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Income Tax Appellate Tribunal, HYDERABAD BENCH “A”, HYDERABAD
PER A. MOHAN ALANKAMONY, A.M:
This appeal is filed by the assessee against the order of the Ld. CIT (A)-3, Hyderabad in appeal No. 10153/2018- 19/B3/CIT(A)-3, dated 10/02/2019 passed U/s. 143(3) r.w.s 250(6) of the Act for the A.Y. 2013-14.
The assessee has raised eight grounds in its appeal and they are extracted herein below for reference: -
“1. Your appellant submits that CIT (A) ought to have condoned the delay in filing the appeal electronically as the appeal was filed physically before the CIT (A) before the due date. 2. Your appellant submits that the CIT(A) ought to have place reliance of the judgments passed by ITAT Mumbai in holding that the delay in filing electronic appeal may be condoned as the original appeal was filed in time. 3. Your appellant submits that the CIT(A) ought to have appreciated the fact that this being the first year of filing the appeal electronically, condoned the delay since the manual appeal was filed within time. 4. Your appellant submits that mere flaw in technically of filing appeal online should not be a reason for dismissal of appeal without adjudicate of the merits. 5. Your appellant submits that the CIT(A) as well as the Assessing Officer erred in law and facts of the case in rejecting the books of accounts and estimating the income. 6. Your appellant submits that the CIT(A) as well as the Assessing Officer ignored the fact that the sale price is not under the control of your appellant and explanation filed by your appellant for low profit, rejected the books and estimated the income. 7. Your appellant submits that the Assessing Officer applied the ratio of the Hon’ble Supreme Court in the case of H.M. Esufali, H.M. Abdula are not applicable to the facts of the case. 8. For these facts and such other grounds that may be urged at the time of hearing your appellant prays that the Hon’ble Members may delete the addition.”
At the outset, Ld. AR submitted before us that there is a delay of 65 days in filing the appeal before the Tribunal. In this regard, the Ld. AR had filed a letter dated 05/07/2021 seeking condonation of delay wherein the reasons for not filing the appeals within the prescribed time limit was explained. For reference, the relevant portion from the aforesaid letter is extracted herein below: -
“…….. Th due date for filing the appeals before various appellate authorities were extended by the government vide section 3. Taxation and other laws (Relaxation and Amendment of Certain Provisions) Act, 2020 dated 29th September, 2020, a copy of the same is enclosed . Section 3 of Gazette reads as under: 3. (1) Where, anytime limit has been specified in, or prescribed or notified under, the specified Act which falls during the period from the 20" day of March, 2020 to the 29" day
of June, 2020 or such other date after the 29" day of June, 2020 as the Central Government may, by notification, specify in this behalf, for the completion or compliance of such action as- (a) completion of any proceeding or passing of any order or issuance of any notice, intimation, notification, sanction or approval or such other action, by whatever name called, by any authority, commission or tribunal, by whatever name called, under the provisions of the specified Act; or (b) filing of any appeal, reply or application or furnishing of any report, document, return, statement or such other record, by whatever name called, under the provisions of the specified Act; or….. ………. and where completion or compliance of such action has not been made within such time, then, the time limit for completion or compliance of such action shall, notwithstanding anything contained in the specified Act, stand extended to the 30th day of June, 2020, or such other date after the 30th day of June, 2020, as the Central Government may, by notification, specify in this behalf:……..” ………” In view of the above section 3 of the Gazette dated 26/09/2020 the due date of filing an appeal falls between 20th March, 2020 and 31st December, 2020 the due date automatically stands extended till 31/3/2021. In the case of your appellant the order was passed by the CIT(A) on 10/02/2020 was received on 20/02/2020, the due date of filing the appeal will be 10/04/2020, which falls within the period of 20/03/2020 to 31/12/2020. Hence the due date for filing the appeal stands extended to 31/3/2021. The appeal was filed on 24/06/2020 which is the extended due date and therefore there is no delay in filing the appeal. The appeal may be admitted and adjudicated.”
Considering the submission of the assessee We deem it a fit case to condone the delay in filing the appeal. Accordingly in the interest of justice, we hereby condone the delay of 65 days in filing the appeal before the Tribunal and proceed to adjudicate the appeal on merits.
At the outset, the Ld. AR submitted before us that there was a delay of 977 days in filing the appeal before the Ld. CIT (A). The Ld. AR further submitted that before the Ld. CIT (A), that the assessee had filed submissions stating the reasons for the delay in filing the appeal and had requested for condonation of the delay. However, the Ld. CIT (A) did not consider the submissions of the assessee and dismissed the appeal
of the assessee in limine. It was therefore pleaded that the delay in filing the appeal before the Ld. CIT (A) may be condoned and the matter may be remitted back to the file of the Ld. CIT (A) so that the assessee can pursue the appeal effectively otherwise great injustice will be inflicted on the assessee. On the other hand, the Ld. DR vehemently argued in support of the order of the Ld. CIT (A) and pleaded that the same may be confirmed.
Having regard to the facts and circumstances of the case and after carefully perusing the materials on record, we are of the view that the onus is on the assessee to furnish justifiable reasons with evidence while seeking condonation of delay, if any, before the competent Authorities. In the present case, it appears that the assessee could not convincingly explain the reasons for the delay in filing the appeal before the Ld. CIT (A) with evidence. Therefore, the Ld. CIT (A) refrained from condoning the delay and dismissed the appeal of the assessee. However, in the case of the assessee, we of the view that, considering the gravity of the averments made by the assessee, the Ld. CIT(A) ought to have at least provided proper opportunity to the assessee to furnish the evidence/affidavit etc. Further considering the peculiar facts and circumstance of the case and the issues involved in the appeal, in the interest of justice, we hereby condone the delay of 977 days in filing the appeal before the Ld. CIT (A) and remit the matter back to the file of the
Ld. CIT (A) for fresh consideration on merits. At the same breath, we also hereby caution the assessee and its Representative to promptly co- operate before the Ld. CIT (A) in the proceedings failing which the Ld. CIT (A) shall be at liberty to pass appropriate orders in accordance with law and merits based on the materials on the record. It is ordered accordingly.
In the result, appeal of the assessee is allowed for statistical purposes as indicated herein above.
Pronounced in the open Court on the 16th September, 2021.
Sd/- Sd/- (S.S. GODARA) (A. MOHAN ALANKAMONY) JUDICIAL MEMBER ACCOUNTANT MEMBER Hyderabad, Dated: 16th September, 2021. OKK Copy to:- 1) Sri Krishna Jewellery Mart, C/o. M. Anandam & Co., Chartered Accountants, Flat No.7A,m Surya Towers, S.P. Road, Secunderabad. 2) Assistant Commissioner of Income Tax, Circle 7(1), Hyderabad. 3) The Commissioner of Income Tax (Appeals)-3, Hyderabad. 4) The Principal Commissioner of Income Tax-3, Hyderabad. 5) The DR, ITAT, Hyderabad 6) Guard File