TMI Blog2023 (4) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... tax recovery notice from the DCIT, he took steps in reaching out to the DCIT as well as the ld CIT(A) and has filed the present appeal. We therefore find that though there is a delay, there is however no culpable negligence or malafide on the part of the assessee in delayed filing of the present appeal. There exists sufficient and reasonable cause for condoning the delay in filing the present appeal and as held by the Hon ble Supreme Court, where substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserved to be preferred and the assessee deserve to be heard on merits of the case. Therefore, in exercise of powers u/s 253(5) of the Act, we hereby condone the delay in filing the present appeal as we are satisfied that there was sufficient cause for not presenting the appeal within the prescribed time and the appeal is hereby admitted for adjudication. We are of the considered view that the assessee couldn t be punished unheard as the same would be against the canons of natural justice and therefore, deserve one more opportunity to put forth his submissions and be heard on merits of the case - we set-aside the matter to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the appellant's side. The notices sent by e-mail as well as speed post . It was submitted that as per copy of notice dated 27.06.2018 fixed for hearing on 06.07.2018, it is addressed to Gurmej Singh Johal S/o Bawa Singh B-5/2 ITI Colony, Chandigarh Road, Nawanshahr and not at address as mentioned on Form 35 (copy of notice placed at page 4 of paper book). Similarly as per copy downloaded from e-proceedings ITBA portal dated 13.3.2020, there is no mention of 2nd notice dated 25.07.2018, (as claimed by Ld. CIT(A]-43 in order). The response date is no where mentioned (copy as downloaded is placed at page 5 of paper book). It was submitted that as per ITBA e-proceeding for first appeal, there is no mention of proceeding closure date. Still today, the appeal order cannot be downloaded from the ITBA portal (page 6 of paper book). The assessee through his AR has requested the DCIT (International Taxation Circle) Chandigarh vide letter dated 28.03.2019 and to Ld. CIT (A)-43 vide speed post and e-mail dated 31.08.2020 to supply the copies of order and other relevant material (placed on page 8-10 of paper book) but these have not been supplied till today. 4. It was submitted that d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2nd notice dated 25.07.2018,(as claimed by Ld. CIT(A)43 in order). The response date is nowhere mentioned. In this regard it is submitted that notice dated 27.06.2018 was well communicated to the assessee through e-proceedings portal as the assessee has nowhere mentioned that it was not received by him. Also, with regard to 2nd hearing notice, it is clearly mentioned in the last line of Para 4.1 page 3 of the CIT(A) order which is quoted by the AR of the assessee as well that 'The notices sent by e-mail as well as speed post It is worthwhile to mention that the 2nd notice was served upon the assessee through the email provided in the Form no. 35 i.e. sehjal30@qmail.com. It was submitted that the final order was passed on 04.09.2018 and here it becomes very indispensible to notice that the assessee remained non-compliant even after the 2nd notice was well served upon him and through the email provided by himself in Form no. 35. 8. The assessee has further contended that he has not been able to download the CIT(A) order till today from the ITBA Portal. It also appears to be an inappropriate contention because the order was duly uploaded on ITBA well within stipulated time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covid 19 pandemic period. For the period of covid 19 pandemic, there is no dispute that the said period needs to be excluded for the purposes of limitation in view of decision of the Hon ble Supreme Court. For the period pre-covid 19 pandemic, what is relevant to examine is whether there was sufficient cause on the part of the assessee in not presenting the present appeal within the prescribed time. The explanation of the assessee therefore becomes relevant to determine whether the same reflects sufficient cause on his part in not presenting the present appeal within the prescribed time. In this regard, we refer to the affidavit which has been filed by the assessee and the contents thereof read as under: GURMET SINGH JOHAL S/O BAWA SINGH R/o 3628, 33rd STREET, EDMONTON AB. CANADA do hereby solemnly and sincerely declare and affirm as under: 1. That I am a NRI, Canadian Citizen residing there since 1972. Holding valid passport No. HG858388. 2. That I was not in India at least from 02.03.2017 to 03.09.2017, 14.12.2017 to 04.11.2018, 20.03.2019 to 06.11.2019 and 07.05.2020 to 21.11.2021, neither I was having any authorized agent in India to receive notices on my behal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, due to covid-19 pandemic, there was lockdown and as soon as the assessee was in receipt of the order so passed by the ld CIT(A), he has taken steps and filed the present appeal. We therefore find that though the assessee has taken excuse of not physically present in the Country at the time of passing of the order and the order not being communicated physically to him, the fact remains that the order was uploaded on the IT portal though it is also a fact that the assessee was not able to access and download the same even today, which may be due to some technical glitch, a fact not disputed by the Revenue. At the same time, as soon as the assessee was ceased of the communication of dismissal of his appeal and in receipt of tax recovery notice from the DCIT, he took steps in reaching out to the DCIT as well as the ld CIT(A) and has filed the present appeal. We therefore find that though there is a delay, there is however no culpable negligence or malafide on the part of the assessee in delayed filing of the present appeal. There exists sufficient and reasonable cause for condoning the delay in filing the present appeal and as held by the Hon ble Supreme Court, where substantial ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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