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Assessee represented by Shri Hemant Suthar, AR Department represented by Shri Vinod Kumar, Sr. DR Date of Institution of appeal 20/03/2023 Date of hearing 25/04/2023 Date of pronouncement 25/04/2023 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 learned National Faceless Appeal Centre (NFAC), Delhi/Commissioner of Income Tax (Appeals) (in short, the ld. CIT(A)) dated 20/06/2022 for the Assessment Year (AY) 2011-12. The assessee has raised following grounds of appeal: “1. The ld. CIT(A), NFAC has erred in law and in facts in dismissing the appeal ex parte without affording reasonable opportunity of being heard and for want of prosecution. The appeal of the appellant may kindly be restored to the file of ld. CIT(A), NFAC and may please be directed to afford reasonable opportunity of being heard.
2. The ld. CIT(A),NFAC even in deciding the appeal and dismissing it ex parte ought to have dealt with the merits of the issues involved and decided the appeal on merits by a speaking order observing the principles of natural justice. The order of the ld. CIT(A), NFAC may please be set aside.
Kashyap Kamleshbhai Parekh Vs ITO 3. Without prejudice to the above, the ld. CIT(A) has erred in confirming the additions made by the ld. A.O. amounting to Rs. 14,08,070/- for the amount received as undisclosed income without considering the facts and therefore the same is bad in law and the order passed is prayed to be quashed.
Your appellant craves liberty to add, alter, amend, substitute or withdraw any of the ground(s) of appeal hereinabove contended.”
Rival submissions 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 213 days in filing the appeal before the Tribunal. The assessee has filed application for condonation of delay. The application is supported by affidavit of assessee. The ld. AR of the assessee submits that the assessee engaged Dhiraj Agarwal, CA for filing and pursuing appeal before the ld. CIT(A). In Form-35 (appeal form for filing appeal) before the ld. CIT(A), Dhiraj Agrawal, CA has given his e- mail as well as telephone number. The notices if any was served on his e-mail address. The assessee enquired about the outcome of his appeal, however, on making further enquiry on ITBA Portal, Dhiraj Agarwal, CA informed the assessee that notice of recovery of various years is uploaded against the PAN number of assessee. The assessee was also told that his appeal is already dismissed on 20/06/2022. The ld. AR further submits that Shri Dhiraj Agarwal, CA neither informed about the various compliances/non-compliances nor informed the assessee about dismissal of his appeal. He told the assessee only when the assessee enquired from him in the month of February, 2023. On coming to know about dismissal of appeal, the assessee immediately filed appeal before the Tribunal. The Kashyap Kamleshbhai Parekh Vs ITO ld. AR of the assessee submits that the ld. CIT(A) rejected/dismissed the appeal for non-prosecution as well as non-compliance without discussing the merit of the case. The ld. CIT(A) has not discussed the merits of the case. Though statement of facts were uploaded alongwith Form-35. The ld. AR of the assessee submits that the delay in filing appeal before the Tribunal is neither intentional nor deliberate but due to the negligence of Dhiraj Agarwal, CA. The assessee will suffer irreparable loss if the assessee is not heard on merit. The ld AR for the assessee prayed for condoning the delay in filing appeal and to restore the grounds of appeal
to the file of ld CIT(A) on merit.
3. On the other hand, the learned Senior Departmental Representative (ld. Sr. DR) for the revenue submits that the assessee’s act is casual in attending the hearing before the ld. CIT(A) nor filed appeal before the ld. CIT(A) on time even the assessment order was passed under Section 144 of the Income Tax Act, 1961 (in short, the Act). Thus, the assessee is habitual defaulter in not making proper and timely compliance. The ld. Sr.DR submits that the assessee has not explained the delay properly. To support his submission, the ld. Sr. DR has relied upon the decision of Hon'ble Apex Court Civil Appeal No.7696 of 2021 in the case of Majji Sannemma @ Sanyasirao Vs Reddy Sridevi & Ors.
4. I have considered the submissions of both the parties and perused material on record. I find that the assessment was completed under Kashyap Kamleshbhai Parekh Vs ITO Section 144 of the Act by making various additions aggregating of Rs. 14,08,070/-, which consist of addition under Section 69A of Rs. 10.87 lacks as cash credit in bank account, unexplained salary income of Rs. 2,35 lacs and Rs. 84,875/- other credit in bank. The assessee filed appeal before the ld. CIT(A). The appeal was dismissed by the ld. CIT(A) for want of prosecution. The ld. CIT(A) while dismissing the appeal, held that the assessee was given various notices through e-mail as furnished by assessee on Form No.
35. No written submission was furnished by assessee in response to such notices. The ld. CIT(A) dismissed the appeal in limine. The ld. CIT(A) has not passed the order on merit. Before me, the ld. AR of the assessee vehemently submitted that non-compliance before the ld. CIT(A) was due to the negligence of Shri Dhiraj Agrawal, CA. The assessee has no deliberate or malafide intention in filing appeal belatedly. I find that the delay in filing appeal is not intentional or deliberate but for the negligence of person who was engaged by the assessee for filing and pursuing appeal before ld. CIT(A). I am of the view that if technical consideration is pitted against cause of substantial justice, the cause of justice must be preferred. Therefore, the delay of 213 days in filing appeal is condoned. So far as reliance on the case law by ld Sr DR is concerned in Majji Sannemma @ Sanyasirao Vs Reddy Sridevi & Ors (supra) is concerned, with utmost regard to the said decision, I find that facts of the present appeal is at variance. With utmost regard the Kashyap Kamleshbhai Parekh Vs ITO ratio of the said decision, I find that in that case, the High Court has not observed that there was any sufficient cause explaining the huge delay of 1011 days was made out. However, in the present appeal there is delay of about 250 days and the assessee has shown sufficient cause, which is reasonable one.
Now adverting to the merit of the case, I find that the ld. CIT(A) has not decided various grounds of appeal
on merit, therefore, therefore, the order of ld. CIT(A) is set aside and all the grounds of appeal raised by the assessee are restored back to the file of ld. CIT(A)/NFAC to decide all the grounds of appeal afresh and in accordance with law. Needless to direct that before passing the order, the ld. CIT(A) shall grant reasonable opportunity of hearing to the assessee. The assessee is also directed to be more vigilant in future and not to cause further delay and seek adjournment without any valid reason and to furnish all the details and his submissions on various grounds of appeal raised by him, as soon as possible, if so desired without any further delay.