IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “SMC”, MUMBAI BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND SHRI RAJ KUMAR CHAUHAN, JUDICIAL MEMBER ITA No.3485/Mum/2024 (Assessment Year : 2017-18)

Mr Kamlesh Baburam Yadav vs Income Tax Officer-1(2)

Shivaji Nagar, Near Sharma Kalyan, Mohan Plaza, Wayale Saloon, Anjurphata, Bhiwandi, Nagar, Khadka Pada, Kalyan (W)

Dist. Thane – 421 305 421 201 PAN : AFGPY1981B APPELLANT RESPONDENT Assessee by : None Respondent by : MS Smitha V Nair (Addl. CIT)

Date of hearing : 07/11/2024 Date of pronouncement : 06/02/2025

O R D E R

PER RAJKUMAR CHAUHAN:

This appeal is directed against the order dated 27/10/2021 passed by National Faceless Appeal Centre, Delhi (NFAC)[hereafter called ‘Ld.CIT(A)’] passed under section 250 of the Income-tax Act, 1961 of the Income-tax Act, 1961 (in short, ‘the Act’) wherein the appeal of the assessee was dismissed on account of 4 days’ delay and was not adjudicated on merit.

2. At the outset we notice that none was present on behalf of the assessee despite service of notice of hearing. However, we find that the appeal could be disposed of even without the presence of the assessee. Therefore, the appeal was proceeded exparte qua the assessee after hearing the Ld.DR and on perusal of the material on record.

3. While dismissing the appeal on account of delay, the Ld.CIT(A) has observed as under :-

“3.1 From the perusal of record, it is seen that the appellant has filed appeal on 30.01.2020 whereas the order u/s 143(3) is dated 20.12.2019. In Form No.35, for filing of appeal before CIT(A), the appellant has himself mentioned the date of service of the order u/s 143(3) as 27.12.2019. The appeal should have been filed within 30 days Le. 26.01.2020 from service of Order as per Section 249(2) of the Act. Therefore, prima facie the appeal is late by 4 days. In column no. 14 of Form No. 35, the appellant stated that there is no delay in filing of appeal. This is a wrong fact as there is a delay in filing appeal. No document is attached along with Form No. 35 admitting delay and requesting for condonation of delay. Even notices u/s 250 dated 03.09.2021, 08.10.2021 and 18.10.2021 specifically pointing out this discrepancy of delay in filing appeal has not been complied by the appellant.

3.2 Considering all the facts on record, it is apparent that the appellant has failed to file appeal within the stipulated time limit prescribed under the Act. Since the appellant has not admitted that there is delay in filing of appeal whereas prima facie the appeal is late by 4 days. This is a case of misrepresentation of fact by the appellant. Under the given facts and circumstances, the appeal is not fit to warrant its admission. Therefore, the appeal is treated as dismissed as not admitted.”

4. We have heard the Ld.DR. The Ld.DR, supported the order of the Ld.CIT(A) stating that the delay of 4 days was not explained before the Ld.CIT(A) which has resulted into passing of the impugned order.

5. From the record we find that the assessee appellant filed appeal belatedly alongwith an affidavit for the delay of four days. The Ld.CIT(A) has, however, did not consider the affidavit and has taken a technical view as per the affidavit now filed by appellant / assessee, was due to non service of notice by post. Thus, it was prayed that the contents of the affidavit may be considered and matter may be restored to the Ld.CIT(A) for deciding the same on merit after affording opportunity of hearing to the assessee. We notice that the Ld.DR could not contradict the affirmation made by the assessee in the affidavit, which reads as follows:-

OR CONDONATION OF DELAY “AFFIDAVIT IN SUPPORT OF APPLICATION F

1, Mr. Kamlesh Baburam Yadav, Age about 35, Occ: Business, Residing at: Shivaji Nagar, Near Sharma Saloon, Opp Rinki ME, Bhiwandi, Dist. Thane, do hereby solemnly state of oath as under:

1) I say that the present appeal has been filed by the appellant against the Order of CIT (A) (NFAC) dated 27/10/2021 (hereinaft