Raj Kumar vs Assessing Officer

PER AMITABH SHUKLA, AM

These two appeals filed by the Assessee are directed against the order of Ld. Commissioner of Income Tax (Appeals)/NFAC, New Delhi, both dated 18.12.2025 arising out of assessment order dated 26.03.2022 passed under section u/s 143(3) r.w.s. 144 r.w.s. 144B and penalty order dated 23.09.2022 passed u/s 272A(1)(d) of the Act for the Assessment Year 2017-18. The word ‘Act’ herein this order would mean Income Tax Act, 1961.

Both appeals are of the same assessee contesting the quantum addition as well as consequent imposition of penalty and hence for the purposes of convenience were heard together and are being adjudicated by this common order.

At the outset the Ld. Counsel for the assessee Shri Ankit Agarwal, CA, informed that both the lower authorities being the ld. AO as well as the Ld. First Appellate Authority have passed an ex-parte order. The ld. CIT(A) has thus confirmed the order dated 26.03.2022 passed under section u/s 143(3) r.w.s. 144 r.w.s. 144B and penalty order dated 23.09.2022 and that the appeals were dismissed for being filed late without any justified grounds. The ld. CIT(A) had dismissed the appeals in limine without condoning the delay committed by the assessee in filing of the appeals. It was pleaded that the assessee had committed delay of 209 days and 05 days for which it had justified grounds. Before the Ld. CIT(A) the assessee had tried to justify the delay also on account of that the assessment order is passed dated 26.03.2022 online on income tax portal but no communication was received by the assessee over mail or message. The ld. Counsel for the assessee further stated that the assessee came to know about the order on 01.10.2022 when penalty order and other documents were received by him by speed post. The ld. Counsel also indicated that part of the delay was attributable to contemporary covid pandemic. It was argued that the CIT(A) has not given any decision on the merits of the case. The Ld. Counsel accordingly submitted the matter may be restored to Ld. CIT(A) for re-adjudication on its merits by condoning the delay and that it shall make full compliance to the notices of Ld. CIT(A).

The Ld. DR while relying upon the order of the lower authorities did not tender any serious objection to the proposal. It is also not the case of the Revenue that the impugned order of ld. CIT(A) is not ex-parte.

We have heard the rival submissions in the light of materials available on records. It is trite law that no litigant benefits by non-prosecution of its case. We find sufficient force in the pleadings of the assessee as to why it could not file its appeal in time, before the Ld. First Appellate Authority. Coming to the order of Ld. First Appellate Authority, we have also noted that apart from merely harping on the issue of delayed filing by the assessee the Ld. CIT(A) has not touched upon merits of the case. We are conscious of the fact that no appellant benefits by non-prosecution of its case. Be that as it may be, we are of the view that the matter deserves to be remitted back to the ld. AO for re-adjudication de novo. Accordingly, we set-aside the order of the lower authorities and remit the matter back to the file of the ld. AO for assessment de novo in accordance with law and by way of passing a speaking order. The Ld. AO shall give opportunities of being heard to the assessee and it shall be bounden upon the assessee to comply with the notices issued by the Ld. AO Any non-compliance on the part of the assessee can be adversely viewed. The decision to remit it back to the Ld. AO is taken in view of the fact that an Assessing Officer is the fulcrum of assessment proceedings. He possess the first right and responsibilities to examine facts of a case before arriving at his decision qua determination of taxable income in a particular case. We have noted with respectful deference the decision of Hon’ble Apex Court in the case of TIN box 249 ITR 216 on the subject matter. Accordingly, the appeal of the assessee bearing ITA No.1675/Del/2026 is allowed for statistical purposes

As the appeal of the assessee bearing ITA No.1675/Del/2026 has been remitted back to the AO for rea-djudication de novo, the penalty order contested by the assessee through ITA No.1676/Del/2026 has become in fructuous. The same is also remitted back to the ld. AO for reconsideration in the light of his decision to be taken in ITA No.1675/Del/2026. Accordingly, the appeal of the assessee bearing ITA No.1676/Del/2026 is also allowed for statistical purposes.

Finally, both the appeals of the assessee are allowed for statistical purposes.