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Judgment
Per Kavitha Rajagopal, JM:
This is an appeal filed by the assessee challenging the order passed by the Ld. Commissioner of Income Tax (Appeals) [‘the Ld. CIT(A)’, for short] passed under Section 250 of the Income Tax Act, 1961 ('the Act' for short) for Assessment Year (‘AY’, for short) 2018-19.
The assessee has raised the following grounds of appeal:-
“1.1That on the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in dismissing the appeal in limine without condoning the delay of 917 days, thereby denying the appellant an opportunity of being heard on merits, which action is arbitrary, unjust and contrary to settled principles of law.
1.2That the Ld. CIT(A) has failed to appreciate that the delay in filing the appeal was due to bona fide and reasonable cause, including nonservice of assessment order and lack of knowledge of proceedings, and therefore, the delay deserved to be condoned in the interest of substantial justice.
1.3That in the absence of service of notice of hearing issued by Ld. CIT(A), the impugned appellate order has been passed in contravention of principles of natural justice and same is thus bad in law.
2.1That on the facts and in the circumstances of the case, the assessment order passed u/s 147 r.w.s. 144 is bad in law, void ab initio and liable to be quashed.
2.2That the notice u/s 148A(b) being invalid and contrary to the provisions of law, the reassessment proceedings based on such notice are illegal and void-ab-initio.
2.3That in the absence of any case of income escaping assessment in terms of section 147 of the Act, the assumption of jurisdiction u/s 147/148 is invalid and not sustainable.
3.That the approval granted u/s 151 for initiation of reassessment proceedings u/s 147 being mechanical and without application of mind, the notice u/s 148 is invalid and bad in law.
4.1That on the facts and in law, the AO has erred in making addition of Rs.87,00,000/- by treating the entire sale consideration of immovable property as long-term capital gain, which is arbitrary, excessive and contrary to provisions of law.
4.2That the AO has grossly erred in computing capital gains by adopting cost of acquisition at Nil, without any basis and without making necessary inquiries, rendering the addition unsustainable.
4.3That the AO has failed to appreciate that the appellant is eligible for exemption u/s 54 in respect of investment made in purchase of residential house, and therefore, no taxable capital gain arises.
4.4That the assessment having been completed without proper opportunity, the same is in gross contravention of principles of natural justice and thus not sustainable.
5.That the orders passed by lower authorities are not sustainable on facts and same are bad in law.
6.That the appellant craves leave to add, alter, amend or withdraw any of the above grounds at the time of hearing.”
Brief facts are that the assessee is an individual and had not filed his return of income for the year under consideration. The assessee’s case was reopened based on the information as per Risk Management Strategy formulated by the CBDT through ITBA software under the head ‘Non Filing of Returns (NMS) cases’ pertaining to information that the assessee has sold immovable property for Rs.87 lakhs during the year under consideration and had earned bank interest amounting to Rs.2,78,051/- which income had escaped assessment. The Ld. AO issued notice u/s 148 of the Act, in response to which the assessee failed to file his return of income. The AO issued notice u/s 142(1) of the Act which was also not complied with by the assessee. The Ld. AO, then, proceeded to pass the assessment order u/s 144 of the Act being the best judgement assessment and vide order dated 24.02.2023 passed u/s 147 r.w.s. 144 r.w.s. 144B of the Act, determined the total income at Rs.89,78,051/- after making certain additions. Aggrieved, the assessee was in appeal before the first appellate authority, who, vide order dated 24.02.2026, dismissed the appeal filed by the assessee by not condoning the delay of 917 days in filing the first appeal before the Ld.CIT(A), beyond the prescribed period of limitation, stating that the assessee has failed to substantiate that there was ‘sufficient cause’ for the said delay. The Ld.CIT(A) also dismissed the appeal on the ground of non-prosecution. Aggrieved, the assessee is in appeal before us challenging the impugned order of the Ld.CIT(A) on the above-mentioned grounds.
We have heard the rival submissions and perused the material available on record. It is observed that the assessee has been non-compliant before the Ld. AO as well as before the Ld.CIT(A) and, further, the assessee has also failed to substantiate the delay in filing the appeal before the first appellate authority. Before us, the Ld.AR for the assessee furnished an affidavit stating that the delay in filing the first appeal was neither deliberate nor intentional and the assessee had bona fide reasons for filing the first appellate beyond the period of limitation. The ld. AR contended that the e-mail address and the mobile number linked with the assessee’s income tax account was not in the direct control of the assessee and that the communication issued by the Department were not brought to the assessee’s knowledge. The Ld. AR further contended that the assessee also did not receive the physical copy of the assessment order and only at the time of raising of demand the assessee was aware of assessment order and the consequent demand raised against the assessee. The Ld. AR for the assessee prayed that the delay in filing the first appeal be condoned and the assessee be given one more opportunity to present his case before the lower authorities as the assessee has got a good case on the merits.
The Ld. DR, on the other hand, vehemently opposed for condoning the delay and for providing the assessee with another opportunity for the reason that the assessee has been non-compliant during the proceedings before the lower authorities.
In the above facts of the case, we deem it fit to extend the assessee with one more opportunity to present his case before the Ld.AO, by adhering to the principles of natural justice and in the interest of justice dispensation where the substantial law ought to prevail more than the procedural lapses, which proposition has been reiterated by various rulings of the Hon’ble Apex Court and High Courts. As the assessee has not complied before the Ld. AO during the assessment proceedings, we remand all these issues back to the file of the Ld. AO for passing a de novo assessment order on the basis of the submissions of the assessee on the merits and in accordance with law. The assessee is directed to strictly comply with the proceedings before the Ld. AO without any undue delay from his side. Hence, the grounds of appeal raised by the assessee are hereby allowed for statistical purpose.
In the result, the appeal filed by the assessee is hereby allowed for statistical purpose.