SHRI RAJ KUMAR GUPTA,JAIPUR vs. INCOME TAX OFFICER, WARD-6-2, JAIPUR

1. The assessee could not file the appeal in time at CIT level as he got sick and mentally upset due to deep financial pressure as he was suffering from financial hardship and seeked condonation of delay of 38 days in filing the appeal but his appeal was dismissed by CIT(A) without dealing on the basis of merits of the case as CIT sustained the arbitrarily disallowance by ld. AO of lump sum addition of Rs. 4,00,000/- out of other expenses without any basis. Also Assessing Officer has erred in law by arbitrarily disallowing Lump sum amount of Rs. 4,00,000/- without issuing show cause notice U/s 143(2) which is violation of the principle of nature justice.”

In this appeal, the main grievance of the assessee relates to challenging the action of the ld. CIT(A) in dismissing the appeal without condoning the delay of 38 days in filing the appeal as well as without discussing the merit of the case.

The ld AR appearing on behalf of the assessee has reiterated the same arguments as were raised before the ld. CIT(A). He has submitted that as per the provisions of the section 246(2)(b) Income Tax Act,1961 (in short, the Act) an appeal may be filed by the assessee within 30 days from the date of the service of the notice of demand relating to the assessment or penalty, but as per section 249(3) of the Act, an appeal can be admitted even after expiration of the said period, if assessee has sufficient cause for not presenting it within that period. He has further submitted that in this case, the assessee could not file the appeal as he was suffering from ac lumbago and back pain patella (knee cap) tracking dysfunction (PTD) continuous Cold & Cough and blood pressure and his medical consultant Dr. MP Kolbhandari (MBBS, MS, Ortho) advised him for bed rest for one and half month from 25.01.2017 to 08.03.2017, certificate in this regard has also been enclosed at page No. 36 of the paper book, hence he is not in the position to complete formalities of 3 ITA 1460/JP/2018_ Shri Raj Kumar Gupta Vs ITO filing appeal. The ld AR has further submitted that the assessee was also financially suffering as he could not pay his labour or even not able to pay nominal expenditure due to demonetization period from 09.11.2016 to 31.12.2016. He has submitted that the assessee was unable to pay his labour payment due to demonetization period and could not file appeal before your honor due to the disease, business hassle due to demonetization which is uncontrollable in the hands of the assessee. Thus, it should be considered as a sufficient cause and condonation of delay should be allowed. The cases highlighted above clearly specifies that merely delay in filing cannot be the ground for rejection of an appeal is the reason that the legislature itself has conferred the power to condone delay by enacting section 5 of the. Limitation Act of 1963 in order to enable the court to do the substantial justice to the parties by disposing of matter on "merits". The expression "sufficient cause" employed by the legislature is adequately elastic to enable the court to apply the law in a meaning manner which serves the ends of justice that being the life purpose of the existence of the institution of courts. In view of the above, the ld AR has requested for condonation of delay of 38 days in filing the appeal and also prayed for restoration of matter to the file of ld. CIT(A). The ld AR has relied on the following judicial pronouncements:

State of UP Vs. Bahadur Singh & ors. (1983) 142 ITR 745 (SC) 3. Anil Soni Vs ITO (1992) 52 Taxman 48, 49 (J&K) 4. Ram Lal & Sons Vs ITO (2006) 099 TTJ 0063 (Asr. Trib).

We have considered the rival submissions as well as relevant material on record. As regards the sufficiency of cause for filing the appeals belatedly, it is settled principles of law that the Courts have to take liberal approach while interpreting the expression ‘sufficient cause’ for condonation of delay. In case of Collector, Land Acquisition Vs. Mst. Katiji (1987) 167 ITR 471, the Hon’ble Supreme Court has laid down the principle that the power to condone the delay provided under the statute is to enable the Courts to do substantial justice to the parties by disposing of the matter on merits, therefore, while considering the matters for condonation of delay, the law must be applied in a meaningful

If we apply the settled principles as laid down by the Hon’ble Supreme Court as well as other courts on the facts of the present case, we find that the assessee has explained cause of delay, therefore, in the facts and circumstances of the case, we condone the delay of 38 days in filing the present appeal and remand the matter back to the record of the ld. CIT(A) for deciding the appeal afresh on merits after giving an opportunity of hearing to the assessee. The assessee is also directed to cooperate with the ld. CIT(A) in deciding the appeal on merits and without any sufficient reason, not to take further adjournments. If the assessee takes adjournment without any sufficient and plausible reason,

Before parting, we may make it clear that our decision to restore the matter back to the file of Ld. CIT(A) shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by Ld. CIT(A) independently in accordance with law.

In the result, appeal of the assessee is allowed for statistical purposes only.