SMT. RUPA MAHESHKUMAR GANDHI,AHMEDABAD vs. THE ITO, WARD-5(3)(2), AHMEDABAD

The assessee in her appeal has raised the following three grounds:

That the learned CIT(A) has erred in laws and facts by not quashing the order passed under section 147 rws 144 as the proceedings for the reassessment is bad in law and therefore the order passed by the Id.AO is to be quashed.

The first issue is regarding non-admission of appeal due to late filing of appeal by 66 days before the ld.CIT(A).

In nutshell, the facts of the assessee’s case is that assessment order under section 144 read with section 147 of the Income Tax Act, 1961 was passed by the AO on 21.12.2017 and determined assessed income at Rs.9,05,412/-. Against this order assessee preferred appeal before the ld.first appellate authority. The ld.CIT(A) noticed that the date of service of the assessment order on the assessee was on 26.12.2017 but assessee e-filed the appeal only on 30.3.2018, which was beyond the time limit stipulated under section 249 of the Income Tax Act. In other words, the appeal should have been filed within 30 days from the date of service i.e. on 24.01.2018, and therefore, there was delay of 66 days in filing the appeal before the ld.first appellate authority. The reason explained by the assessee for delay in filing the appeal before theld.CIT(A) was that she was not aware about the passing of the assessment order, and the proceedings which were going on before the AO. The ld.CIT(A) was not satisfied with the explanation of the assessee for delay in filing the appeal, and observed that there was no reasonable and sufficient cause which prevented the assessee to file the appeal within the stipulated time. He accordingly rejected the delay condonation and dismissed the appeal in limine. Aggrieved by order of the ld.CIT(A), is now before the Tribunal.

I have duly considered rival contentions and gone through the record carefully. Sub-section 5 of Section 253 of the Act contemplates that the Tribunal may admit an appeal or permit filing of memorandum of cross-objections after expiry of relevant period, if it is satisfied that there was a sufficient cause for not presenting it within that period. This expression “sufficient cause” employed in the section has also been used identically in sub-section 3 of section 249 of Income Tax Act, which provides powers to the ld.Commissioner to condone the delay in filing the appeal before the Commissioner. Similarly, it has been used in section 5 of Indian Limitation Act, 1963. Whenever interpretation and construction of this expression has fallen for consideration before Hon’ble High Court as well as before the Hon’ble Supreme Court, then, Hon’ble Court were unanimous in their conclusion that this expression is to be used liberally. I may make reference to the following observations of the Hon’ble Supreme court from the decision in the case of Collector Land Acquisition Vs. Mst. Katiji & Others, 1987 AIR 1353:

Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

"Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.”1 7. In the light of the above, if I consider explanation of the assessee before the ld.CIT(A), then it would reveal that the assessee was not aware about the assessment order or about the proceedings at the level of the assessment officer. Immediately, when she came into the knowledge about the order, she e-filed the appeal, and in the process delay of 66 days was occurred. To my mind, looking to the quantum of delay of 66 days, and also of the fact that on similar set of facts, in the case of relative of the assessee viz. Kuntalal Mahesh Gandhi for the A.Y.2012-13 to 2014-15, the 4

In the result, appeal of the assessee is allowed for statistical purpose. Order pronounced in the Court on 1st June, 2021 at Ahmedabad.