Yogeshwar vs ITO, Ward 2(2)(1)

PER ANUBHAV SHARMA, JM:

This appeal is preferred by the assessee against the order dated 23.10.2025 of the Ld. National Faceless Appeal Centre (NFAC), Delhi (hereinafter referred as Ld. First Appellate Authority or in short Ld. ‘FAA’) in DIN & Order No.: ITBA/NFAC/S/250/2025-26/1081946743(1) arising out of the order dated 05.11.2019 u/s 144/147 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) passed by the ITO, Ward- 2(2)(1) Ghaziabad for AY: 2012-13.

On hearing both sides we find that appeal of the assessee was dismissed by NFAC on the basis of delay of 405 days. We find that NFAC observes that there was delay of 405 days, however, assessee has stated in Form 35 that there was no delay for the reason that the assessee claims assessment order was served on 22.12.2020 while the assessment order is dated 5.11.2019. Assessee’s assertion of service on 22.12.2020 was not found to be supported by any evidence and thus considering assessee’s response in Form 35 to be a deliberate misrepresentation, the appeal was dismissed on ground of delay of 405 days in filing the same.

We are of the considered view that NFAC being a quasi-judicial authority, if intended to dismiss the appeal in limine, as barred by limitation and discrediting the averments of the assessee in Form 35, then assessee should have been given an opportunity to either justify the assertion of service of the assessment order on 22.12.2020 or to have been given opportunity to file application for condonation of delay specially when the appeal is acknowledged for being admitted for hearing on merits while issuing notice to the assessee.

In the light of aforesaid circumstances we allow the appeal of the assessee for statistical purposes and restore the issue on merits as well as question of law to the files of ld. CIT(A) to give assessee an opportunity of hearing on the question of delay or allow the assessee an opportunity to file application for condonation of delay. In the aforesaid terms the appeal is allowed for statistical purpose.