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Income Tax Appellate Tribunal, SURAT BENCH, SURAT
Before: SHRI PAWAN SINGH, JM &DR. A.L.SAINI, AM
िनधा�रती की ओर से /Assessee by : Shri Rohit Taja, C.A राज�व क� ओर से /Respondent by : Shri Vinod Kumar– Sr.DR सुनवाईकीतारीख/ Date of Hearing : 14/06/2023 घोषणाकीतारीख/Date of Pronouncement : 26/06/2023 आदेश / O R D E R PER DR. A. L. SAINI, ACCOUNTANT MEMBER: Captioned appeal filed by the assessee, pertaining to assessment year 2017-18, is directed against the order passed by the National Faceless Appeal Centre [‘NFAC/Ld.CIT(A)’ for short] dated 08.04.2022, which in turn arises out of an assessment order passed by the Assessing Officer (‘AO' for short) u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) vide order dated 27.12.2019.
2. At the outset, we note that appeal filed by assessee is barred by limitation by 234 days. The assessee has moved a petition for condonation of delay. The contents of the petition for condonation of delay are as follows: “I, the undersigned, Rameshbihai Savjibahi Devani, residing at 7312/4, G.I.D.C. Road No.7/73, Sachin, Surat-3942230, Gujarat on this of 9th February, 2023, solemn affirmation state as under: 1. In the case of my deceased father, CIT(A), Surat, passed order u/s 250 of the IT Act on 08.04.2022 for AY 2017-18. As such, the appeal against above order ought to have been filed within 60 days of receipt of above order. However, I could not file appeal before the above date and there is a delay in filing appeal owing to reasons beyond my control. It may please be noted that there is no mala fide intention on my part in not filing the appeal within stipulated time-limit. Thus, I hereby request you to kindly admit my appeal as valid appeal in view of following reasons.
In this regard, it is submitted that I am a common man and not well versed with the Income tax proceedings. I came to know about the above order being passed when my counsel informed me that appellate order is passed & uploaded on the poral. As I was not in receipt of physical copy of the order, I was not aware of the order passed in my case on above date. It was only when my counsel logged into my account to check the status of the case pending before CIT(A), it was found that order has been passed by NATIONAL FACELESS APPEAL CENTRE (NFAC). Therefore, he advised me to file appeal immediately with application for condonation of delay.
In view of above facts, your kind & respectful honour is requested to condone the delay in filing of appeal as the same is caused purely due to above bona fide reasons & I do not have any intention in disregarding the provisions of the statute. I am not aware of the new procedure adopted by the department of not sending physical copy of the orders.
4. In light of above, it is prayed that delay may kindly be condones & appeal may please be admitted in the interests of natural justice, equity & fair play. I shall always remain grateful for the act of kindness.”
3. In addition to this, learned Counsel for the assessee submitted that assessee had instructed his advocate to take care of his appeal, however, assessee’s advocate did not check the status of assessee’s appeal which was pending before NFAC/Ld. CIT(A) and as a result NFAC/Ld. CIT(A) has passed the ex parte order. The assessee’s advocate also did not check whether order has been passed by NFAC/Ld. CIT(A) against assessee and further appeal was to be preferred before ITAT. Therefore because of the mistake committed by advocate of the assessee that assessee should not be penalized.
On the other hand, Ld. Sr. DR for the Revenue opposed the prayer for condonation of delay and, stated that assessee has failed to explain the sufficient cause to condone the delay and mistake committed by the advocate of the assessee does not fall within sufficient cause, hence such huge delay should not be condoned.
We have heard both the parties on this preliminary issue. We note that assessee had handed over all the relevant documents along with appeal related matter to his advocate, and his advocate, suppose to check the status of pending appeal of assessee before NFAC/Ld. CIT(A). On the contrary, that advocate did not check the status of assessee’s appeal in ITBA portal and consequently the NFAC/Ld. CIT(A) passed the order and when the demand notice was served upon the assessee and the assessee came to know that his advocate did not take necessary action to file the appeal before the Tribunal. Therefore we note that because of the mistake committed on the part of the advocate of the assessee, the assessee should not be penalized. Reliance is also placed on the decision of I.T.A.T., 'C' Bench, Kolkata in the case of M/s. Garg Bros. Pvt. Ltd. & Others vs. DCIT [ITA Nos.2519 to 2521/Kol/2017, order dated 18.04.2018], wherein under similar set of facts and reasons, the Hon'ble Tribunal was pleased to condone the delay of 211 days by holding as under: "3. We have heard both the parties on this preliminary issue. Having regard to the reasons given in the application for condonation of delay, we are of the considered opinion that assessee was under a bona fide belief that the impugned order of Pr. CIT was not appealable before this Tribunal since they were not advised by their Tax Consultants about this legal right. Later on, when a Senior Lawyer advised them to file an appeal, the assessees immediately took steps to file the appeals. Therefore. the delay caused. we note. was because of the wrong advice of the Tax Professional for which assessees cannot be penalized. For the ends of justice, we condone the delay and admit the appeal for hearing. Therefore considering the facts of delay in filing the assessee’s appeal, we note that assessee has explained the sufficient reasons to condone delay.
Therefore, we condone the delay and admit appeal of the assessee for hearing.
The Ld. Counsel for the assessee submitted that order passed by NFAC/Ld. CIT(A) is an ex parte order. The assessee could not plead his case before NFAC/Ld. CIT(A). Therefore, Ld. Counsel prays before the Bench that one more opportunity should be given to assessee to plead his case before NFAC/Ld. CIT(A). We note that NFAC/Ld. CIT(A) had passed ex parte order, however, NFAC/Ld. CIT(A) considered the observation of the Assessing Officer but assessee’s complete submission were not taken into account. Therefore we note that order of NFAC/Ld. CIT(A) is not as per the mandate of the provisions Section 250(6) of the Act, and the order passed by the NFAC/ Ld. CIT(A) is not a speaking order. We note that it is settled law that principles of natural justice and fair play require that the affected party is granted sufficient opportunity of being heard to contest his case. Therefore, we deem it fit and proper to set aside the order of the ld. CIT(A) and remit the matter back to the file of the NFAC/ld. CIT(A) to adjudicate the issue afresh on merits. For statistical purposes, the appeal of the assessee is treated as allowed.
In the result, appeal of the assessee is allowed for statistical purposes in above terms. Order pronounced on 26/06/2023 by placing the result on the notice board. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER सूरत /Surat/िदनांक/ Date: 26/06/2023 Dkp Outsourcing Sr.P.S.