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Income Tax Appellate Tribunal, COCHIN BENCH, COCHIN
Before: Shri Sanjay Arora & Shri Manomohan Das
O R D E R PerSanjay Arora, AM This is an Appeal by the Assessee directed against the dismissal of it’s appeal contesting it’s assessment u/s.143(3) of the Income Tax Act, 1961 (‘the Act’) dated 29.12.2018 for Assessment Year (AY) 2016-17 by the Commissioner of Income Tax (Appeals), NFAC, Delhi [CIT(A)] vide it’s order dated 10.11.2021.
At the outset, it was observed by the Bench that the instant appeal, filed on 20/12/2022, is with a delay of 355 days. The assessee’s, an authorized sales and service agent for Mercedez Benz cars in Kerala, case, per averments vide a sworn affidavit dated 16/12/2022 by Sri. S. Sivakumar (PAN: ADKPS8197D), Managing Director of the assessee-company, is that it’s office was closed due to Covid-19 pandemic for the earlier part of 2021, with its dealership cancelled and office closed in September, 2021. Further, no communication for hearing was received from the office of the ld.CIT(A), and before whom the proceedings were thus without 1
(AY 2016-17) Rajasree Motors Pvt. Ltd. vs. ITO participation by the assessee. The assessee was accordingly not aware of the appellate proceedings nor indeed of the appellate order dated 10.11.2021, which was, as it was later found, transmitted electronically on the assessee’s portal with ITBA. It was only on receipt, physically, the hearing notice for penalty proceedings u/s 271(1)(c) for the relevant year, that the assessee became aware of the passing of the appellate order on 14.12.2022. The assessee’s account at the Income Tax Portal was accordingly immediately accessed and the impugned order downloaded, filing an appeal with dispatch on 20.12.2022. This explains the delay in filing the delay by 11 ½ months.
We find the reasons of the intermittent closure of assessee’s office for the better half of 2021 and followed by complete closure of office in September, 2021, coupled with non-communication of the appellate proceedings by the office of the first appellate authority, as both reasonable and convincing. No cross examination of the deponent stands preferred by the Revenue, or otherwise any counter-affidavit furnished by it. Under the circumstances, we find the delay as justifiably explained and, accordingly, condoning the delay, admit the appeal.
On merits, as apparent from the mere browse of the impugned order – also referred to by us for the purpose of condonation of delay, makes it abundantly clear that there has been no communication to the assessee by the office of the ld.CIT(A). There is no reference in the impugned order to any notice of hearing issued, much less served, on the assessee. The ex parte order passed, though on merits, is thus without provision of due opportunity of hearing to the assessee and, thus, in violation of the principles of natural justice. Vacating the adjudication per the impugned order, we accordingly set aside the impugned order, restoring the assessee’s appeal back to the file of the ld.CIT(A) for adjudication afresh after hearing the parties before us per a speaking order and in accordance with law. We decide accordingly.
(AY 2016-17) Rajasree Motors Pvt. Ltd. vs. ITO 5. In the result, the assessee’s appeal is allowed. Order pronounced in the open court on November 23, 2023.