MR.MOHD WASIM,BHOPAL vs. THE ITO -3 (2), BHOPAL

Feeling aggrieved by appeal-order dated 01.09.2021 passed by learned Commissioner of Income-Tax (Appeal), National Faceless Appeal Centre, Delhi [“Ld. CIT(A)”], which in turn arises out of assessment-order dated 26.03.2015 passed by learned ITO, 3(2), Bhopal, [“Ld. AO”] u/s 144 r.w.s. 147 of the Income-tax Act, 1961 [“the Act”] for Assessment-Year [“AY”] 2008- 09, the assessee has filed this appeal.

Heard the learned Representatives of both sides and case-records perused. Page 1 of 9

The registry has informed that the present appeal could have been filed upto 31.10.2021 but the same was filed after delay of 450 days beyond last date and therefore time-barred. Ld. AR submitted that the assessee has filed a condonation application with affidavit seeking condonation of delay. So far reason of belated filing is concerned, Ld. AR invited our attention to the averments made by assessee in affidavit re-produced below:

Referring to above affidavit, Ld. AR submitted that out of total delay of 450 days, the delay of 211 days from 01.11.2021 to 30.05.2022 was during Covid-19 Pandemic period and therefore covered by extension granted by Hon’ble Supreme Court in Suo Motu Writ Petition (C) No. 3 of 2020 read with Misc. Applications. Hence there is no delay in fact to the extent of 211 days upto 30.05.2022. Thereafter, further delay of continuing 239 days was due to the fact that the notices of first-appeal were sent by department in assessee’s erstwhile accountant’s email id (khanshakeel963@gmail.com) which was mentioned in the assessee’s a/c on Income-tax Portal. However, the accountant failed to intimate the assessee about hearing dates of first- appeal. Further, the accountant was seriously ill during Covid period and also left the service from assessee. Therefore, the assessee did not have any knowledge of the first-appeal proceeding. It is only when the assessee logged into the Income-tax Portal in December, 2022 that he came across the order of CIT(A) which stood already passed on 01.09.2021. Immediately thereafter, the assessee approached new counsel and arranged to file appeal. Ld. AR very humbly submitted that there is no deliberate lethargy, negligence or mala fide intention of assessee in making delay and the assessee does not stand to derive any benefit because of delay. Ld. AR urged to condone the delay. Ld. DR did not raise any objection and left the matter to the wisdom of Bench. We have considered the explanation of assessee and in absence of any contrary fact or material on record, the assessee is found to have a Mohd. Wasim, Bhopal v. ITO, 3(2), Bhopal reasonable cause for delay in filing the present appeal. Placing reliance on the decision of Hon’ble Supreme Court in Collector, Land Acquisition Vs Mst. Katiji and others 1987 AIR 1353, 1987 2 SCC 387, we take a judicious view; condone delay and proceed with appeal.

On perusal of impugned order of first-appeal passed by CIT(A), it emerged that the CIT(A) has also noted that the hearings of first appeal were fixed on 29.12.2020, 23.06.2021, 22.07.2021 and 02.08.2021 but there was no representation from assessee’s side; therefore the CIT(A) passed ex-parte order. It is further found that even while passing ex-parte order, the CIT(A) also noted that there was a delay of 1060 days in filing first-appeal itself.

Thereupon, Learned Representatives of both sides read over and understood the contents of affidavit and after a brief discussion, it was felt that the reason given by assessee in affidavit is convincing. Therefore, we are inclined to condone the delay in filing first-appeal.

Finally, it transpired that the CIT(A) has dismissed assessee’s appeal in limine due to non-prosecution by assessee on hearing dates. This is not in accordance with the mandate of Section 250(6) of the Income-tax Act, 1961 which provides “The order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision.”. Normally, in such a case, we remit the matter back to CIT(A) for a fresh adjudication. But the Ld. DR for Revenue submitted that the assessment-order passed by AO is also ex- parte u/s 144; therefore it would be more appropriate to send this case back to the file of AO who will make an apt assessment of assessee after considering all evidences and submission of assessee. Ld. DR also prayed to direct the assessee to represent his case before AO and do not seek unnecessary adjournments. In view of this and also having regard to the principle of natural justice and fair play, we deem it fit to give one more opportunity to assessee so that the assessee can represent his case before AO for a proper assessment. Accordingly, we remand this matter back to the file of AO for assessment afresh after giving opportunity of hearing to assessee. The Mohd. Wasim, Bhopal v. ITO, 3(2), Bhopal AO and do not seek unnecessary adjournments.

Resultantly, this appeal is allowed for statistical purpose.