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Income Tax Appellate Tribunal, AMRITSAR BENCH, AMRITSAR
Before: DR. M. L. MEENA & SH. ANIKESH BANERJEE
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.
The learned AR submitted that the order of the ld. CIT(A) was
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.
It is settled principle that expression “Sufficient Cause” ought to be
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.
The counsel submitted that a prevalent situation in Kashmir valley
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.
At the outset, the ld. counsel for the assessee submitted that the
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.
The counsel has further stated in the virtual hearing that the ld.
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.
Per contra, the ld. Addl. CIT-DR stands by the orders of the ld.
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.
We have heard the rival contentions, perused the material on record.
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.
The learned AR contended that for seeking the resolution on the
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.
Recently the Hon’ble Allahabad High court in the case of M/S
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.
It is worthwhile to mention here that even the Finance Minister
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.
The Income Tax Appellate Tribunal Delhi bench in the case of M/s
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.
In view the principles of natural justice, We deem it appropriate to set
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).
In result, all the subject appeals are allowed for statistical purpose.
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