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Assessee represented by Shri Samir Anavekar, AR Department represented by Shri Vinod Kumar, Sr. DR Date of Institution of Appeal 21/03/2023 Date of hearing 22/05/2023 Date of pronouncement 22/05/2023 Order under Section 254(1) of Income Tax Act PER: PAWAN SINGH, JUDICIAL MEMBER:
1. 1. This appeal by the assessee is directed against the order of learned National Faceless Appeal Centre, Delhi (NFAC)/Commissioner of Income Tax (Appeals) (in short, the ld. CIT(A)) dated 23/01/2023 which in turn arises from the penalty levied under Section 271(1)(c) of the Income Tax Act, 1961 (in short, the Act) vide order dated 22/06/2018 by the ITO, Ward-Daman, Daman for the Assessment Year (AY) 2010-11.
2. Initially, this appeal was filed before Panji Bench of Tribunal on 21/03/2023. However, it was sent to Surat Bench as the assessing officer in the present appeal is ITO, ward Daman, Daman, which comes Shri Sudin Mahadev Sangodkar Vs ITO under jurisdiction of Surat Bench. In this appeal, the assessee has raised following grounds of appeal: “1. On the facts and circumstances of the case and in law the NFAC erred in confirming the penalty u/s 271(1)(c) levied by A.O. without a specific charge ad when there was no service of notice on the appellant.
2. The ld. A.O. erred in levying a penalty in respect of credits in bank account which are not in the nature of income.
3. The ld. A.O. erred in not appreciating that the details could not be furnished in earlier proceedings in the absence of service of notice.
4. Appellant craves leave to add, alter, modify or delete and grounds listed as above or to adduce any evidences or records as neither the assessment orders nor the notices on penalty have been received by the appellant.”
3. Rival submissions of both the parties have been heard and record perused. The learned Authorised Representative (ld. AR) of the assessee submits that the ld. NFAC/CIT(A) dismissed the appeal of assessee on the ground of limitation by taking a view that there was a delay of 51 days in filing appeal before the ld. CIT(A). In fact, the order was passed by the Assessing Officer on 22/06/2018 and appeal was filed on 13/08/2018, thus, there was a delay of about 22 days only, if any. The ld. AR of the assessee submits that the assessee is a retired judicial officer of State of Goa. The assessee is a disabled person having 56% of disability as per the certificate dated 20/04/2013, copy of which is already placed on record. The assessee has obtained voluntary retirement with the permission of High Court of Bombay in the year 2005. After seeking voluntary retirement, the assessee started legal consultancy and Notarial Services in Daman, Diu and Goa. The assessee developed Avascular Shri Sudin Mahadev Sangodkar Vs ITO Necrosis of both the hip joints and from 2017, permanently shifted to Goa. The assessee at present is having permanent disability and totally immobility.
4. The ld AR for the assessee submits that from the date of receipt of order of penalty, the appeal within time limit from the receipt of penalty order, though there may be delay from the date of order of Assessing Officer. The ld. AR of the assessee submits that even otherwise as per the date mentioned on the penalty order dated 22.06.2018 and date of institution 13. 08. 2018 as mentioned on impugned order of ld. CIT(A), the delay is only 22 days. The assessee has good case on merit and is likely to succeed if one more opportunity is given to the assessee to explain the cause of delay before the ld. CIT(A). The assessment order as well as the penalty order was passed ex-parte. As per averment of para 4 of impugned order that the assessee was given show cause on various dates, except for 01/11/2022, there was a period of severe Covid-19 pandemic, so keeping in view the physical disability and the past status of the assessee, he deserve at least one more opportunity to explain such delay.
The ld. AR submits that before this Tribunal, the assessee has filed an application for condonation of delay in filing appeal before ld. CIT(A) and other evidence to show that the assessee was not served with the notice under section 274/ 271(1)(c) as well as notice under section 156, yet Shri Sudin Mahadev Sangodkar Vs ITO without going into deep, the matter may be restored to the file of ld. CIT(A) with liberty to assessee to file formal application for condonation of delay in filing appeal before the ld. CIT(A). The ld AR for the assessee submits that he under takes on behalf of the assessee to be more vigilant in attending and making timely compliance before lower authorities.
On the other hand, the learned Senior Departmental Representative (ld. Sr. DR) for the revenue submits that before dismissal of appeal on the ground of delay, the assessee was given sufficient opportunity to explain such delay. However, the assessee failed to take any step for filing petition for condonation of delay, therefore, the ld. CIT(A)/NFAC left with no option except to dismiss the appeal of assessee.
I have considered the submissions of both the parties and perused the material on record carefully. On careful perusal of orders of lower authorities, I find merit in the submission of ld. AR of the assessee that the delay is not 51 days in filing appeal rather the delay is only of 22 days in filing appeal from the date of order of Assessing Officer which is 22/06/2018, the assessee could file the appeal on or before 21/07/2018. Admittedly the appeal was filed on 13/08/2018, thus, there is only delay of 22 days in filing appeal before the ld. CIT(A). Before me, the ld. AR of the assessee vehemently submitted that the assessee is a retired juridical officer who is totally disabled and unable to move due to his permanent disability. Copy of disability certificate is available on record. Considering Shri Sudin Mahadev Sangodkar Vs ITO the facts and circumstances of the case, the appeal of the assessee was not adjudicated on merit the appeal was dismissed by taking view that there is delay of 51 days in filing appeal. On considering the contents of application of condonation of delay, I find that the delay in filing appeal seems to not intentional or deliberate, therefore, deem it appropriate to restore the appeal back to the file of ld. CIT(A)/NFAC with liberty to assessee to file such application for condonation of delay explaining the cause of delay, if any, before ld CIT(A), alongwith necessary evidence if so desire. On filing such application, the ld. CIT(A) will consider the application/petition for condonation of delay sympathetically and to pass speaking order in accordance with law. Thereafter, the ld. CIT(A) shall decide the appeal of assessee on merit The assessee is further given liberty to file all evidences and information/submission to substantiate the grounds of appeal
on merit. With this direction, the appeal of assessee is allowed for statistical purposes.
8. In the result, this appeal of assessee is allowed for statistical purposes. Order announced in open court on 22nd May, 2023 at the time of hearing in virtual court in the presence or parties.