2021 (6) TMI 308 - AT - Income Tax

Condonation of delay - inordinate delay of 640 days has occurred - HELD THAT - As seen that the assessee having appointed a counsel to represent him as is evidenced from the record itself namely Column No. 4 of page 1 extracted herein above supports the claim that the assessee was live and alert to his responsibilities. In the circumstances, where the counsel was appointed to represent the assessee, the assessee could afford to remain sanguine and rest in belief that all that is required to be done by him is being done. A perusal of the above extract demonstrates that the assessee remained unrepresented. The argument that the order was not available to him is strengthened. Accordingly, in the peculiar facts it clearly demonstrates that the delay has occurred for reasons beyond the control of the assessee. It is seen that even otherwise it is evident on record that no advantage has been gained by the assessee in filing the appeal late nor any advantage vested with the department has been deprived. Satisfied by the explanation afforded on a consideration of facts, circumstances and arguments which stand unrebutted by the Revenue, the delay is condoned.

Summary

Issues:
1. Condonation of delay in filing the appeal.
2. Request for remand back to the CIT(A) due to the assessee remaining unrepresented.

Condonation of Delay:
The appeal was filed by the assessee against the order dated 28.07.2017 of CIT(A)-II Gurgaon for the 2009-10 assessment year. The Registry pointed out a delay of 640 days in filing the appeal. The assessee, through the counsel, moved an application addressing the delay, supported by an Affidavit. The counsel did not participate in the proceedings before the First Appellate Authority, and the available address was that of the counsel. The delay was attributed to the counsel not informing the assessee about the decision of the appeal, leading to the delay. The Senior DR did not dispute the facts and did not oppose the prayer for Condonation of Delay. The Tribunal, after considering the submissions and material on record, condoned the delay of 640 days. The delay was deemed to have occurred for reasons beyond the control of the assessee, and no advantage was gained by the assessee in filing the appeal late. The delay condonation was supported by the unrebutted explanation and circumstances presented by the assessee.

Request for Remand:
The assessee, through the AR, requested the matter to be remanded back to the CIT(A) as the assessee was not heard effectively. The AR assured full participation of the assessee in the proceedings before the CIT(A) in case of remand. The request was not opposed by the DR. Considering the peculiar facts where the assessee remained unrepresented for no fault of his own, the Tribunal set aside the impugned order and remanded the issue back to the CIT(A). The CIT(A) was directed to pass an order based on the material available on record after providing the assessee a reasonable opportunity to be heard. The assessee was instructed to participate fully and fairly in the proceedings before the CIT(A). The order was pronounced during a virtual hearing, and the appeal of the assessee was allowed for statistical purposes.

In conclusion, the Tribunal condoned the delay in filing the appeal due to circumstances beyond the assessee's control and remanded the issue back to the CIT(A) for a fair hearing considering the assessee's right to be heard effectively.