Ektaben Rinambhai Shah, Surat V. Income Tax Officer - Ward 2(2)(5), Surat

ITA 65/SRT/2024

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 8071 (ITAT-SURAT)
• Duration Of Justice: 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-03-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 25-03-2024
• Assessment Year: 2008-2009
• Appeal Filed On: 18-01-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Condonation of delay; Set aside
• Section: 143(3); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM आयकर अपील सं./ITA No.65/SRT/2024 Assessment Year: (2008-09) (Hybrid Hearing) Ektaben Rinambhai Shah, B/1, Arpan Apartment, Opp. Man Mandir, Babuniwad Lane, Nanpura, Timliwad, Surat – 395001, Gujarat. Vs. The ITO, Ward – 2(2)(5), Surat èथायीलेखासं./जीआइआरसं./PAN/GIR No.: ARJPS3974R (Appellant) (Respondent) Appellant by Shri Mehul Shah, CA Respondent by Shri Vinod Kumar, Sr. DR Date of Hearing 26/03/2024 Date of Pronouncement 28/03/2024 आदेश / O R D E R PER DR. A. L. SAINI, AM: Captioned appeal filed by the assessee, pertaining to Assessment Year (AY) 2008-09, is directed against the order passed by the Learned Commissioner of Income Tax (Appeals), [in short “the ld. CIT(A)”], National Faceless Appeal Centre (in short ‘the NFAC’), Delhi, dated 16.05.2023, which in turn arises out of an assessment order passed by the Assessing Officer u/s 143(3) r.w.s. 254 of the Income Tax Act, 1961 (hereinafter referred to as “the Act”), dated 14.12.2018. 2. The appeal filed by the assessee for the assessment year (AY).2008-09 is barred by limitation by 188 days. The assessee moved a petition, requesting the Bench to condone the delay. The contents of petition for condonation of delay are as follows: “1) That I beg to prefer this application for condonation of delay in relating to appeal filed against the order of the Ld. CIT(A)(NFAC) passed on Page | 2 ITA.65/SRT/2024/AY.2008-09 Ektaben Rinambhai Shah 16.05.2023 which is received on e-mail address [e-mail]. There is a delay of 188 days in filing the appeal before Honourable Tribunal against the order passed by the Ld. CIT(A)(NFAC) passed on 16.05.2023. 2) That it is to state that I do not have any email ID and hence the email ID of my husband was used for Income Tax filing purpose. The appeal was filed in Form-35 on 18.01.2019 and no hearing notice u/s 250 was issued for a period of more than 2 years and then the COVID pandemic occurred. Afterwards, the said email ID of my husband [e-mail] was not operational as he created a new email ID in the year 2020 viz. [e-mail]. Subsequently, the appeal was migrated to the Notational Faceless Appeals Centre and I did not have any knowledge of such scheme and the noticesd for hearing and the subsequent ex-parte order were sent to the old e-mail address [e-mail]. The delay in filing of the appeal before the Honourable Tribunal was due to lack of knowledge of the fact of dismissal of appeal by the Ld. CIT(A)(NFAC) as the order was served on the old e-mail address [e-mail] which was no longer operational. 3) That the Chartered Accountant opened the Income Tax Department portal on 29.12.2023 for filing the income tax return for AY.2023-24. It was discovered that the ex-parte order was passed by the Ld. CIT(A)(NFAC) and the Chartered Accountant advised me to file second appeal before the Honourable Tribunal immediately and hence the appeal was filed in Form- 36 on 06.01.2024. 4) That therefore, in the facts and circumstances of the case, I pray to this Honourable Income Tax Appellate Tribunal: a. To condone the delay of 188 days in filing the appeal in ITA No.65/SRT/2024 and to extend the time for filing the same inclusive and upto the date of filing the appeal; b. Also, that the case is a meritorious one and requires consideration to grant such other and further relief as deemed fit by Honourable Income Tax Appellate Tribunal.” 3. The Ld. Counsel for the assessee, argued that based on the reasons mentioned in the petition for condonation of delay, the delay of 188 days may be condoned in the interest of justice. 4. On the other hand, learned Senior Departmental Representative (ld. Sr. DR) for the Revenue strongly objected the petition for condonation of delay and stated that delay should not be condoned on such flimsy grounds. The assessee has failed to explain the sufficient Page | 3 ITA.65/SRT/2024/AY.2008-09 Ektaben Rinambhai Shah cause in the petition for condonation of delay, therefore the assessee’s appeal may be dismissed. 5. We have heard both the parties on this preliminary issue. We note that old email ID of assessee`s husband [e-mail] was not operational as he created a new email ID in the year 2020 viz. [e-mail]. Subsequently, the appeal of the assessee was migrated to the Notational Faceless Appeals Centre and assessee did not have any knowledge of such scheme and the notices for hearing were sent on old e-mail address [e-mail]. Even the subsequent ex-parte orders were sent to the old e-mail address [e-mail]. Thus, we note that the delay in filing of the appeal before the Tribunal was due to lack of knowledge of the fact of dismissal of appeal by the Ld. CIT(A)(NFAC), as the order was served on the old e-mail address [e-mail] ,which was no longer operational. The Department has also not intimated the assessee that her case has been migrated to the NFAC. After migrating the case to the NFAC, the assessee did not receive any notices on the e-mail address, provided by the assessee and therefore the ld. CIT(A) has passed the ex parte order. This entire process caused the delay. In considering the condonation petition, it is to be remembered that statutes conferring a right of appeal which must be construed in furtherance of justice and the provision limiting the time for bringing an appeal must be liberally interpreted, so that the party pursuing such remedy allowed to him by the law is not non-suited on mere technicalities. We note that the reasons given in the affidavit for condonation of delay were convincing and these reasons would constitute reasonable and sufficient cause for the delay in filing this Page | 4 ITA.65/SRT/2024/AY.2008-09 Ektaben Rinambhai Shah appeal. We, therefore, condone the delay and admit the appeal for hearing. 6. On merit, the Ld. Counsel for the assessee submitted that order passed by the ld. CIT(A) is an ex parte order, non-speaking order without considering the assessee’s submission, therefore one more opportunity should be given to the assessee to plead his case before the lower authorities. The Ld. Counsel also state that during the assessment stage also, there was no full compliance, therefore matter may be remitted back to the file of Assessing Officer for fresh adjudication. 7. On the other hand, on merit, Learned DR for the Revenue, argued that assessee did not appear before ld CIT(A) during the appellate proceedings despite of issuance of several notices for hearings, therefore, second inning should not be given to the assessee and hence appeal of the assessee may be dismissed. 8. We have heard both the parties. Considering the above facts, we note that assessee could not plead his case successfully before the ld. CIT(A). We also note that Ld. CIT(A) has not passed the order as per the mandate of provisions of section 250(6) of the Act. We also note that assessee did not submit entire documents and evidences before the Assessing Officer, therefore, assessing officer did not examine the entire facts of the assessee`s case. Hence, we are of the view that one more opportunity should be given to the assessee to plead his case before the Assessing Officer. We note that it is settled law that principles of natural justice and fair play require that the affected party is granted sufficient opportunity of being heard to contest his case. Therefore, without delving much deeper into the merits of the case, in the interest of justice, we restore the matter back to the file of Assessing Page | 5 ITA.65/SRT/2024/AY.2008-09 Ektaben Rinambhai Shah Officer for de novo adjudication and pass a speaking order after affording sufficient opportunity of being heard to the assessee, who in turn, is also directed to contest his stand forthwith. Therefore, we deem it fit and proper to set aside the order of the ld. CIT(A) and remit the matter back to the file of the Assessing Officer to adjudicate the issue afresh on merits. For statistical purposes, the appeal of the assessee is treated as allowed. 9. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order is pronounced on 28/03/2024 in the open court. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER lwjr /Surat Ǒदनांक/ Date: 28/03/2024 SAMANTA Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat