Oswald Pereira, Bangalore V. Income Tax Officer, Ward-5(3)(1), Bangalore

ITA 689/BANG/2022

AI Insights

This case involves an appeal by Shri Oswal Pereira against an ex-parte order passed by the NFAC, Delhi, for the Assessment Year 2016-17. The appeal was initially delayed due to the assessee's unawareness of the NFAC's order, which he discovered only upon receiving a show cause notice for penalty under section 271(1)(c) of the Income Tax Act, 1961. The ITAT found that the assessee was not properly notified of the NFAC's order and had previously submitted relevant documents and written submissions that were not considered by the NFAC. Consequently, the ITAT condoned the delay in filing the appeal and remanded the case for a fresh decision on the merits, emphasizing the need to consider the documentary evidence substantiating the agricultural income claimed by the assessee.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 299841 (ITAT-BANGALORE)
• Duration Of Justice: 5 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 30-01-2023
• Assessment Year: 2016-2017
• Appeal Filed On: 07-08-2022
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 271(1)(c); 250; 274

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “SMC -A” BENCH : BANGALORE BEFORE SHRI N. V. VASUDEVAN, VICE PRESIDENT ITA No.689/Bang/2022 Assessment Year : 2016-17 Shri. Oswal Pereira, No. 404 Sterling Apartments, Papanna Street, St. Marks Road, Bengaluru – 560 001, Karnataka. PAN : AHHPP 7200 K Vs.ITO, Ward – 5(3)(1), Bengaluru. APPELLANTRESPONDENT Assessee by:Shri. H. Guruswamy, ITP Revenue by :Shri. Ganesh R. Ghale,Standing Counsel Date of hearing:31.01.2023 Date of Pronouncement:02.02.2023 O R D E R This is an appeal by the assessee against the order dated 30.07.2021 of NFAC, Delhi, relating to Assessment Year 2016-17. 2. There is a delay of 69 days in filing the appeal by the assessee. It has been submitted in an application for condonation of delay that the passing of the ex-parte order by the NFAC was not known to the assessee and he came to know about the same only when he received show cause notice under section 274 of the Income Tax Act, 1961 (hereinafter called ‘the Act’), dated 01.08.2022, for imposing penalty under section 271(1)(c) of the Act. The delay in filing the appeal is after excluding the period during which the Covid-19 pandemic was prevalent and the period which has to be excluded owing to the decision of the Hon’ble Supreme Court on the issue of excluding period of delay during Covid period for the purpose ITA No.689/Bang/2022 Page 2 of 3 of Limitation. According to the assessee, after the receipt of the show cause notice dated 01.08.2022, he came to know about the order passed by the NFAC. The appeal was filed on 17.08.2022 immediately after receipt of show cause notice dated 01.08.2022. 3. I have considered the submissions and I find that the order passed by the First Appellate Authority is an ex-parte order. The appeal before the first appellate authority was filed by the assessee on 15.01.2019. Notice of hearing was issued on 10.06.2019 by the jurisdictional CIT(A) under section 250 of the Act. Thereafter the case was transferred to NFAC. NFAC issued notices on 24.12.2020 and 13.07.2021. The order of the First Appellate Authority does not mention anything about service of these notices. Besides the above, I find that there has been substantial lapse of time between the filing of the appeal by the assessee and the date of two notices issued by the NFAC, which is nearly two years. In the circumstances, I am inclined to hold that the assessee is not aware of the passing of the ex-parte order by the First Appellate Authority. In this regard, I also find that pursuant to the first notice dated 10.06.2019 issued by the jurisdictional CIT(A) under section 250 of the Act prior to the transfer of the case to NFAC, the assessee has filed the written submissions with supporting documents on 28.06.2019. The same has not been considered by the NFAC. In these circumstances, I condone the delay in filing the appeal by the assessee. 4. I am of the view that the documentary evidence to substantiate the agricultural income earned by the assessee has also been filed by the assessee along with the written submissions filed before the First Appellate ITA No.689/Bang/2022 Page 3 of 3 Authority and since these documents are required to be considered for deciding the quantum of agricultural income, I set aside the order of the NFAC and remand the case to the First Appellate Authority for a decision on merits after affording due opportunity of being heard to the assessee and considering other evidence brought on record by the Assessee. 5. In the result, appeal of the assessee is treated as allowed for statistical purposes. Pronounced in the open court on the date mentioned on the caption page. Sd/- (CHANDRA POOJARI) Sd/- (N. V. VASUDEVAN) Accountant Member Vice President Bangalore, Dated: 02.02.2023. /NS/* Copy to: 1.Appellants2.Respondent 3.CIT4.CIT(A) 5.DR 6. Guard file By order Assistant Registrar, ITAT, Bangalore.