BHAGWATI DEVI FAMILY FUND TRUST,JAIPUR vs. DCIT , CPC, BANGALORE

The hearing of the matter was scheduled for today through video conferencing in view of the ongoing Covid-19 pandemic situation in the country. None appeared on behalf of the assessee, however, an adjournment application was received by the Registry which was signed by the A/R on behalf of the assessee stating that due to some urgent family health issues, the matter may be adjourned.

The ld. DR is heard who has drawn our reference to the order of ld. CIT(A) and submitted that on as many as three occasions, opportunity has Bhagwati Devi Family Fund Trust Vs. DCIT, Jaipur been provided by the ld CIT(A), however, no one had attended the hearing and no written submissions were filed and the matter was accordingly decided by the ld CIT(A). It was further submitted that even before the Tribunal, the matter has been listed in the past, however, the authorized representative has sought adjournment from time to time and even today, when the matter was listed for hearing, an adjournment has been sought. It was accordingly submitted that more than adequate opportunity has been provided by the ld. CIT(A) and the Tribunal, no useful purpose would be served in providing further opportunity to the assessee.

We have heard the rival submissions and purused the material available on record.

At the outset, we note that there has been a delay in filing the present appeal by 242 days. The assessee has filed a condonation application along with an affidavit stating that due to wrong advice given by a Chartered Accountant, the appeal couldn’t be filed, however, due to subsequent advice received from another Chartered Accountant, the assessee has moved the present appeal and the delay so happened in filing the present appeal may be condoned.

The ld DR is heard who has opposed the condonation application and submitted that no reasonable cause is demonstrated by the assessee for the delay in filing the present appeal.

We find that in case of Collector, Land Acquisition vs MST Katiji (1987) 167 ITR 471, the Hon'ble Supreme Court has held that the expression ‘Sufficient Cause’ employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner to sub-serves the ends of justice that being the life-purpose of the existence of the institution of Courts. Bhagwati Devi Family Fund Trust Vs. DCIT, Jaipur It was further held by the Hon’ble Supreme Court that such liberal approach is adopted on one of the principles that 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. Another principle laid down by the Hon’ble Supreme Court is that when substantial justice and technical considerations are pitted against each other, the 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. It was also held by the Hon’ble Supreme Court that there is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of male fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk. In the instant case, applying the same principles, we find that the assessee has all along acted diligently in safeguarding its legal rights and availing the remedies available to it and has acted and taken action basis the advice and assistance sought from its Chartered Accountant. He was initially advised not to file an appeal before the Tribunal as the matter relates to processing of return of income and thereafter, he was advised to file the present appeal as there is no legal bar in filing the appeal against the demand raised in terms of processing of return of income and intimation issued u/s 143(1) of the Act. We find that there is no culpable negligence or malafide on the part of the assessee in delayed filing of the present appeal and it does not stand to benefit by resorting to such delay. On merits as well where the assessee has raised the issue of chargeability of tax at the maximum marginal rate vis-à-vis the slab rate of taxation as applicable in the case of beneficiary of trust, we find that the assessee deserve an opportunity to be heard once and the matter shouldn’t be dismissed on mere technicality. Therefore, in the facts Bhagwati Devi Family Fund Trust Vs. DCIT, Jaipur and circumstances of the present case, the delay in filing the present appeal is condoned and the appeal is admitted for adjudication.

We find that pursuant to filing of return of income by the assessee on 6.2.2014 which was processed by the CPC and an intimation u/s 143(1) of the Act was issued raising a demand of Rs 25,950/- on the assessee which has been contested in appeal before the ld CIT(A). The matter has been listed for hearing on couple of occasions however there has been no compliance on part of the assessee and the matter has thereafter been decided ex-parte by the ld CIT(A). However, the fact of the matter is that the appeal has not been decided on merits and in absence of findings of the ld CIT(A), no useful purpose would be served in adjourning the matter any further and in the interest of justice and fair play, we deem it appropriate to remand the matter to the file of the ld CIT(A) to provide one more opportunity to the assessee to put forward its contentions and submissions which shall be decided on merits after providing reasonable opportunity to the assessee.