Delay in filing of an appeal condoned as delay was not intentional or deliberate: ITAT Surat

Akshaykumar Lathiya Vs ITO (ITAT Surat)

ITAT Surat condoned the delay of 159 days in filing of an appeal as delay in filing appeal is not intentional nor deliberate and assessee was prevented by sufficient reason for not filing an appeal on time.

Facts- This appeal by the assessee is directed against the order of the National Faceless Appeal Centre, Delhi (NFAC)/learned Commissioner of Income Tax (Appeals) for the Assessment Year (AY) 2017-18. CIT(A) confirmed the action of Assessing Officer in making addition of Rs.36.00 lacs under section 69A on account of cash deposit during demonetization period and taxed the additions under section 115BBE @ 77.25%. Notably, there is a delay of 159 days in filing of an appeal before the Tribunal.

Conclusion- Held that delay in filing appeal is not intentional nor deliberate and that the assessee was prevented by sufficient reason for not filing appeal before the Tribunal on time. Ld. AR of the assessee also submitted that while filing the appeal before the ld. CIT(A), the assessee, though the has given e-mail ID but opted “NO” on the option of service of notice through e-mail. Considering the overall facts and circumstances of the case that the delay is only of 159 days which seems to be not intentional or deliberate, therefore, keeping in view the principle that when technical consideration are kept against the cause of substantial justice, the cause of substantial justice may be preferred. Thus, the delay in filing appeal is condoned.

FULL TEXT OF THE ORDER OF ITAT SURAT

1. This appeal by the assessee is directed against the order of the National Faceless Appeal Centre, Delhi (NFAC)/learned Commissioner of Income Tax (Appeals), [in short, the ld. CIT(A)] dated 31/08/2023 for the Assessment Year (AY) 2017-18. The ld CIT(A) confirmed the action of Assessing Officer in making addition of Rs.36.00 lacs under section 69A on account of cash deposit during demonetization period and taxed the additions under section 115BBE @ 77.25%.

2. Rival submissions of both the parties have been heard and record perused. The learned Authorised Representative (ld. AR) of the assessee fairly submits that there is delay of 159 days in filing appeal before the Tribunal. The assessee has filed application for condonation of delay. In the condonation application, the assessee stated that the impugned order was passed on 31/08/2023 and the present appeal was filed on 06/04/2024, which resulted in delay of 159 days. The ld. AR of the assessee submits that at the time of filing appeal before the ld. CIT(A) (in form-35), the assessee has given e-mail address as of [email protected] . However, in the same column, the assessee opted ‘NO’, against the option of serving of notice through e-mail. The assessee was not well-versed with the e-mail and ultimately the appeal of assessee was dismissed in ex parte order. The ld AR of the assessee submits that neither physical notice of hearing was served no copy of order in physical form was served on the assessee. The assessee was not aware about passing such order. the assessee came to know about passing of the impugned order only in the month of March 2024, when he checked ITD Portal. The assessee immediately consulted with Senior CA Sh Rasesh Shah and filed present appeal. There is no intentional or deliberate delay in filing appeal, rather for the reasons explained as above. The ld AR of the assessee prayed for condoning the delay in filing appeal.

3. On merit, the ld. AR of the assessee submits that the Assessing Officer passed assessment order under Section 144 of the Income Tax Act, 1961 (in short, the Act) and made addition of Rs. 36,00,000/- on account of cash deposit in the bank during the period of demonetization. The ld. AR of the assessee submits that the Assessing Officer has passed assessment order without giving fair and reasonable opportunity of hearing to the assessee. The ld CIT(A) also passed ex-parte order without discussing merits of the case. The ld. AR of the assessee submits that she undertakes on behalf of assessee to be more vigilant in future in complying the notices issued by the lower authorities. The assessee has a good case on merit and is likely to succeed if one more opportunity is allowed to the assessee to contest the case on merit.

4. On the other hand, the learned Senior Departmental Representative (ld. Sr. DR), on the plea of condonation of delay submits that the assessee has raised general plea that he was not served with the notice of hearing or physical copy of the order. the assessee has not shown reasonable cause for condoning the delay. The ld SR DR for the revenue submits that in case the bench may take decision as per law. On merits, the ld. Sr. DR for the revenue submits that the assessee was allowed ample opportunity by the lower authorities, it is the assessee who has not availed such opportunities, in case the Bench is of the view that the assessee deserve any relief, the matter may be restored back to the file of Assessing Officer with direction to file appropriate reply and evidence to substantiate the cash deposit and other credit in the bank account of assessee.

5. I have considered the submissions of both the parties and have perused the orders of the lower authorities carefully. First, I will consider the plea of ld AR of assessee for condoning delay in filing appeal. The ld. AR of the assessee vehemently urged that delay in filing appeal is not intentional nor deliberate and that the assessee was prevented by sufficient reason for not filing appeal before the Tribunal on time. Ld. AR of the assessee also submitted that while filing the appeal before the ld. CIT(A), the assessee, though the has given e-mail ID but opted “NO” on the option of service of notice through e-mail. Considering the overall facts and circumstances of the case that the delay is only of 159 days which seems to be not intentional or deliberate, therefore, keeping in view the principle that when technical consideration are kept against the cause of substantial justice, the cause of substantial justice may be preferred. Thus, the delay in filing appeal is condoned. Now adverting to the merit of the case.

6. I find that there is no dispute that the lower authorities have passed the orders in ex parte proceedings. I find that the case of assessee was reopened on the basis of information that there are certain cash and other credit entry in the bank account of assessee. I find that the assessee failed to respond before the Assessing Officer as well as before the ld. CIT(A). Though, the ld. AR of the assessee vehemently argued that while filing the appeal before the ld. CIT(A), the assessee, though the has given e-mail ID but opted “NO” on the option of service of notice through e-mail. Therefore, considering the overall facts and circumstances of the case that substantial rights of the assessee are involved in the present case, the matter is restored back to the file of Assessing Officer to pass assessment order afresh. Needless to direct that before passing the order, the Assessing Officer shall grant fair and reasonable opportunity of hearing to the assessee. The assessee is also directed to be more vigilant in future and not to cause further delay and seek adjournment without any valid reason and to furnish all the details and his submissions and evidences on various grounds of appeal raised, as soon as possible, if so desired without any further delay. In the result, the grounds of appeals raised by the assessee are allowed for statistical purposes.

7. In the result, this appeal of assessee is allowed for statistical purposes only.

Order announced in open court on 01st October, 2024.