2021 (7) TMI 890 - AT - Income Tax

Condonation of delay - delay of 599 days has occurred - HELD THAT - We note that the delay in filing the appeal has not occurred on account of gross negligence of the assessee. We note that sub-section 5 of section 253 of the Act provides that Tribunal may admit the appeal or permit filing of memorandum of cross objection after expiry of relevant period, if it is satisfied that there was sufficient cause for not presenting it within that period. We note that assessee has explained the delay successfully, therefore he deserves that delay in filing the appeal should be condoned. Ex-parte order by CIT-A - HELD THAT - As the assessee did not appear during the appellate proceedings, however, we note that ld. CIT(A) has also adjudicated the issue on merits taking into account the assessment order and statement of facts furnished with Form No. 35. The ld. CIT(A) has given five opportunities of hearing, but none appeared before him. we note that order passed by the ld. Assessing Officer is also an ex-parte order under section 144 therefore we note that assessee could not plead his case before the ld. Assessing Officer. We also note that during the assessment stage, the ld. Assessing Officer has issued several notices to the assessee, but assessee did not make the compliance and therefore, the ld. Assessing Officer has passed the ex-parte order under section144 of the Act. We note that in assessee's case the evidences and books of accounts are to be verified at primary stage, therefore, we are of the view that the said lis should be remitted back to the file of the ld. Assessing Officer for fresh assessment. Hence, we set aside the order of Ld. CIT(A) and remit the issue back to the file of the assessing officer for de-novo adjudication.

Summary

Issues Involved:
1. Delay in filing the appeal.
2. Ex-parte order by the Commissioner of Income Tax (Appeals).
3. Ex-parte order by the Assessing Officer under section 144 of the Income Tax Act.
4. Remittance back to the Assessing Officer for fresh adjudication.

Issue-wise Detailed Analysis:

1. Delay in Filing the Appeal:
The appeal filed by the assessee for the Assessment Year 2013-14 was barred by a limitation of 599 days. The assessee filed a petition requesting the Bench to condone the delay, supported by an affidavit explaining the reasons. The affidavit stated that the delay was due to the lack of physical service of the order by the CIT(A) and was only discovered upon accessing the online portal on 10.03.2021. The Departmental Representative opposed the condonation, arguing that the assessee failed to explain the delay adequately. The Tribunal, referencing Section 253(5) of the Income Tax Act and a similar precedent in the case of Suchit Arvindbhai Patel Vs. ITO, concluded that the delay was not due to gross negligence and should be condoned. The Tribunal emphasized a liberal interpretation of "sufficient cause" to advance substantial justice.

2. Ex-parte Order by the Commissioner of Income Tax (Appeals):
The impugned order by the CIT(A) was ex-parte as the assessee did not appear during the appellate proceedings despite being given five opportunities. The CIT(A) adjudicated the issue on merits based on the assessment order and the statement of facts furnished with Form No. 35. The Tribunal noted that the non-appearance of the assessee led to an ex-parte decision by the CIT(A).

3. Ex-parte Order by the Assessing Officer under Section 144 of the Income Tax Act:
The Assessing Officer also passed an ex-parte order under section 144 of the Act due to the assessee's non-compliance with several notices issued during the assessment stage. This non-compliance prevented the assessee from pleading his case before the Assessing Officer, leading to the ex-parte assessment.

4. Remittance Back to the Assessing Officer for Fresh Adjudication:
Given that both the CIT(A) and the Assessing Officer's orders were ex-parte, the Tribunal decided that the matter required verification of evidence and books of accounts at the primary stage. Therefore, the Tribunal set aside the order of the CIT(A) and remitted the issue back to the Assessing Officer for a fresh assessment. This decision was made to ensure a fair opportunity for the assessee to present his case and for a thorough examination of the evidence.

Conclusion:
The Tribunal condoned the delay in filing the appeal, set aside the ex-parte orders of the CIT(A) and the Assessing Officer, and remitted the case back to the Assessing Officer for de-novo adjudication. The appeal was allowed for statistical purposes, ensuring that the assessee would have a fair opportunity to present his case.