When assessee did not opt yes or no to receive notices by email, such notices amounted to no service
In a recent judgment, ITAT has held that when in the form No. 35 filed the assessee did not either say ‘yes’ or ‘no’ to question whether assessee would like to receive the notices through email, sending the notices to the assessee through email was no service of notice.
ABCAUS Case Law Citation:
5093 (2026) (04) abacus.in ITAT
In the instant case, the assessee had challenged the order passed by the CIT(A) of National Faceless Appeal Centre in has dismissing the appeal of the assessee for non-prosecution.
The appellant assessee was a partnership firm carrying on the business of construction of civil structures. The return of income was selected for scrutiny and notice under section 143(2) was issued.
The income of the assessee was assessed by making additions on account of being non-deduction of tax at source under section 194Q of the Income Tax Act, 1961 (the Act) disallowance u/s 40(a)(ia) for non deduction of TDS under section 194C and unexplained sundry creditors.
The CIT(A) granted four opportunities of hearing, but assessee did not submit any response and the CIT(A) dismissed the appeal of the assessee stating that assessee was not interested in prosecuting the appeal.
Before the Tribunal, the assessee inter alia submitted that on form No. 35 the assessee had not confirmed that the notices to be sent by email. Despite migration, the notices could not have been sent through email. Therefore, four notices submitted by the CIT-A within a short span of two months which were not received by the assessee and therefore it had resulted into the appellate order passed.
The Tribunal observed that perusal of form No. 35 filed before CIT(A) showed that assessee did not either say ‘yes’ or ‘no’ where question was raised whether assessee would like to receive the notices through email. Therefore, sending the notices to the assessee through email was no service of notice.
The Tribunal further observed that the CIT(A) is duty-bound to decide the issue on the merits of the case. However, there was not a single word being said on the merits of the case. The appeal of the assessee was dismissed for non-prosecution.
The Tribunal held that the CIT(A) do not have the power to dismiss the appeal for non prosecution. He has only powers of confirm, reduce, enhance or annul the assessment Therefore, the appellate order was not sustainable in law.
Accordingly, the Tribunal restored the whole appeal back to the file of the CIT(A) to decide the appeal on merits of the case with direction to the assessee to respond to the emails or notices sent.
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