Re: Assessment done ex parte

If assessment order passed on 24.12.2019 ex-parte u/s 144 and same was delivered on email not accessed by assessee and hard copy of the order returned back to AO due to wrong address, certified copy received on 15.3.2020, can such assessee go for VSV?

The assessee has accepted that the order was forwarded by e mail on the mailing address provided by him but he had failed to access the e mail in time . The service of an order electronically by an e-mail is a valid service as per s.282 , particularly clause( c ) of sub-section(1) and (2) and Rule 127 r.w.s 66A of the Information Technology Act. Such a servie is alo permitted under the Code of Civil Procedure, 1908. The assesse should again check whether the notice was served at the e mail address given by him and confirm the date of service. The time for filing an appeal starts running u/s 246A form the date of service of the order on the e mail address given by him. In his case even where an appeal is filed before 31.01.2020, he will not be able to seek the benefit under VSVt in as much as he will not be treated as appellant under clasue(a) of sub-section (1) of s.2 of the Act. No appeal can be said to be pending in his case  as on the specified date. 

The assesse may make an application for condonation of delay in filing the appeal to the CIT(A) and get the same waived by furnishing the reasons for delay in filing. Not accessing the email regularly can be a valid reason for an assesse who is otherwise not techno savvy. On getting the appeal admitted on condonation of delay he should be entitled to ope for the VSVt provided the appeal even if belated was filed by the specified date i.e. 231.01.2020.

The service of notice by the AO on the wrong postal address and returning of the same by the postal department can be a solid ground in ordinary circumstances and his case then would be considered as the case for which the time for filing the appeal shall be taken to have NOT been  expired in accordance with sub-clause(C) of clause(f) of sub-section(1) of section2 of the Act. In such an event, he would be well within his right to make a valid declaration u/s 4 after first filing the appeal.  

The assesse is advised to file an appeal and thereafter move an application for condonation of delay in filing the appeal and also consider the possibility of covering his case under sub-clause(C) of clause(f) of sub-section(1) of section2 of the Act as an alternative.

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