Whatsapp Chat confirms Counsel’s Negligence Caused Delay in Filing Income tax Appeal: ITAT Restores matter to CIT(A) [Read Order]

The Indore Bench of the Income Tax Appellate Tribunal ( ITAT ) held that delay in filing income tax appeal was due to the negligence of the counsel. The tribunal accepted the proof of whatsapp chat submitted.

Kalpana Narware, the assessee-appellant, challenged the order of the Commissioner of Income Tax (Appeals) [CIT(A)-NFAC] before the tribunal. According to the assessee, the department passed an ex-parte assessment order on 25.10.2019.

There was a delay of 112 days in filing the present appeal before ITAT. The assessee said that the same was due to her pregnancy during the relevant period. She submitted the medical reports.

Additionally, the tribunal also noted that there was a huge delay of 508 days in filing the first appeal before the CIT(A). The assessee submitted that she was misled by her counsel/consultant who assured her that the appeal had been filed. However, the same was not filed.

To support this, the assessee filed an interlocutory application supported by affidavit, along with mobile/Whatsapp chat printouts, showing that she had paid fees and repeatedly followed up regarding filing of the appeal.

The ITAT observed that these Whatsapp chats prima facie shows that the assessee had acted diligently, and the delay occurred due to negligence on the part of the counsel, with no contrary material produced by the Revenue to rebut the claim.

The bench noted the fact that a huge part of the delayed period fell within the Covid-19 pandemic. Therefore the relaxation granted by the Supreme Court applies.

According to the bench, “the CIT(A) ought to have judiciously considered the reasoning explained by assessee. We find that section 249(3) empowers the CIT(A) to admit an appeal after expiry of prescribed time, if there is a sufficient cause for not presenting appeal within prescribed time.”

The tribunal considered the submission of the assessee’s counsel that no hearing was given to the assessee. The AO’s order was completely an ex-parte.

Therefore, the bench of Paresh M. Joshi and B.M. Biyani restored the matter for fresh adjudication to the AO despite the delays in filing appeal. It directs that the assessee must remain vigilant and cooperate, and that unnecessary adjournments should not be sought.

The appeal was decided accordingly.

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