Re: Delayed Appeal Dismissed by ITAT

An appeal was filed belatedly on 27.02.2019 with an application for condonation of delay to ITAT (A). The ITAT fixed hearing on 04.03.2020 notice whereof was not received by the appellant but the ITAT decided not to condon delay and ordered that the appeal is not maintainable. The assessee wishes to apply for Vivad se Vshwas. Is he eligible for the same? Kindly enlighten. Thanks

The assessee must file miscellaneous application before the Appellate Tribunal to recall the order as the notice of hearing was not received by the assessee. Please take inspection of the record to verify whether notice is served or not . If notice is not served , file an affidavit stating that the notice is not served .   In Rainbow Agri Industries Ltd. v. ITAT (2003) 132 Taxman 752 /(2003)  185 CTR 482 /(2004) 266 ITR 38 (Bom.)(HC)  the court held that  ex-parte order decided on merits can also be recalled if the assessee was unaware of date of hearing . InLalitnirman Business Development (P.) Ltd. v. ITO 259 Taxman 23 (Bom.)(HC) Court held that passing Ex-parte order without ascertaining whether notice was duly served and assessee had avoided intentionally and deliberately to attend case of hearing would result in miscarriage of justice-Ex-parte order is seta side.( Also refer  Devendra G.Pasale v.ACIT ( 2010) 333 ITR 263 (Guj) (HC) .

 It may desirable to make the miscellaneous application at the earliest  and also make an application for early hearing of the application, which normally Appellate Tribunal will entertain. 

Once the appeal is recalled make proper application with supporting affidavit for condonation of delay . When the delay is condoned the appeal is entertained  the assessee can avail the benefit of VSVS.   

  

  

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