2023 (4) TMI 138 - AT - Income Tax

Condonation of delay of 622 - period of delay comprises of pre-covid 19 and covid 19 pandemic period - As submitted that due to non-service of notices, non-supply of copy of appeal order, COVID-19 Pandemic complete lockdown, assessee being NRI and not present in India, the filing of appeal got delayed - HELD THAT - For the period of covid 19 pandemic, there is no dispute that the said period needs to be excluded for the purposes of limitation in view of decision of the Hon ble Supreme Court. For the period pre-covid 19 pandemic - Though the assessee has taken excuse of not physically present in the Country at the time of passing of the order and the order not being communicated physically to him, the fact remains that the order was uploaded on the IT portal though it is also a fact that the assessee was not able to access and download the same even today, which may be due to some technical glitch, a fact not disputed by the Revenue. At the same time, as soon as the assessee was ceased of the communication of dismissal of his appeal and in receipt of tax recovery notice from the DCIT, he took steps in reaching out to the DCIT as well as the ld CIT(A) and has filed the present appeal. We therefore find that though there is a delay, there is however no culpable negligence or malafide on the part of the assessee in delayed filing of the present appeal. There exists sufficient and reasonable cause for condoning the delay in filing the present appeal and as held by the Hon ble Supreme Court, where substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserved to be preferred and the assessee deserve to be heard on merits of the case. Therefore, in exercise of powers u/s 253(5) of the Act, we hereby condone the delay in filing the present appeal as we are satisfied that there was sufficient cause for not presenting the appeal within the prescribed time and the appeal is hereby admitted for adjudication. We are of the considered view that the assessee couldn t be punished unheard as the same would be against the canons of natural justice and therefore, deserve one more opportunity to put forth his submissions and be heard on merits of the case - we set-aside the matter to the file of the ld CIT(A) to decide the matter a fresh as per law after providing reasonable opportunity to the assessee and to ensure in timely completion of the proceedings preferably within two months of receipt of this order.

Summary

Issues Involved:
1. Delay in filing the appeal.
2. Non-compliance and ex-parte order by CIT(A).
3. Condonation of delay and hearing on merits.

Summary:

1. Delay in Filing the Appeal:
The assessee filed an appeal against the CIT(A)-43, New Delhi's order dated 04/09/2018, with a delay of 622 days. The delay was attributed to reasons beyond the control of the assessee, an NRI based in Canada, including non-service of notices, non-receipt of the appellate order, and the COVID-19 pandemic.

2. Non-Compliance and Ex-Parte Order by CIT(A):
The CIT(A) passed the impugned order ex-parte due to non-compliance by the assessee. Notices for hearings on 06.07.2018 and 25.07.2018 were allegedly sent via email and speed post, but the assessee claimed not to have received them at the address mentioned in Form 35. The CIT(A) dismissed the appeal on account of non-prosecution without deciding on the merits.

3. Condonation of Delay and Hearing on Merits:
The Tribunal examined the reasons for the delay, including the affidavit submitted by the assessee, which stated non-receipt of notices and appellate order, and the impact of the COVID-19 pandemic. The Tribunal found that the assessee was not in India during the relevant period and that there was no culpable negligence or malafide intent. The delay was condoned in the interest of substantial justice, and the appeal was admitted for adjudication. The Tribunal emphasized that the CIT(A) should have decided the appeal on merits even in the absence of the assessee's participation. The matter was remanded back to the CIT(A) for a fresh decision on merits, ensuring a fair opportunity for the assessee to present his case.

Conclusion:
The appeal was allowed for statistical purposes, and the matter was remanded to the CIT(A) for a fresh adjudication on merits, with a directive for timely completion of proceedings and ensuring the assessee's participation. The Registry was instructed to serve a copy of the order to the assessee and his authorized representative.