EXECUTIVE ENGINEER FLORICULTURE,SRINAGAR vs. DEPUTY COMMISSIONER OF INCOME TAX CPC ( TDS), SRINAGAR

Per Bench:

These bunch of appeals have been filed by the assessee against the

order even dated 25.08.2021 passed by the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi, challenging

2 ITA Nos. 133 to 137/Asr/2021 Executive Engineer Floriculture v. DCIT there in ex-parte order passed by the CIT(A) qua the assessee without

giving an opportunity of being heard in view of the principles of natural

justice.

received on 25.08.2021 and appeal was filed on 09.11.2021 and thus,

these appeals are filed late by 16 days. It was further submitted in the

application dated 29.11.2021 that the Hon’ble Apex Court suo moto

extended the limitation period from 15.03.2020 to 02.11.2021. Therefore, in

view of the judgment of the Hon’ble Apex Court in Miscellaneous

Application No. 665 of 2021 in SMWC No. 3 of 2020 in cognizance for

extension of limitation in view of prevalent of Covid-19 virus in the case of

the assessee the period from 25.08.2021 to 02.10.2021 shall be excluded

while computing the period of limitation of 16 days. It is noted that there

was a delay of 4 years in filing the appeal before the ld. CIT(A) where the

CIT(A) has rejected the condonation of delay for want of documentary proof

in support of the reasons for such a long delay claimed by the appellant.

The CIT appeal, however, being not satisfied with the bona fide of the

reasons, he dismissed the appeal on account of delay however, he has

examined the issue in appeal on merits, without representation of the

3 ITA Nos. 133 to 137/Asr/2021 Executive Engineer Floriculture v. DCIT assessee as being not received on the Income Tax Portal as for the

technical reasons as claimed by the assessee.

interpreted in a manner which deserves and advances the cause of

substantial justice. The Hon’ble Apex Court in the case of State of West

Bengal Vs The Administrator, Howrah Municipality reported in AIR 1972

page 749 (SC) had held that the scope of expression "Sufficient Cause” for

the Condonation of delay should receive a Liberal Construction. The issue

of Condonation of delay was dealt by the Income Tax Appellate Tribunal

(ITAT), Ahmedabad bench in the case of M/S Tejas Karshanbhai vs ITO as

on 29.04.2022 vide Appeal no CIT(A)-5/ITO Wd.5(1)(1)/10682/2018-19,

wherein the Tribunal has held that the Commissioner (Appeals) shall

condone the delay and dispose the appeal on merits if the assessee

has not acted in a mala fide manner in order to avoid unnecessary

burden to the assessee. Also the ITAT Bench of Bangalore has held in the

case of M/S SAMEER GRANITES PVT LTD Vide ITA No 519/Bang/2021 &

Ors dated 30.12.2021, that the delay should be condoned unless mala

fides on conduct of parties. (Copy of case law attached). Recently, the

National Faceless Appeal Centre (NFAC) as on 24.09.2021 in the case of

Police Transport Workshop vide order no ITBA/NFAC/S/250/2021-

4 ITA Nos. 133 to 137/Asr/2021 Executive Engineer Floriculture v. DCIT 22/1035852803(1) wherein the CIT (A) has accepted the delay of 3 years

on the same reasons that has been explained in detail by the Appellant in

the present case. (Copy of Order under section 250 along with

Condonation of delay annexed at the time of filing of appeal of Police

transport workshop is attached). Also it is worthwhile to mention here

that the National Faceless Appeal Centre Delhi as on 24.11.2021 in the

case of KV01 BBCANTT BATWARA SRINAGAR vide Order No

ITBA/NFAC/S/250/2021-22/1037171129(1) has condoned the delay of 4

years on the reason that the DDO was not aware about the existence

of demand and thereby was ignorant about filing of appeal within 30 days.

The Honorable CIT (A) held that there was reasonable and sufficient cause

for not presenting the Appeal within 30 days.

regarding curfew/hartals which hinders the working environments and due

to this the internet connectivity is also disturbed frequently for a long period

of time due to security reasons. Considering the reasons & circumstances

discussed as above which proved the bona fides of the assessee for delay

in filing the appeal before the learned CIT appeal which was beyond its

control. The ld. CIT(A) ought to have appreciated the bona fide reasons for

5 ITA Nos. 133 to 137/Asr/2021 Executive Engineer Floriculture v. DCIT the delay in filing the appeals and condoned the delay and admitted the

appeal before deciding the appeal on merits. Considering the bona-fide

reasons beyond the control of the assessee, the delay of in filing the appeal

is hereby condoned and these appeals are admitted for hearing on merits.

assessee has not been provided the proper opportunity of being heard; that

the appellate orders have been passed without granting any opportunity of

being heard is in violation of principle of natural justice. It was further

submitted that the ld. CIT(A) has dismissed the appeal of the assessee

stating that no representation has been made by the assessee despite the fact that a new Income Tax Portal launched on 7th June, 2021 remained

unavailable (showing technical error) for submitting any responses to the

notices issued and thus the order passed without representation of the

assessee is in violation of principle of natural justice.

CIT(A) was not justified in disposing of the appeal without serving any

mandatory notices as per law on the assessee and deciding the appeal

without adjudicating the grounds on merits of the case by taking the version

of the assessee on the grounds of appeal. The ld. counsel prayed that the

6 ITA Nos. 133 to 137/Asr/2021 Executive Engineer Floriculture v. DCIT appeal may be remanded back to the ld. CIT(A) to pass a speaking order

on merits of the cases.

CIT(A), however, he has no objection to the request of the assessee in

restoring the appeal to the ld. CIT(A) to pass a speaking order.

Admittedly, the CIT(A) has passed the impugned orders ex-parte qua the

assessee without considering any representations from the side of the

appellant-assessee in view of the technical glitches in the income tax

portal. It is noted that the ld. CIT(A) ignored the fact that the new Income Tax Portal was launched on 7th June, 2021 and the two notices of hearing

issued could not be complied with by the assessee for the technical reason

in spite of the fact that the appellant has made many attempts to upload the

response to the said notice but unfortunately the new income tax Portal

was facing glitches and was not allowing to upload the response to the said

notice as contended by the ld. counsel for the assessee. The ld. AR argued

that the second notice dated 28.07.2021 issued by the ld. CIT(A) fixing the

case for hearing as on 04.08.2021 was also could not be complied with, for

the same technical reason. Although, the counsel tried to upload the

7 ITA Nos. 133 to 137/Asr/2021 Executive Engineer Floriculture v. DCIT response to the notice but the portal was still facing the glitches and was

not allowing uploading the response to the notices. It was stated by the ld.

counsel that Meanwhile the Central government has created three

dedicated email addresses for income taxpayers to register grievances

related to faceless tax assessment, penalty and appeals, the Income-Tax

(l-T) department on 07.08.2021(Saturday). The three email addresses were

listed here under:

samadhan.faceless.assessment@incometax.gov.in;

samadhan.faceless.penalty@incometax.gov.in;and

samadhan.faceless.appeal@incometax.gov.in.

issue a mail was dropped to samadhan.faceless.appeal@incometax.gov.in

as on 11-08-2021 read as “THE REPLIES WERE REQUIRED TO BE

SUBMITTED ON OR BEFORE 04.08.2021. HOWEVER DUE TO

TECHNICAL GLITCHES WE ARE UNABLE TO UPLOAD THE REPLIES.”

Thereafter on 17.08.2021 the response was received from the above said

mail “read as that the Grievance has been forwarded to concerned

authorities for necessary resolution but unfortunately the CIT(A) passed

the order u/s 250 as on 25.08.2021 before any resolution provided and

8 ITA Nos. 133 to 137/Asr/2021 Executive Engineer Floriculture v. DCIT without giving any proper opportunity of being heard. (Copy Grievance

mailed & its response is enclosed). He contended that when response

could not be uploaded due to the technical glitches in the New Income Tax

Portal, how the Ld CIT(A) can dismiss the Appeal without giving proper

opportunity of being heard. It is the primary duty of the CBDT/Department

to remove the short comings if any, in the system. If the system has been

implemented by the department. He argued that how the assessee may be

expected to correct the system and remove the technical stitches at their

own.

NABCO PRODUCTS PRIVATE LIMITED vs UNION OF INDIA vide case

no 997 of 2022 as on 03.08.2022 has held that if the system has been

introduced and is being implemented by the Department and therefore, it is

the primary duty of the department to immediately remove short comings, if

any, in the system. For own wrongs of the department, the assessee

cannot be allowed to suffer and put to harassment.

as on 23- 08-2021 summoned the MD&CEO of Infosvs and told him to

explain why even after 2.5 months of the launch of the new income

tax portal, the Glitches in the new income tax portal has not been

9 ITA Nos. 133 to 137/Asr/2021 Executive Engineer Floriculture v. DCIT resolved. The action of the finance minister and submission of grievance

and the relevant case law supports the contention of the appellant that

due to glitches in the portal they were unable to file and upload their

submission which shall be considered as reasonable cause and beyond

the control of the assessee.

Gopi Chand vs ITO Ward-2(4) Noida UP vide ITA No. 3386/DEL/2018

Dated 28.03.2018 has observed that after considering the submissions of

both the parties and perused the material available on the record and has

noticed that the ld. CIT(A) decided the appeal of the assessee ex-parte but

nothing is brought on record to substantiate that the notice of hearing was

served upon the assessee. It is well settled that nobody should be

condemned unheard as the maxim audi alteram partem. Therefore the

bench, by keeping in view the principles of natural justice, deem it

appropriate to set aside this issue back to the file of the Id. CIT(A) to be

adjudicated afresh in accordance with law after providing due and

reasonable opportunity of being heard to the assessee.

aside this issues in these appeals back to the file of the Id. CIT(A) to be

adjudicated afresh in accordance with law after providing due and

10 ITA Nos. 133 to 137/Asr/2021 Executive Engineer Floriculture v. DCIT reasonable opportunity of being heard to the assessee. The assesse are

directed to cooperate in fresh proceedings before the Ld. CIT(A).

Order pronounced in the open court on 10.10.2022

Sd/- Sd/- (Anikesh Banerjee) (Dr. M. L. Meena) Judicial Member Accountant Member *GP/Sr/PS* Copy of the order forwarded to: (1) The Appellant: (2) The Respondent: (3) The CIT(Appeals) (4) The CIT concerned (5) The Sr. DR, I.T.A.T