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Order under section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by assessee is directed against the order of National Faceless Appeal Centre, Delhi [for short to as “NFAC/Ld.CIT(A)”] dated 27.11.2021 for assessment year 2017-18, which in turn arises out assessment order passed by Income-tax Officer-ward-1(2)/ Assessing Officer under section 144 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) dated 19.12.2019. The assessee has raised the following grounds of appeal:- “1. The appellant was hold the status of agriculturist, during the year under consideration i.e. AY 2017-18. The entire money received was the income from agriculture activities which are wholly exempt (A.Y 17-18) Mahamadali Adam Patel from taxation purview. Hence the appellant is not liable to pay any tax on this income addition made by the authority and hence this appeal.
2. The learned Assessing Officer has erred in appreciating the factual matrix of the case and therefore the addition deserves to be deleted.
The learned Assessing Officer has erred in taking a view that, bank statement is falling under the definition of books of account and made addition.
The learned Assessing Officer has erred in considering total deposit as an income of the appellant and made addition.
5. The appellant craves for leave to add or amend any of the grounds of appeal.”
2. On perusal of record shows that impugned order passed by NFAC/Ld. CIT(A) on 27.11.2021, however, present appeal was filed on 03.02.2023. Thus, there is delay in filing of assessees appeal and Registry has calculated the delay of 373 days. In support of contention of delay, the assessee has filed a detailed application supported with an affidavit. In the application, the assessee has stated that NFAC/ Ld. CIT(A) upheld an addition of Rs.23.00 lakh and Rs.55,200/- in its order dated 27.11.2021. The assessee was required to file his appeal within 60 days i.e., on or before 21.01.2022. However, the appeal of assessee filed on 03.02.2023. It is further stated that entire period of delay is covered by the decision of Hon'ble Apex Court Hon'ble Apex Court in Suo (A.Y 17-18) Mahamadali Adam Patel Motu Writ Petition (C) No.3 of 2020, wherein the time limit for filing various appeals under general law as well as under special law were extended till 28.02.2022 and further 90 days’ grace period was allowed with effect from 01.03.2022. Thus, the 90 days also expired /ended on 29.05.2022. Therefore, the period of limitation would start from 29.05.2022. From counting the delay, with effect from 29.05.2022, the delay is of 250 days.
3. The Ld. Authorized Representative (Ld.AR) for the assessee submits that assessee is an individual and not well verse with the e-proceedings and faceless proceedings. The LD. AR for the assessee submits that assessee has assigned his tax case to a tax consultant, who has given his mobile number and e-mail ID for service of notices. Thus, the fact of dismissal of appeal not came to the knowledge of assessee directly, nor it was communicated to him by his tax consultant. The assessee used to enquire from his tax consultant about progress of his appeal but no adverse information was given to him by his tax consultant. Subsequently, assessee came to know about the dismissal of appeal for the first time on 09.01.2023 when demand (A.Y 17-18) Mahamadali Adam Patel notice was served upon the assessee. On perusal of on-line service of order, through present Counsel, regarding online service of order that “online service of order-Regarding”. On perusal, it was noted that appeal of assessee for assessment year 2017-18 was dismissed. The assessee immediately filed appeal before Tribunal on 03.02.2023. The Ld. AR for the assessee submits that there is no mala fide intention or deliberate delay in filing appeal before Tribunal. The delay caused due to genuineness and bona fide reason. The Ld. AR for the assessee prayed for condoning the delay in filing assessees appeal. To support his submission, Ld.AR for the assessee relied upon the following decisions: Rafiq C Munshilal (AIR 1981 SC 1400) N.Balakrishnan Vs M. Krishnamurthy (1998) (7 SCC 123) B. Madhuri Goud vs. B Damodar Reddy (2012) 12 SCC 693 Emsons Organics Ltd. vs. Dy.CIT (2020) 113 taxmann.com 269 (ITAT-Chandigarh) 4. On the other hand, Ld. Senior Departmental-Representative (Ld. Sr-DR) for the Revenue strongly opposed the delay of condonation. The Ld. Sr-DR for the Revenue submits that assessee is a habitual defaulter that assessee neither appeared before the Assessing Officer despite service of number of notices, nor before ld CIT(A). The assessment was (A.Y 17-18) Mahamadali Adam Patel completed under section 144 of the Act on 19.12.2019. Again before NFAC/Ld. CIT(A) the assessee has not filed any submission. Thus, NFAC/Ld. CIT(A) dismissed the appeal of assessee on the basis of material available on record. Again, the appeal of assessee is not filed within the statutory period of time for filing appeal before Hon'ble Tribunal. Initially, assessee filed an application for condonation of delay at the time of filing his appeal, wherein, the assessee specifically stated that order was received by assessee on the same day by electronic means i.e. on 27.11.2021. However, now assessee has filed an application by taking plea that order of NFAC/Ld CIT(A) was not received. The assessee has not explained the cause of delay properly and assessee acted upon in negligence and lack of bona fide which cannot be a ground of condoning the delay of assessees appeal. To support his submission, Ld . Sr-DR for the Revenue relied on the decision of Hon’ble Apex Court in Civil Appeal No.7696 of 2021 in the case of Majji Sannemma @ Sanyasirao Vs Reddy Sridevi & Ors.
In rejoinder submissions, the ld AR for the assessee submits that in fact the order of NFAC was not received by assessee (A.Y 17-18) Mahamadali Adam Patel and the contention that it was communicated electronically on the same day, was mentioned on presumption basis. The assessee has already filed his affidavit.
I have considered the rival submissions of both the parties and condoning the delay in assessees appeal. I have also deliberated on various case law relied upon by both the parties. The sum and substance, the plea of Ld. AR for the assessee is that there was no careless or negligence on the part of assessee and that in fact the order of NFAC/Ld. CIT(A) was not received by assessee as the e-mail and mobile No. in the e-filing portal was of his tax consultant, who has not communicated to assessee despite regular follow-up procedure complied by assessee. It is further contention of Ld. AR for the assessee that on coming to know the fatal position of his case, he immediately took his step in filing appeal before Tribunal. The Ld. AR for the assessee submits that assessee also filed such petition duly supported by an affidavit. On the contrary Ld. Sr-DR for the Revenue objected the condonation of delay on the ground that in the first application, the assessee has disclosed that order dated 27.11.2021 was communicated through (A.Y 17-18) Mahamadali Adam Patel electronic. Considering the submission of both the parties and facts and circumstances of the case, that assessee has engaged a tax consultant to pursue his matter before the authority concerned and that assessee was not informed about such result immediately if it was communicated to the assessee by his tax consultant and such plea of assessee is supported by filing an affidavit. I also find that valuable right of assessee are involved in the present appeal. Further, in my view that when technical consideration pitted against cause of substantial justice the cause of substantial justice may preferred. Therefore, considering the overall facts and circumstances of the present fact of the case, I find that there is no intentional or deliberate delay in filing present appeal before Tribunal. Hence, the delay in filing of appeal is condoned. So far as reliance by ld DR for the revenue in case of Majji Sannemma @ Sanyasirao Vs Reddy Sridevi & Other (supra), is concern, I find that fact of that case is slightly at variance. With utmost regard the 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.