2023 (8) TMI 274 - AT - Income Tax

Condonation of delay - delay of almost 318 days - assessee contended that the notice was not issued on the mail id mentioned in the form no. 35 filed by the assessee and thus, the assessee could not represent their case before the ld. CIT(A)/NFAC and the fact that the order has been passed has came to the knowledge only when the ld. AO issued notice for levy of penalty - HELD THAT - Assessee in his affidavit detailed the reasons for the delay and the same is supported by the affidavit of this Chartered Accountant made out a clear case that there was sufficient cause which being beyond his control, prevented him from filing the present appeal in time before the Tribunal. We find that there is no culpable negligence or mala fide on the part of the assessee in delayed filing of the present appeal and he does not stand to benefit by resorting to such delay. Therefore, in the factual matrix of the present case, we find that there exists sufficient and reasonable cause for condoning the delay of 318 days in filing the present appeal. CIT(A) (NFAC) decided the appeal without providing reasonable opportunity of being heard - fixation notices u/s 250, referred to in appeal order appear to were never received either by the Assessee or his earlier A/R, which could have been mailed to some other unknown mailing address not of the Assessee or his earlier A/R. - HELD THAT - The assessee is deprived off the justice before the ld. CIT(A) even though the ld. CIT(A) has given the finding on the merits based on the facts available before him. But since, the assessee has not received an opportunity of being heard before the ld. CIT(A) on account non receipt of the notice on the mail id given in the appeal memo. The Bench noted from the entire episode that the assessee is deprived off to get the justice from the judicial authorities below because of technical latches which should not be done. Hence, the Bench in the interest of equity and justice restores the appeal of the assessee to the file of the ld. CIT(A) for a fresh adjudication.

Summary

Issues Involved:
1. Condonation of Delay in Filing Appeal
2. Merits of the Case: Non-receipt of Notices and Opportunity of Being Heard

Summary of Judgment:

1. Condonation of Delay in Filing Appeal:
The assessee filed an appeal with a delay of 318 days. The delay was attributed to the non-receipt of notices at the correct email address, which led to the ex-parte dismissal of the appeal by the CIT(A), NFAC. The assessee became aware of the dismissal only after receiving a penalty notice from the AO. The Tribunal considered affidavits from the assessee and his Chartered Accountant, which confirmed the non-receipt of notices and justified the delay. Citing various judgments, including Collector, Land Acquisition vs. MST Katiji, the Tribunal emphasized the principle of "substantial justice" over technicalities and condoned the delay, admitting the appeal for adjudication on merits.

2. Merits of the Case: Non-receipt of Notices and Opportunity of Being Heard:
The assessee argued that the CIT(A), NFAC decided the appeal without providing a reasonable opportunity of being heard, as the notices were allegedly sent to an incorrect email address. The Tribunal noted that the CIT(A) had issued multiple notices, none of which were complied with by the assessee. However, affidavits from the assessee and his Chartered Accountant supported the claim of non-receipt of notices. The Tribunal found that the assessee was deprived of justice due to technical lapses and decided to restore the appeal to the CIT(A) for fresh adjudication. The Tribunal directed the assessee to cooperate and avoid frivolous adjournments.

Conclusion:
The appeal was allowed for statistical purposes, and the case was remanded back to the CIT(A) for fresh adjudication, ensuring the assessee is given a fair opportunity to present his case. The order was pronounced in the open Court on 17/03/2023.