Shri Gurmej Singh Johal, Canada V. DCIT(International Taxation)Circle, Chandigarh

ITA 318/CHANDI/2020

AI Insights

The case involves an appeal by Gurmej Singh Johal, an NRI based in Canada, against the order of the CIT(A)-43, New Delhi, which was passed ex-parte due to non-compliance by the assessee. The appeal was initially filed late by 622 days, attributed to reasons including non-receipt of notices and the COVID-19 pandemic. The Tribunal examined the circumstances surrounding the delay, including the non-availability of the appellate order on the ITBA portal and the absence of physical presence of the assessee in India during the relevant period. The Tribunal noted that despite the delay, the assessee had made efforts to communicate with the tax authorities and had not been negligent.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 127692 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-03-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 14-03-2023
• Assessment Year: 2010-2011
• Appeal Filed On: 01-09-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Reasonable cause
• Section: 43

Judgement Text

आयकर अपील य अ धकरण,च डीगढ़ यायपीठ “ए” , च डीगढ़ IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH “A”, CHANDIGARH ी स ु धांश ु ीवा तव, या!यक सद य, एवं ी #व$म &संह यादव, लेखा सद य BEFORE: SHRI. SUDHANSHU SRIVASTAVA, JM & SHRI. VIKRAM SINGH YADAV, AM ITA NO.318 /Chd/ 2020 Assessment Year : 2010-11 Gurmej Singh Johal 3628, 33 rd Street, Edmonton AB, Canada The DCIT (International Taxation) Circle, Aayakar Bhawan, Sector-17E Chandigarh PAN NO: ASEPJ6677L Appellant Respondent ! " Assessee by : Shri Rajinder Kumar Chopra, C.A # ! " Revenue by : Smt. Tarundeep Kaur, Sr. D.R $ % ! & Date of Hearing : 15/03/2023 '()* ! & Date of Pronouncement : 20/03/2023 आदेश/Order PER VIKRAM SINGH YADAV, A.M. : This is an appeal filed by the Assessee against the order of the Ld. CIT(A)- 43, New Delhi dt. 04/09/2018 pertaining to A.Y. 2010-11. 2. At the outset, it is noted that there is delay in filing the present appeal by 622 days and further it is also noted that the Ld. CIT(A)-43 has passed the impugned order ex-parte qua the assessee on account of non-compliance without deciding the same on merits of the case. 3. In this regard, the Ld. AR submitted that the assessee has moved an application seeking condonation of delay and has also filing an affidavit in support of its application. It was submitted that the appeal is filed late by 622 days due to reasons beyond the control of the assessee Sh. Gurmej Singh Johal, an NRI based in Canada. It was submitted that in response to the show cause notices issued by the Registry dated 20.4.2021 and 25.10.2021, the AR has filed replies, on behalf of the assessee, through speed post dated 11.05.2021, 29.10.2021 and 23.11.2021 along with affidavit of the assessee duly attested by notary with a request to condone the delay. It was submitted that the Ld. CIT(A]- 2 43 New Delhi vide letter dated 15.10.2020 addressed to the Tribunal has mentioned that appellate order dated 04.09.2018 was uploaded on the ITBA portal on same day the order was pronounced and dispatched to assessee on 11.10.2018. It was submitted that the Ld. CIT(A) has not mentioned the address, where the order was dispatched, whether at address as mentioned in Form 35, which is '3628, 33 rd street' Edmonton AB, CANADA or at any other place. It was submitted that as per Para 4.1 page 3 of the appellate order, it has been stated that “the case was fixed for hearing on 06.07.2018, no one appeared on behalf of the appellant. The case was again fixed for hearing on 25.07.2018 and was given a final opportunity. There was no compliance in both cases from the appellant's side. The notices sent by e-mail as well as speed post". It was submitted that as per copy of notice dated 27.06.2018 fixed for hearing on 06.07.2018, it is addressed to Gurmej Singh Johal S/o Bawa Singh B-5/2 ITI Colony, Chandigarh Road, Nawanshahr and not at address as mentioned on Form 35 (copy of notice placed at page 4 of paper book). Similarly as per copy downloaded from e-proceedings ITBA portal dated 13.3.2020, there is no mention of 2 nd notice dated 25.07.2018, (as claimed by Ld. CIT(A]-43 in order). The response date is no where mentioned (copy as downloaded is placed at page 5 of paper book). It was submitted that as per ITBA e-proceeding for first appeal, there is no mention of proceeding closure date. Still today, the appeal order cannot be downloaded from the ITBA portal (page 6 of paper book). The assessee through his AR has requested the DCIT (International Taxation Circle) Chandigarh vide letter dated 28.03.2019 and to Ld. CIT (A)-43 vide speed post and e-mail dated 31.08.2020 to supply the copies of order and other relevant material (placed on page 8-10 of paper book) but these have not been supplied till today. 4. It was submitted that due to non-service of notices, non-supply of copy of appeal order, COVID-19 Pandemic & complete lockdown, assessee being NRI and not present in India, the filing of appeal got delayed and it was prayed that 3 keeping in view the above submissions and affidavit filed by the appellant as the demand is very high i.e. 40,69,920/- and CIT (A) has not decided appeal on merit, the delay may be condoned in interest of substantial justice and matter may be heard on merits. 5. Per contra, the Ld. DR referred to the report received from the office of the Ld. CIT(A)-43 and it was submitted that the assessment in this case was completed on 22.12.2017 and on perusal of Form 35 filed by the assessee, it is quite evident that there was no delay in filing appeal before CIT(A)-43, Delhi i.e. the assessee had duly received the assessment order and demand notice. Though assessee had mentioned his Canada address while filing appeal but at the same time, the mobile number mentioned in Form 35 is an Indian mobile number and [e-mail] was the email mentioned for communication. 6. It was submitted that the assessee has requested for condonation of delay of 622 days to get his appeal adjudicated before the Tribunal and sequence wise comments in response to the appellant’s contentions are hereby submitted. It was submitted that the appellant's AR has firstly submitted that "the Ld. CIT(A) has not mentioned the address, where the order has been dispatched, whether at address as mentioned In Form 35, which is '3628, 33rd street' Edmonton AB, Canada or at any other place". In this regard, it is submitted that in all generality, whenever any notice/order is uploaded on ITBA portal, the assessee gets a dual intimation on the mobile number and on email id registered on income tax e-filing portal. Therefore, the arguments put forth by the AR of the assessee do not make much of sense and it merely shows non- cooperative nature of the assessee. 7. It was further submitted that as per point 2 of the request for condonation of delay, the assessee has contended that the notice dated 27.06.2018 which was fixed for hearing on 06.07.2018 was addressed to "Gurmej Singh Johal S/o Bawa Singh 8-5/2 ITI Colony, Chandigarh Road, Nawanshahr and not at address 4 as mentioned on Form 35" and with regard to another notice of hearing the appellant has contended that "there is no mention of 2 nd notice dated 25.07.2018,(as claimed by Ld. CIT(A)43 in order). The response date is nowhere mentioned." In this regard it is submitted that notice dated 27.06.2018 was well communicated to the assessee through e-proceedings portal as the assessee has nowhere mentioned that it was not received by him. Also, with regard to 2 nd hearing notice, it is clearly mentioned in the last line of Para 4.1 page 3 of the CIT(A) order which is quoted by the AR of the assessee as well that 'The notices sent by e-mail as well as speed post" It is worthwhile to mention that the 2 nd notice was served upon the assessee through the email provided in the Form no. 35 i.e. [e-mail]. It was submitted that the final order was passed on 04.09.2018 and here it becomes very indispensible to notice that the assessee remained non-compliant even after the 2 nd notice was well served upon him and through the email provided by himself in Form no. 35. 8. The assessee has further contended that he has not been able to download the CIT(A) order till today from the ITBA Portal. It also appears to be an inappropriate contention because the order was duly uploaded on ITBA well within stipulated time and the assessee gets intimated automatically on his registered email with the Income Tax Department. Moreover, the assessee has himself contradicted his contention with regard to delay in filing the appeal before the Tribunal as he has mentioned that "the assessee through his AR has requested the DCIT, International Taxation, Circle-Chandigarh vide letter dated 28.03.2019 and to the Ld. CTT(A)-43 vide speed post and e-mail dated 31.08.2020 to supply the copies of order and other relevant material". It is very pertinent to mention here that the assessee was well aware of the CIT(A)'s order and therefore the delay of 622 days in filing appeal appears without any adequate reason. Also, the Covid -19 and its aftermath happened after almost a year and half after passing of CIT(A) 's order and this ground also falls short of justifying assessee's contentions. 5 9. It was accordingly submitted that the assessment order was passed on 22.12.2017, the order of the CIT(A) was passed on 04.09.2018, thereafter, the assessee made a request to the DCIT, International Taxation, Circle-Chandigarh and CIT(A)-43, Delhi vide letters dated 28.03.2019 & 29.03.2018 respectively but it was rejected by the CIT(A)-43, Delhi, the assessee has claimed that a request was made again to the Ld. CIT(A)-43 vide speed post and e-mail dated 31.08.2020 to supply the copies of order and other relevant material and the assessee filed appeal before Hon'ble ITAT after a delay of 622 days from the passing of order by CIT(A) on 04.09.2018. In light of the same, it was submitted that the delay of 622 days in filing of appeal before the Tribunal seems without any satisfactory reason and in view of the substantial delay in filing the appeal, the application for condonation of delay be rejected and the appeal of the assessee deserve to be dismissed in limine. 10. We have heard the rival contentions and purused the material available on record. The appellate order was passed by the ld CIT(A) on 4/09/2018 and the appeal against the said order has been filed with the Registry on 2/09/2020 initially with the Amritsar Benches which was later on transferred to the Chandigarh Benches. There is no dispute that there has been a delay in filing the present appeal and the period of delay as admitted by the assessee comes to 622 days. However, the period of delay comprises of pre-covid 19 and covid 19 pandemic period. For the period of covid 19 pandemic, there is no dispute that the said period needs to be excluded for the purposes of limitation in view of decision of the Hon’ble Supreme Court. For the period pre-covid 19 pandemic, what is relevant to examine is whether there was sufficient cause on the part of the assessee in not presenting the present appeal within the prescribed time. The explanation of the assessee therefore becomes relevant to determine whether the same reflects sufficient cause on his part in not presenting the present appeal within the prescribed time. In this regard, we refer 6 to the affidavit which has been filed by the assessee and the contents thereof read as under: GURMET SINGH JOHAL S/O BAWA SINGH R/o 3628, 33 rd STREET, EDMONTON AB. CANADA do hereby solemnly and sincerely declare and affirm as under: 1. That I am a NRI, Canadian Citizen residing there since 1972. Holding valid passport No. HG858388. 2. That I was not in India at least from 02.03.2017 to 03.09.2017, 14.12.2017 to 04.11.2018, 20.03.2019 to 06.11.2019 and 07.05.2020 to 21.11.2021, neither I was having any authorized agent in India to receive notices on my behalf. 3. That as per Form 35 filed with CIT(A), 43, New Delhi. Neither I have received notice of hearing on 06.07.2018, 25.07.2018 nor I have received appellate order dated 04.09.2018 at address mentioned therein Form 35. I was not present in India on these dates. 4. That I requested CIT(A), 43 for a copy of order on 29.08.2020 but till today I have not received the same. 5. That appeal is filed late by 622 days only after knowing from the tax arrear demand letter from AO(International Taxation), Chandigarh. 6. As the Demand is very high i.e. Rs. 40,69,920/- and CIT(A) has nto decided appeal on merit, you are requested to condone the delay in filing appeal in the interest of natural justice as it was beyond my control. Sd/- Gurmej Singh Johal Deponent 11. We therefore find that undisputedly, the assessee was not physically present in India when the impugned order was passed by the ld CIT(A) on 4/09/2018. Regarding communication of the said order to the assessee, the Revenue has submitted that the order was uploaded on the IT portal on the same date when the order was passed and an intimation was also sent on the mobile number and email id provided by the assessee whereas the contention of the assessee is that the order so uploaded on IT portal is not accessible even today, however, there is no word whether the assessee received any intimation on the mobile number and email id provided at the time of filing of the appeal. It is equally relevant to note that subsequently, the assessee was in receipt of letter no. 7320 dated 30/01/2019 from the office of DCIT, International Tax, Chandigarh whereby he was informed that his appeal has been dismissed by the ld CIT(A) vide order dated 04/09/2018 and the assessee was directed to 7 deposit the outstanding taxes. The assessee on receipt of the said letter has then reached out to the office of DCIT, International Tax, Chandigarh through his ld AR vide letter dated 25/03/2019 requesting for a copy of the appellate order passed by the ld CIT(A). Separately, the assessee has also reached out to the office of the ld CIT(A) vide his letter dated 29/03/2019 requesting for a copy of the appellate order passed by the ld CIT(A). The fact that the assessee has reached out to the AO and the ld CIT(A) vide the aforesaid two communications have not been disputed by the Revenue. And thereafter, due to covid-19 pandemic, there was lockdown and as soon as the assessee was in receipt of the order so passed by the ld CIT(A), he has taken steps and filed the present appeal. We therefore find that though the assessee has taken excuse of not physically present in the Country at the time of passing of the order and the order not being communicated physically to him, the fact remains that the order was uploaded on the IT portal though it is also a fact that the assessee was not able to access and download the same even today, which may be due to some technical glitch, a fact not disputed by the Revenue. At the same time, as soon as the assessee was ceased of the communication of dismissal of his appeal and in receipt of tax recovery notice from the DCIT, he took steps in reaching out to the DCIT as well as the ld CIT(A) and has filed the present appeal. We therefore find that though there is a delay, there is however no culpable negligence or malafide on the part of the assessee in delayed filing of the present appeal. There exists sufficient and reasonable cause for condoning the delay in filing the present appeal and as held by the Hon’ble Supreme Court, where substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserved to be preferred and the assessee deserve to be heard on merits of the case. Therefore, in exercise of powers under section 253(5) of the Act, we hereby condone the delay in filing the present appeal as we are satisfied that there was sufficient cause for not 8 presenting the appeal within the prescribed time and the appeal is hereby admitted for adjudication. 12. It is further noted that the appeal of the assessee has been decided ex- parte qua the assessee by the ld CIT(A) and the appeal of the assessee has been dismissed at the threshold on account of non-prosecution and no finding has been recorded on merits of the case. The ld CIT(A) has stated that there has been non-compliance on part of the assessee in terms of not responding to the two notices which were sent through email and speed post. The assessee has again disputed the same and has submitted that he was not physically present in the Country right from the date of filing of the appeal and notices have not been served on him. We find that the assessee, even though not physically present in the Country, should be more vigilant and respond to the electronic communication otherwise the whole purpose of bringing in the electronic communication which is to bring faster and transparent communication would be defeated. At the same time, we find that the ld CIT(A) has not decided the appeal on merits of the case and we don’t have the benefit of his findings. It is essential that being the appellate authority, the ld CIT(A) even where the assessee has not participated or could not participate in the appellate proceedings, should endeavour to decide the appeal considering the material available on record. Therefore, considering the entirety of facts and circumstances of the case, we are of the considered view that the assessee couldn’t be punished unheard as the same would be against the canons of natural justice and therefore, deserve one more opportunity to put forth his submissions and be heard on merits of the case. Therefore, in the interest of substantial justice and fair play, we set-aside the matter to the file of the ld CIT(A) to decide the matter a fresh as per law after providing reasonable opportunity to the assessee and to ensure in timely completion of the proceedings preferably within two months of receipt of this order. 9 13. It goes without saying that the assessee would not abuse this opportunity and shall ensure that he and/or authorized representative on his behalf attend to the proceedings and respond to the communications from the office of the ld CIT(A) and provide necessary information/documentation as called for and/or as advised in support in his submissions. 14. In the result, the appeal of the assessee is allowed for statistical purposes. 15. The Registry is directed to serve a copy of this order to the assessee at the email address provided at the time of filing of the appeal and also a copy of the order be sent to the authorized representative, Shri Rajinder Kumar Chopra, C.A whose authorization is available on record. (Order pronounced in the open Court on 20/03/2023) Sd/- Sd/- स ु धांश ु ीवा तव #व$म &संह यादव (SUDHANSHU SRIVASTAVA) (VIKRAM SINGH YADAV) या!यक सद य / JUDICIAL MEMBER लेखा सद य/ ACCOUNTANT MEMBER AG Date: 20/03/2023 ( + ! , - . - Copy of the order forwarded to : 1. The Appellant 2. The Respondent 3. $ / CIT 4. $ / 0 1 The CIT(A) 5. - 2 ग 4 5 & 4 5 678 ग9 DR, ITAT, CHANDIGARH 6. ग 8 : % Guard File ( + $ By order, ; # Assistant Registrar