NFAC did not sent notice to email id mentioned in Form 35. ITAT remand case despite CIT(A) had given finding on the merits.
ABCAUS Neutral Case Law Citation:
ABCAUS 3697 (2023) (04) ITAT
Important Case Laws relied upon by parties:
N. Balakrishnan vs. M. Krishnamurthy (1998) 7 SSC 123 (SC)
New India Insurance Co. Ltd. vs. Smt. Shanti Misra AIR 1976 SC 237
O. P. Kathapadia vs Lakhmir Singh AIR 1984 SC 1744
Sandy Mallick Vs. ITO (2022) 220 (Ctk) 430
In the instant case, the assessee had challenged the order passed by the CIT(A)/NFAC in passing an ex parte order.
The case of the assessee was that after filing on-line appeal by Chartered Accountant before Commissioner of Income tax (Appeals), he did not receive any fixation notice either in physical form or through e-mail address given in Form No. 35, therefore he was not aware about the progress of the appeal.
The assessee filed an affidavit stating that he came to know that CIT(A) Faceless had dismissed the appeal ex-parte, only on contacting his Chartered Accountant and after providing the pass-word to him.
The assessee also filed an affidavit of its CA stating that in the Form No. 35 which was thereafter transferred to NFAC, the e-mail address given was of him and that no fixation notice or order was received on his email address.
Accordingly, the assessee prayed the ITAT to condone the delay in filing the appeal.
The ITAT observed that the assessee contended that the notice was not issued on the mail id mentioned in the form no. 35 filed by the assessee and thus, the assessee could not represent their case before the CIT(A)/NFAC. The fact that the order has been passed came to the knowledge only when the AO issued notice for levy of penalty.
The Tribunal stated that under section 253(5) of the Act, the Tribunal may admit an appeal filed beyond the period of limitation where it is satisfied that there was sufficient cause on the part of the assessee for not presenting the appeal within the prescribed time. The explanation of the assessee therefore, becomes relevant to determine whether the same reflects sufficient and reasonable case on its part in not presenting the present appeal within the prescribed time.
The ITAT, in the entirety of facts and circumstances of the case, opined that the assessee in his affidavit detailed the reasons for the delay and the same was supported by the affidavit of his Chartered Accountant made out a clear case that there was sufficient cause which being beyond his control, prevented him from filing the present appeal in time before the Tribunal.
The Tribunal sated that there was no culpable negligence or mala fide on the part of the assessee in delayed filing of the present appeal and he did not stand to benefit by resorting to such delay.
The ITAT held that in the factual matrix of the present case, there exists sufficient and reasonable cause for condoning the delay of more than 300 days in filing the present appeal as held by the Hon’ble Supreme Court.
Further, the ITAT opined that the assessee was deprived off the justice before the CIT(A) even though the CIT(A) had given the finding on the merits based on the facts available before him. But since, the assessee had not received an opportunity of being heard on account of non-receipt of the notice on the mail id given in the appeal memo
Accordingly, the ITAT restored the appeal to the file of the CIT(A) for a fresh adjudication and the appeal was statistically allowed in favour of the assessee.
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