The court emphasized the violation of natural justice and ruled that appeals cannot be dismissed for non-prosecution, citing procedural law.

ORDER

PER: RATHOD KAMLESH JAYANTBHAI, AM

This appeal is filed by the assessee aggrieved from the order of the National Faceless Appeal Centre, Delhi [for short “CIT(A)/NFAC”] dated 09.01.2024 for the assessment year 2017- 18, which in turn arise from the order dated 23.12.2019 passed under section 143(3) of the Income Tax Act,1961 [ for short “Act” ] by the ITO, Ward-7(1), Jaipur [ for short AO].

2.1 At the outset of hearing, the Bench observed that there is delay of 158 days in filing of the appeal by the assessee for which the ld. AR of the assessee filed application for condonation of delay with following prayers and the assessee to this effect also filed an affidavit :-

“There has been a delay of 158 days in filing of appeal before the Hon'ble Tribunal, which has been on account of non-service of the appellate order on the assessee. The assessee has had only primary education and lives in a remote village. He had not received the order of CIT(A) by post. He came to know of the appellate order only when he visited the office of ITO, Ward-7(1), Jaipur, on 12.08.2024. As a matter of fact, the assessee was called by the staff of ITO, Ward-7(1), Jaipur, asking him to deposit the outstanding demand. The assessee in order to ascertain the demand came to Income Tax Department, Jaipur, where he came to know that order u/s 250 has been passed in his case in January, 2024. he was advised to file appeal before ITAT. Being aggrieved by the said order he requested the undersigned to file the appeal. The undersigned logged into the assessee's account and downloaded the appellate order, after obtaining the efiling password from his ex-AR, and filed the appeal. The assessee's affidavit detailing the aforesaid facts may kindly be placed before the Hon'ble Appellate Tribunal for condonation of the delay in submission of the appeal.”

2.2 The ld. AR of the assessee vehemently argued that reasons for delay and dismissal of appeal are same as the assessee was not served the notices as required and even the order was not served upon the assessee and the assessee came to know when the recovery proceeding the assessee was called upon and that being the fact resulted into a delay of filling the present appeal by 158 days. Ld. AR considering that fact and relying on the decision of the apex court in the case of Collector, Land & Acquisition Vs. Mst. Katiji& Others 167 ITR 471(SC) submitted that the delay may be condone as the assessee is at risk of not filling the appeal on time and on being aware immediately presented the appeal.

2.3. During the course of hearing, the ld. DR objected to assessee’s application for condonation of delay and prayed that Court may decide the issue as deem fit and proper in the interest of justice.

2.4 We have heard both the parties and perused the materials available on record. The Bench noted that the email id was of the counsel and the same was put to the notice of the assessee and thereby resulted to the delay in filling the present appeal. As pointed out the fact are clear that in this case the principles of natural justice has been violated as confirmed by the assessee in his affidavit. Our constitution guarantee that right vide Article 14. Since that is so and was not controverted by placing anything contrary we considered the reasons advanced in the affidavit by the assessee and condone the delay in filling the present appeal.

3. The assessee has marched this appeal on the following grounds:-

“1. The Ld CIT(A) has erred on facts and in law in dismissing the appeal of the assessee for non-prosecution, whereas in view of Section 250 (6) of the Act, the CIT(A) has no power to dismiss an appeal on account of non-prosecution, as held by Hon'ble Bombay High Court in CIT vs. Premkumar Ar