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Income Tax Appellate Tribunal, DELHI BENCH: SMC: NEW DELHI
Before: SHRI CHANDRA MOHAN GARG
Date of Hearing : 08.05.2023 Date of Pronouncement : 10.05.2023 ORDER PER CHANDRA MOHAN GARG, J.M.
This appeal filed by the assessee is directed against the order dated 26.08.2022 of the Ld. NFAC, New Delhi, relating to Assessment Year 2012-13. Application of assessee seeking condonation of delay of 29 Days 2. The learned counsel of assessee submitted that the assessee received copy of order on 30.12.2022 and the limitation for filing appeal was expired on 28.02.2023. The learned counsel submitted that the assessee filed appeal on 29.03.2023 by the delay of 29 days due to the reason that the first appellate order could be downloaded from e-portal on the very same date and the assessee carefully kept the papers in the file for delivering the same to the advocate for Tribunal and the file was misplaced from the assessee’s office and mixed with the other files. The learned counsel submitted that due to said reason the appeal was filed by the delay of 29 days as the file could be located in the office of the assessee on 27.03.2023 and the appeal was filed on 29.03.2023. The learned counsel submitted that in such a situation the delay in filing appeal was caused due to the reason beyond control of the assessee which is a sufficient cause explaining the delay of 29 days in filing appeal before the Tribunal. Therefore the delay may kindly be condoned.
Replying to the above the learned Senior DR strongly opposed to the condonation petition.
The cause stated by the assessee in the condonation petition supported by an affidavit of assessee is a sufficient cause explaining the delay of 29 days in filing the appeal before the Tribunal. Therefore delay is condoned and appeal is admitted for hearing.
The learned Senior DR, in all fairness, agreed to the submission of the learned AR that the AO has passed ex-parte order u/s. 144 r.w.s 147 of the Act, and the Ld. CIT(A) has also passed first appellate order on 26.08.2022. Despite the fact that the assessee by way of adjournment application dated 04.08.2022 sought adjournment for 19.08.2022 which was not provided to the assessee and the Ld. CIT(A) passed first appellate order depriving the assessee from filing his explanation and documentary evidences. Therefore the learned Senior DR submitted that the Department has no serious objection if the matter is restore to the file of AO of denovo framing of assessment order for A.Y. 2012-13.
On careful consideration of above submissions from the adjournment details filed by the learned AR it is clear that the assessee uploaded adjournment application on 04.08.2022 seeking adjournment up to 19.08.2022 but from the first appellate order it is clearly discernable that the adjournment application of assessee has not been taken in to consideration. The AO has also passed ex- parte order u/s. 144 of the Act. In such a situation, I am of the considered view that the assessee should be allowed opportunity of hearing which was not provided by the authorities below. Hence the orders of the authorities below are set aside and the matter is 2 AO for framing denovo assessment order after allowing due opportunity of hearing to the assessee and without being influenced from the earlier assessment and first appeal order. 7. In the result appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 10.05.2023.