BIZZNET ONLINE SYSTEMS PVT LTD,MUMBAI vs. ACIT CIRCLE-1, THANE

Since, the facts germane to the grounds raised in both the appeals are identical, these appeals are taken up together for adjudication and are decided by this common order.

Shri Bharat Gandhi appearing on behalf of the assessee submitted that the CIT(A) has dismissed appeal of assessee on the ground of limitation. Narrating the facts he pointed that the assessment order was passed u/s. 143(3) r.w.s. 147 of the Income Tax Act, 1961 [in short 'the Act'] on 18/02/2016. Against the aforesaid assessment order, the assessee intended to file appeal before the CIT(A). The assessee handed over relevant documents along with assessment order to the Tax Consultant Shri Hitesh K. Mehta, Chartered Accountant for filing of appeal before CIT(A). The said Chartered Accountant failed to file appeal before CIT(A) on time. By the time it was realized that no appeal has been filed for assessment year 2010-11, there was already delay of more than 180 days. The assessee immediately filed appeal before the CIT(A) along with application for condonation of delay. Along with the application the assessee has also field certificate from the Chartered Accountant Shri Hitesh Mehta stating that the delay in filing of appeal was on his account. The total delay in filing of the appeal before CIT(A) was 189 days. The CIT(A) without appreciating the facts dismissed the appeal on account of limitation. The Hon'ble Supreme Court of India in various cases has held that the delay in filing of appeal should be condoned taking a lenient view in paramount interest of justice. The ld. Counsel for the assessee further submits that on merits the assessee has a good case in its favour. The balance of convenience is also in favour of the assessee. He prayed that if appeal is restored to the CIT(A), the assessee would be able to defend the appeal on merit.

Per contra, Shri Sunny Kachhwaha representing the Department vehemently opposed the appeal filed by the assessee. The ld. Departmental Representative pointed that the assessee has miserably failed to show sufficient cause resulting in inordinate delay of 189 days in filing of the appeal before CIT(A). He submitted that the reason given in application for condonation of delay before CIT(A) and the reason given in certificate by the Chartered Accountant for not filing appeal within time are different. Hence, no reliance can be placed on the reasons given by the assessee for delay in filing of the appeal.

Both sides heard, orders of authorities below examined. Against assessment order dated 18/02/2016 passed u/s. 143(3) r.w.s. 147 of the Act, the assessee filed appeal before the CIT(A). The appeal was time barred by 189 days. The assessee filed application for condonation of delay in filing of appeal. Along with application assessee has also filed certificate of Chartered Accountant. The delay in filing of appeal has been attributed to oversight / pre-occupation of the Chartered Accountant. The Chartered Accountant in his certificate has fairly admitted that the delay in filing of the appeal is on his instance.

It is a well settled principle that acceptance of explanation furnished by the assessee explaining reasons causing delay should be the rule and refusal an exception.

The Hon'ble Supreme Court of India in the case Ramnath Sao vs. Gobardhan Sao and Others reported as 2002 AIR 1201 while dealing with the application seeking condonation of delay held as under:

The Hon’ble Apex Court in the case of Collector, Land Acquisition vs. MST Katiji reported as 167 ITR 471 has held that a liberal approach should be adopted while considering explanation furnished causing delay. The broad principles laid down by the Hon’ble Apex Court to be kept in mind while considering application seeking condonation of delay are as under:

Before parting, I may point out that some element of negligence is also attributable to the assessee, as the assessee fails to show any follow up action taken after handing over of the documents to the Chartered Accountant for filing of appeal before the CIT(A). For this negligence, the assessee is directed to pay cost of Rs.10,000/- in accordance with Rule 32A(2) of Income Tax

In the result, impugned order is set-aside and appeal of the assessee is allowed for statistical purpose, subject to the condition aforesaid.

Both sides are unanimous in stating that the facts in assessment year 2012-13 are identical to assessment year 2010-11 except duration of delay. The ld. Departmental Representative pointed that in assessment year 2012-13 there is substantial delay of 739 days in filing of appeal before the CIT(A). The ld. Counsel for the assessee reiterated the submissions and placed reliance on the application for condonation of delay filed by the assessee before the CIT(A) and the certificate given by Chartered Accountant citing reasons for delay.

Both sides heard. On similar set of facts, the appeal of assessee for assessment year 2010-11 has been decided. The length of delay is of no consequences, the acceptability of explanation is the only criteria. Since, the reason given by assessee causing delay has been accepted in light of the principles expounded by the Hon'ble Apex Court, the delay in filing of appeal before the CIT(A) is condoned subject to payment of cost Rs.10,000/-, in similar terms as set out while deciding the appeal for assessment year 2010- 11.

In the result, the impugned order is set-aside and appeal is allowed for statistical purpose.

To sum up, appeal for assessment year 2010-11 and 2012-13 are allowed for statistical purpose.