought to its notice. In the event, the Ld. NFAC culminated the proceedings in limine without effectively determining the rights and liabilities of either party.
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Laxmi Babu Debnath Vs ITO-7(1), Pune ITA No.1443/PUN/2023 AY 2010-11
In our considered view, since the rights and liabilities in the extent appeal have not been effectively dealt with on evidences & merits, therefore in all the fairness, without commenting on condonation of delay & on merits thereof, we deem it fit to remand the case back to the file of the Ld. NFAC for de-novo adjudication on admission of appeal, condonation of delay, admission of additional evidence u/r 46A and on merits of the case and pass speaking order in the manner subscribed by sub-section (6) of section 250 of the Act, which mandates it to state points for its determination, decision thereon and reason for such decision while disposing of the appeal, ergo ordered accordingly. Needless to state here that, the appellant shall be given not more than three effective opportunities for hearing/placing on records all such evidences in support of claims made.
Resultantly, the appeal is ALLOWED FOR STATISTICAL PURPOSE. In terms of rule 34 of ITAT Rules, the order pronounced in the open court on this Thursday 25th day of January, 2024.
-S/d- -S/d- G. D. PADMAHSHALI S. S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER पुणे / PUNE ; ददनाांक / Dated : 25th day of January, 2024. आदेश की प्रनिनलनप अग्रेनषि / Copy of the Order forwarded to : 1. अपीलाथी / The Appellant. 2. प्रत्यथी / The Respondent. 3. The CIT(A)-NFAC, Delhi (India) 4. The Concerned CIT (MH-India) 5. DR, ITAT, Bench ‘SMC’, Pune 6. गार्डफ़ाइल / Guard File. आदेशानुसार / By Order, वररष्ठ दनजी सदिव / Sr. Private Secretary आयकर अपीलीय न्यायादधकरण, पुणे / ITAT, Pune.
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