ITAT set aside order as no opportunity was allowed to assessee to explain delay

ITAT set aside order as no opportunity was allowed to assessee to explain the delay in filing appeal

In a recent judgment, the ITAT Ahmedabad set aside order as no opportunity was allowed by the CIT(A) to the assessee to explain the reason of delay nor was he ever asked to file an affidavit and the documentary evidences.

ABCAUS Case Law Citation:
ABCAUS 4127 (2024) (07) ITAT

In the instant case, the assessee had challenged the order passed by the CIT(A), National Faceless Appeal Centre (NFAC) in not condoning the delay in filing of the appeal by the appellant and dismissing the same in limine.

The appellant assessee had not filed return of income for relevant A.Y. The Assessing Officer (AO) initiated proceeding under Section 147 of the Income Tax Act, 1961 (the Act) on the basis of information that the assessee had jointly purchased an immovable property.

There was no response to the notice under Section 148 of the Act and no compliance was made by the assessee in the course of assessment proceedings. The assessment was completed ex-parte under Section 144 r.w.s. 147 of the Act making additions on account of share in the property purchased, investment in bonds/debentures and commission income.

Before the Tribunal the assessee contended that the reason for delay was explained in Form No. 35 but the CIT(A) did not condone the delay and dismissed the appeal in limine witout giving any opportunity to the assessee in the course of appeal to explain the reason for delay.

The Tribunal observed that there was a delay of more than ten months in filing the appeal before the CIT(A) and that the CIT(A) had dismissed the appeal of the assessee without considering the merits of the case.

The Tribunal further noted that before the CIT(A), the assessee had explained the reason of delay that all the papers/documents required for filing the appeal was handed over to then, Authorised Representative who the appellant trusted for filing the appeal. The appellant was under impression that AR would have filed the appeal within prescribed time limit. When the appellant visited the office of the then AR for collecting the acknowledgement for filing the Form No. 35, it came to the knowledge of the appellant from office staff of the then AR that appeal was filed or not it came to know after verification from file/records.

The Tribunal further observed that CIT(A) had considered the submission of the assessee and observed that the assessee did not submit a formal condonation petition seeking condonation of delay along with affidavit and documentary evidences in support of the reasons stated at Column No.15 of Form No. 35.

The Tribunal noted that from the order of the CIT(A) it was clear that no opportunity was allowed by the CIT(A) to the assessee to explain the reason of delay nor was he ever asked to file an affidavit and the documentary evidences. Thus, assessee was not allowed any opportunity to explain the delay or to bring on record the supporting documentary evidences for the reason of delay as explained in Form No.35. The approach of the CIT(A) to dismiss the appeal on the ground of delay without allowing any opportunity to the assessee was not fair and in accordance with the principle of natural justice.

The Tribunal further noted that the assessee had filed an affidavit before the Bench explaining in detail the reason for delay. The Tribunal opined that the assessee had reasonably explained the reason for delay in filing the appeal before the CIT(A).

Accordingly, the Tribunal set aside the matter to the file of the CIT(A) to decide the matter afresh on the merits of the case. And CIT(A) was directed to examine the evidences filed by the assessee, examine the merits of the case and re-decide the matter after allowing a proper opportunity of being heard to the assessee. 

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