Delay in filing appeal condoned as assessment order was not sent by post

Delay in filing appeal condoned as assessment order was not sent by post but to an inactive email.

In a recent judgment, ITAT Cochin has condoned the delay in filing appeal as assessment order was not sent by post. The Tribunal opined that for communication to be complete, the email ought to be followed by a text message informing assessee of the transmission of the assessment order by mail.

ABCAUS Case Law Citation:
ABCAUS 4111 (2024) (06) ITAT

In the instant case, the assessee had challenged the order passed by the CIT(A) in dismissing the appeal in limine for the delay in filing the appeal.

The Tribunal observed that the explanation for the nearly 5 month delay in filing the first appeal by the assessee, before the CIT(A), was that she had omitted to check her email account, being not an account which she normally visited or in regular use and, therefore, in ignorance of her assessment.

On being enquired as to how, then, the assessee became aware of the impugned order so as to file the second appeal, and in time, it was submitted that the knowledge of assessment order passed under section 147 read with section 144 & 144B of the the Income Tax Act, 1961 (the Act) only on the receipt of the penalty notice u/s. 274 r/w s. 271A of the Act by post.

It was further submitted that the inference drawn by the CIT(A) that the assessee duly responded to the notice u/s 148 and that shows that assessee was attempting to mis-state facts, to cover her negligence in not filing the appeal in time, was wrong as the said notice u/s 148 was also not received by email, but by post.

The Tribunal noted from the postal receipts of notices u/s. 148(1), 143(2) and the penalty notice u/s 274 which was served after passing of the penalty order.

The Tribunal opined that there was truth in the assessee’s claim of no adverse inference being liable to be drawn from the response to the notice u/s. 148 of the Act, also bearing out her credentials inasmuch as the first appeal was filed on becoming aware of the passing of the assessment order on the receipt of penalty notice.

The Tribunal further observed that the assessee had since changed her email address as specified in Form 35, i.e., the memo of appeal before the first appellate authority  and, further, furnished a postal address to the office of the first appellate authority for communication. The subsequent revert to the email id afore-mentioned in F/36, i.e., the appeal memo before the Tribunal, was on account of difficulties being faced with the alternate one, so that the assessee had since deemed it proper to use the same as her regular email id, further confirming that notices at the said id would be duly responded to.

The Tribunal opined that facts, as explained in the judgment of Hon’ble Supreme Court must be viewed in their natural perspective, having regard to the compulsions of the circumstances of the case. And, in the absence of any dishonest or improper motive on the part of the assessee, by drawing from the among the two possible inferences, one that would lead to justice and equity. The provisions of law must be equitably interpreted and justly administered.

The Tribunal observed that the matter, is to be looked at from a practical standpoint, i.e., the facts in the setting in which they obtain. The assessee was a doctor by profession, undergoing, after her post-graduation, during the relevant year. It was not uncommon for people, particularly engaged wholly in their professions, to not visit their email id, used generally for personal communication. Sure, she ought to have been circumspect in providing her email id and, further, one which is not in regular use, to the Revenue for communication purposes. The same, however, is generally by the Counsels, or at their behest.

The Tribunal opined that for the communication to be complete, the email ought to be followed by a text message informing the assessee of the transmission of the assessment order by mail, even as mandated by the standard operating procedure in this regard, if also not by post, as in fact the Revenue does qua notices u/ss.148, 143(2) and 274, as indeed the penalty order.

The Tribunal opined that there was a reasonable cause for the delay, therefore CIT(A) ought to have been condoned the delay on the explanation as to non-receipt, and of acting with alacrity on knowledge of the relevant facts, which also transcends the extent of delay.

Accordingly, the Tribunal directed CIT(A) to hear and decide the assessee’s appeal on merits. In the result, the assessee’s appeal was allowed. 

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