SHREE SWAMY SAMARTH PRASSANA OSHIWARA (E) UNITS CHS LTD,MUMBAI vs. INCOME TAX OFFICER 25(1)(3), MUMBAI
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Income Tax Appellate Tribunal, MUMBAI BENCH “G” MUMBAI
Before: SHRI OM PRAKASH KANT & MS. KAVITHA RAJAGOPAL
PER OM PRAKASH KANT, AM
This appeal has been preferred by the assessee against order dated 30.11.2022 passed by the Ld. Commissioner of Income-tax (Appeals) – National Faceless Appeal Centre, Delhi [in short ‘the Ld. CIT(A)’] for assessment year 2013-14, raising following grounds:
Shree Swamy Samarth Prassana Oshiwara Shree Swamy Samarth Prassana Oshiwara 2 ITA No. No. 237/M/2023
On facts and in circumstan 1. On facts and in circumstances of the case and in law, Ld. ces of the case and in law, Ld. AO erred in reopening assessment us. 147 of the Income AO erred in reopening assessment us. 147 of the Income AO erred in reopening assessment us. 147 of the Income Tax Act, 1961. Tax Act, 1961. 2. On facts and in circumstances of the case and in law, the 2. On facts and in circumstances of the case and in law, the 2. On facts and in circumstances of the case and in law, the assessee was not required to file the return of income. assessee was not required to file the return of income. assessee was not required to file the return of income. 3. On facts and in circumstances of 3. On facts and in circumstances of the case and in law, on the case and in law, on receipt of notice under section 148 the assessee did not receipt of notice under section 148 the assessee did not receipt of notice under section 148 the assessee did not have correct advice and therefore could not furnish correct have correct advice and therefore could not furnish correct have correct advice and therefore could not furnish correct information and explanation. information and explanation. 4. On facts and in circumstances of the case and in law, as 4. On facts and in circumstances of the case and in law, as 4. On facts and in circumstances of the case and in law, as the impugned investment wa the impugned investment was by a co operative housing s by a co operative housing society having invested accumulated surplus generated out society having invested accumulated surplus generated out society having invested accumulated surplus generated out of collections of funds from its own members. of collections of funds from its own members. 5. On facts and in circumstances of the case and in law, Ld. 5. On facts and in circumstances of the case and in law, Ld. 5. On facts and in circumstances of the case and in law, Ld. AO should have appreciated that a co operative housing AO should have appreciated that a co operative housing AO should have appreciated that a co operative housing society collecting funds from its own members and collecting funds from its own members and collecting funds from its own members and spending the same for its spending the same for its own members is covered by the concept of mutuality and own members is covered by the concept of mutuality and own members is covered by the concept of mutuality and consequent non taxability. Ld. CIT consequent non taxability. Ld. CIT-A has erred in confirming A has erred in confirming the assessement order with addition. the assessement order with addition. 6. On facts and in circumstances o 6. On facts and in circumstances of the case and in law, Ld f the case and in law, Ld AO should have appreciated that a co operative housing AO should have appreciated that a co operative housing AO should have appreciated that a co operative housing society administering the maintenance of the society on society administering the maintenance of the society on society administering the maintenance of the society on behalf of its members and collecting uniformly from its behalf of its members and collecting uniformly from its behalf of its members and collecting uniformly from its members cannot have any unexplained investment. members cannot have any unexplained investment. members cannot have any unexplained investment. 7. On facts and 7. On facts and in circumstances of the case and in law, on in circumstances of the case and in law, on receipt of ex parte assessment order under section 144, the receipt of ex parte assessment order under section 144, the receipt of ex parte assessment order under section 144, the assessee did not have correct advice and the reasons for assessee did not have correct advice and the reasons for assessee did not have correct advice and the reasons for delay were not disclosed correctly and therefore could not delay were not disclosed correctly and therefore could not delay were not disclosed correctly and therefore could not file appeal at Ld. CIT file appeal at Ld. CIT-A in time. 8. On facts and in circumstances of the case and in law, Ld. . On facts and in circumstances of the case and in law, Ld. . On facts and in circumstances of the case and in law, Ld. CIT -A having availed the audited financial statements of A having availed the audited financial statements of A having availed the audited financial statements of the assessee should have appreciated the gross injustice the assessee should have appreciated the gross injustice the assessee should have appreciated the gross injustice happening to the assessee and should have condoned the happening to the assessee and should have condoned the happening to the assessee and should have condoned the delay so that the assessme delay so that the assessment can take place on merits. nt can take place on merits.
Shree Swamy Samarth Prassana Oshiwara Shree Swamy Samarth Prassana Oshiwara 3 ITA No. No. 237/M/2023
At the outset, we find that the Ld. CIT(A) has not condoned the At the outset, we find that the Ld. CIT(A) has not condoned the At the outset, we find that the Ld. CIT(A) has not condoned the delay of 387 days in filing the appeal before him and appeal has delay of 387 days in filing the appeal before him and appeal has delay of 387 days in filing the appeal before him and appeal has been rejected as not admitted. The relevant finding of the Ld. CIT(A) been rejected as not admitted. The relevant finding of the Ld. CIT(A) been rejected as not admitted. The relevant finding of the Ld. CIT(A) is reproduced as under: is reproduced as under:
“21. In the present case, the appellant has not adduced any 21. In the present case, the appellant has not adduced any 21. In the present case, the appellant has not adduced any reasonable cause which prevented it from filing the appeal reasonable cause which prevented it from filing the appeal reasonable cause which prevented it from filing the appeal within the 30 days' time limit which ended on 26.01.2017 within the 30 days' time limit which ended on 26.01.2017 within the 30 days' time limit which ended on 26.01.2017 and even thereafter for more than 387 days. Unless and and even thereafter for more than 387 days. Unless and and even thereafter for more than 387 days. Unless and until it is demonstrated t until it is demonstrated that there was sufficient cause that hat there was sufficient cause that prevented the appellant from exercising its legal remedy of prevented the appellant from exercising its legal remedy of prevented the appellant from exercising its legal remedy of filing appeal within that prescribed period of 30 days, the filing appeal within that prescribed period of 30 days, the filing appeal within that prescribed period of 30 days, the delay thereafter cannot be condoned without there being delay thereafter cannot be condoned without there being delay thereafter cannot be condoned without there being compelling grounds as advocated by the Hon'b compelling grounds as advocated by the Hon'ble Courts. le Courts. 22. From the facts of the case, it is clear that the statutory 22. From the facts of the case, it is clear that the statutory 22. From the facts of the case, it is clear that the statutory right to appeal which was vested with the appellant was right to appeal which was vested with the appellant was right to appeal which was vested with the appellant was not exercised within the stipulated time u/s.249(2). Thus, not exercised within the stipulated time u/s.249(2). Thus, not exercised within the stipulated time u/s.249(2). Thus, this clearly is a case of laches and is directly the result of this clearly is a case of laches and is directly the result of this clearly is a case of laches and is directly the result of deliberate inaction on the part of the appellant. berate inaction on the part of the appellant. 23. This is not a case of change in law which is beneficial to 23. This is not a case of change in law which is beneficial to 23. This is not a case of change in law which is beneficial to the appellant and hence the delay in seeking such remedy the appellant and hence the delay in seeking such remedy the appellant and hence the delay in seeking such remedy may be condoned in the furtherance of substantial may be condoned in the furtherance of substantial may be condoned in the furtherance of substantial justice.Therefore, there is no denial or justice.Therefore, there is no denial or destruction of a destruction of a statutory right in this case, by adhering to the prescribed statutory right in this case, by adhering to the prescribed statutory right in this case, by adhering to the prescribed period of limitation as otherwise it will only lead to protract period of limitation as otherwise it will only lead to protract period of limitation as otherwise it will only lead to protract the matter endlessly and will undoubtedly render the the matter endlessly and will undoubtedly render the the matter endlessly and will undoubtedly render the legislative scheme and intention behind the concerned legislative scheme and intention behind the concerned legislative scheme and intention behind the concerned provision otiose as held by the Hon'ble Supreme Court in on otiose as held by the Hon'ble Supreme Court in on otiose as held by the Hon'ble Supreme Court in the case of Assistant Commissioner (CT) LTU, Kakinada the case of Assistant Commissioner (CT) LTU, Kakinada the case of Assistant Commissioner (CT) LTU, Kakinada &Ors. v. MIs Glaxo Smith Kline Consumer Health Care &Ors. v. MIs Glaxo Smith Kline Consumer Health Care &Ors. v. MIs Glaxo Smith Kline Consumer Health Care Limited 2020[36] G.S.T.L. 305. Limited 2020[36] G.S.T.L. 305. 24. For these reasons, the delay of 387 days in filing of 24. For these reasons, the delay of 387 days in filing of 24. For these reasons, the delay of 387 days in filing of appeal in this case is not condoned as no "sufficient cause" his case is not condoned as no "sufficient cause" his case is not condoned as no "sufficient cause" has been shown u/s. 249(3) of the Income Tax Act, 1961 for has been shown u/s. 249(3) of the Income Tax Act, 1961 for has been shown u/s. 249(3) of the Income Tax Act, 1961 for the appellant's failure to file the appeal within the the appellant's failure to file the appeal within the the appellant's failure to file the appeal within the prescribed period of limitation us.249(2) of the Income Tax prescribed period of limitation us.249(2) of the Income Tax prescribed period of limitation us.249(2) of the Income Tax Act, 1961 r.w.s. 5 of Limitation Act, 1961 r.w.s. 5 of Limitation Act and hence the appeal Act and hence the appeal sought to be instituted belatedly is hereby rejected. sought to be instituted belatedly is hereby rejected. sought to be instituted belatedly is hereby rejected.
Shree Swamy Samarth Prassana Oshiwara Shree Swamy Samarth Prassana Oshiwara 4 ITA No. No. 237/M/2023
In the result, as delay in filing of appeal is not 25. In the result, as delay in filing of appeal is not 25. In the result, as delay in filing of appeal is not condoned, the appeal is not admitted and is rejected condoned, the appeal is not admitted and is rejected condoned, the appeal is not admitted and is rejected accordingly.” ” 3. Before us, the Ld. Counsel of the assessee has submi Before us, the Ld. Counsel of the assessee has submi Before us, the Ld. Counsel of the assessee has submitted that delay was not deliberate or malafide delay was not deliberate or malafide. He referred to the submissions e referred to the submissions made before the Ld. CIT(A) and submitted that assessment order made before the Ld. CIT(A) and submitted that assessment order made before the Ld. CIT(A) and submitted that assessment order was received by the assessee on 12.01.2017 but due to dispute with was received by the assessee on 12.01.2017 but due to dispute with was received by the assessee on 12.01.2017 but due to dispute with one of its members, members, the assessee society could not reply of the not reply of the notice. It was also submitted that being diverse views of the It was also submitted that being diverse views of the It was also submitted that being diverse views of the members, it took time in bringing everyone along for preferring members, it took time in bringing everyone along for preferring members, it took time in bringing everyone along for preferring appeal. Before us, the assessee has also filed an affidavit in support the assessee has also filed an affidavit in support the assessee has also filed an affidavit in support of reasons for the delay in filing the app for the delay in filing the appeal before the Ld. CIT(A). It eal before the Ld. CIT(A). It has been stated by the assessee that relevant assessment order was has been stated by the assessee that relevant assessment order was has been stated by the assessee that relevant assessment order was forwarded to the Chartered Accountant dealing with the matter and forwarded to the Chartered Accountant dealing with the matter and forwarded to the Chartered Accountant dealing with the matter and the assessee came to know about delay only on receipt of the order the assessee came to know about delay only on receipt of the order the assessee came to know about delay only on receipt of the order of the Ld. CIT(A). The ass of the Ld. CIT(A). The assessee has also filed an affidavit from the essee has also filed an affidavit from the relevant Chartered Accountant explain relevant Chartered Accountant explaining the reason for the delay. the reason for the delay. The relevant part of the Explanation of the Chartered Accountant is The relevant part of the Explanation of the Chartered Accountant is The relevant part of the Explanation of the Chartered Accountant is reproduced as under: reproduced as under:
“I Bharat Rughani, chartered accountant, having my Bharat Rughani, chartered accountant, having my Bharat Rughani, chartered accountant, having my address at Premises No. 4, Shilpam CHS Ltd, Chincholi address at Premises No. 4, Shilpam CHS Ltd, Chincholi address at Premises No. 4, Shilpam CHS Ltd, Chincholi Bunder Road, Malad West, Mumbai 400064 hereby state Bunder Road, Malad West, Mumbai 400064 hereby state Bunder Road, Malad West, Mumbai 400064 hereby state on solemn affirmation as under: on solemn affirmation as under: 1. I was the chartered accountant and the authorised 1. I was the chartered accountant and the authorised 1. I was the chartered accountant and the authorised representative b representative before Ld. AO and Id. CIT-A of Shree Swamy A of Shree Swamy Shree Swamy Samartha Prassana Oshiwara (E) Unit 3 Co Shree Swamy Samartha Prassana Oshiwara (E) Unit 3 Co Shree Swamy Samartha Prassana Oshiwara (E) Unit 3 Co operative Housing Society Limited ("Assessee") earlier to operative Housing Society Limited ("Assessee") earlier to operative Housing Society Limited ("Assessee") earlier to and during the year 2015, 2016 and 2017 when the notices and during the year 2015, 2016 and 2017 when the notices and during the year 2015, 2016 and 2017 when the notices for A Y 2009 for A Y 2009-10 and A Y 2013-14 and the reasse 14 and the reassessment
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order for A Y 2013 order for A Y 2013-14 were received by the assessee 14 were received by the assessee society. 2. I say that the assessee had in its income and 2. I say that the assessee had in its income and 2. I say that the assessee had in its income and expenditure account only the collections from members expenditure account only the collections from members expenditure account only the collections from members towards maintenance expenses and payments for the towards maintenance expenses and payments for the towards maintenance expenses and payments for the maintenance and interest from co op maintenance and interest from co operative bank was not erative bank was not taxable and that there was no taxable income and therefore taxable and that there was no taxable income and therefore taxable and that there was no taxable income and therefore in my considered view the assessee was not required to file in my considered view the assessee was not required to file in my considered view the assessee was not required to file the return of income. the return of income. 3. I say that a notice dated 20.10.2015 under section 148 3. I say that a notice dated 20.10.2015 under section 148 3. I say that a notice dated 20.10.2015 under section 148 was received by the assessee for A. was received by the assessee for A. Y. 2009-10. When I 10. When I read the provisions of section 151 of the income tax Act read the provisions of section 151 of the income tax Act read the provisions of section 151 of the income tax Act 1961 for assessment year 2009 1961 for assessment year 2009-10 it transpired that the 10 it transpired that the notice under section 148 could be issued by assessing notice under section 148 could be issued by assessing notice under section 148 could be issued by assessing officer who should not be below the position of joint officer who should not be below the position of joint officer who should not be below the position of joint commissioner of commissioner of income tax and sanction also has to be of income tax and sanction also has to be of the officer of the level of joint commissioner of income tax the officer of the level of joint commissioner of income tax the officer of the level of joint commissioner of income tax and above. Even otherwise as the society had no taxable and above. Even otherwise as the society had no taxable and above. Even otherwise as the society had no taxable income therefore I advised not to file the return of income. income therefore I advised not to file the return of income. income therefore I advised not to file the return of income. 4. I say that I am in practice of au 4. I say that I am in practice of audit and compliances dit and compliances under the incor tax law. I am not in the practice of appellate under the incor tax law. I am not in the practice of appellate under the incor tax law. I am not in the practice of appellate proceedings and litigatio When the reassessment order was proceedings and litigatio When the reassessment order was proceedings and litigatio When the reassessment order was received by the assessee societyforA Y 2013 received by the assessee societyforA Y 2013-14 initially I 14 initially I had taken a view that since the society did not hai taxa had taken a view that since the society did not hai taxa had taken a view that since the society did not hai taxable income therefore no tax was applicable and that the income therefore no tax was applicable and that the income therefore no tax was applicable and that the assessment order was erroneous. I had also filed the assessment order was erroneous. I had also filed the assessment order was erroneous. I had also filed the financial statements of the assessee society on 30.12.2016 financial statements of the assessee society on 30.12.2016 financial statements of the assessee society on 30.12.2016 during the course of assessment proceedings and I thought during the course of assessment proceedings and I thought during the course of assessment proceedings and I thought that even though the financial that even though the financial statements were not statements were not considered by Ld AO as he had already passed the considered by Ld AO as he had already passed the considered by Ld AO as he had already passed the assessment order, but Id CIT assessment order, but Id CIT-A will consider the financials A will consider the financials and will see that the society had no taxable income. I took and will see that the society had no taxable income. I took and will see that the society had no taxable income. I took some time in digesting the appellate provisions and was not some time in digesting the appellate provisions and was not some time in digesting the appellate provisions and was not aware of the time limits applicable for filing appeal. I also of the time limits applicable for filing appeal. I also of the time limits applicable for filing appeal. I also believed that in a cooperative society the delay would be believed that in a cooperative society the delay would be believed that in a cooperative society the delay would be condoned. For various other reasons in my office, the condoned. For various other reasons in my office, the condoned. For various other reasons in my office, the appeal was delayed. I expected that in case of an assessee appeal was delayed. I expected that in case of an assessee appeal was delayed. I expected that in case of an assessee being a society the delay wou being a society the delay would be condoned as there was ld be condoned as there was no taxable income. However, the delay was not condoned no taxable income. However, the delay was not condoned no taxable income. However, the delay was not condoned and the Ld CIT and the Ld CIT -A order was passed confirming the A order was passed confirming the assessment order. Thereafter I have willingly left the work assessment order. Thereafter I have willingly left the work assessment order. Thereafter I have willingly left the work
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of the assessee society so that it can be handled by of the assessee society so that it can be handled by of the assessee society so that it can be handled by someone wh someone who can deal with the serious situation. I have o can deal with the serious situation. I have executed this affidavit so that because of delay on my part executed this affidavit so that because of delay on my part executed this affidavit so that because of delay on my part in filing the appeal at Id CIT in filing the appeal at Id CIT-A, the assessee societyshould A, the assessee societyshould not suffer.” 3.1 The Ld. Counsel of the assessee relied on the decision of the The Ld. Counsel of the assessee relied on the decision of the The Ld. Counsel of the assessee relied on the decision of the Hon’ble Bombay High Court in the case of mbay High Court in the case of Vijay VishinMeghani v. Vijay VishinMeghani v. DCIT [2017] 86 taxmann.com 98 (Bombay) DCIT [2017] 86 taxmann.com 98 (Bombay), wherein delay wherein delay of 2984 days has been has been condoned by Hon’ble Bombay High Court. The condoned by Hon’ble Bombay High Court. The relevant finding of the Hon’ble High Court is reproduced as under: relevant finding of the Hon’ble High Court is reproduced as under: relevant finding of the Hon’ble High Court is reproduced as under:
“21. We find 21. We find from paragraph 13 of the order, but for this from paragraph 13 of the order, but for this relevant factors and tests, everything else has been brought relevant factors and tests, everything else has been brought relevant factors and tests, everything else has been brought into the adjudication by the Tribunal. The Tribunal though into the adjudication by the Tribunal. The Tribunal though into the adjudication by the Tribunal. The Tribunal though aware of these principles but possibly carried away by the aware of these principles but possibly carried away by the aware of these principles but possibly carried away by the fact that the delay of 2984 days fact that the delay of 2984 days is incapable of is incapable of condonation. That is not how a matter of this nature should condonation. That is not how a matter of this nature should condonation. That is not how a matter of this nature should be approached. In the process the Tribunal went about be approached. In the process the Tribunal went about be approached. In the process the Tribunal went about blaming the assessee and the professionals and equally the blaming the assessee and the professionals and equally the blaming the assessee and the professionals and equally the Department. To our mind, therefore, the Tribunal's order Department. To our mind, therefore, the Tribunal's order Department. To our mind, therefore, the Tribunal's order does not meet the requirement set out in law. The Tribunal meet the requirement set out in law. The Tribunal meet the requirement set out in law. The Tribunal has completely misdirected itself and has taken into has completely misdirected itself and has taken into has completely misdirected itself and has taken into account factors, tests and considerations which have no account factors, tests and considerations which have no account factors, tests and considerations which have no bearing or nexus with the issue at hand. The Tribunal, bearing or nexus with the issue at hand. The Tribunal, bearing or nexus with the issue at hand. The Tribunal, therefore, has erred in law and on Facts i therefore, has erred in law and on Facts in refusing to n refusing to condone the delay. The explanation placed on affidavit was condone the delay. The explanation placed on affidavit was condone the delay. The explanation placed on affidavit was not contested nor we find that from such explanation can not contested nor we find that from such explanation can not contested nor we find that from such explanation can we arrive at the conclusion that the assessee was at fault, we arrive at the conclusion that the assessee was at fault, we arrive at the conclusion that the assessee was at fault, he intentionally and deliberately delayed the matter and he intentionally and deliberately delayed the matter and he intentionally and deliberately delayed the matter and has no bona fide or reasonable explanation for the delay in na fide or reasonable explanation for the delay in na fide or reasonable explanation for the delay in filing the proceedings. The position is quite otherwise. filing the proceedings. The position is quite otherwise. filing the proceedings. The position is quite otherwise.” 3.2 The Ld. Counsel also relied on the decision of the Hon’ble The Ld. Counsel also relied on the decision of the Hon’ble The Ld. Counsel also relied on the decision of the Hon’ble Bombay High Court in the case of Subhkaran& Sons v. N.A. Kazi, Subhkaran& Sons v. N.A. Kazi, Bombay High Court in the case of 5th ITO and Others [1 ITO and Others [1985] 152 ITR 231 (Bombay) 985] 152 ITR 231 (Bombay) wherein the Hon’ble High Court has held that a party Hon’ble High Court has held that a party should not suffer for no not suffer for no
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fault on his part and for a sheer mistake or oversight on the part fault on his part and for a sheer mistake or oversight on the part fault on his part and for a sheer mistake or oversight on the part his legal or tax advisers. The relevant finding of the Hon’ble Bombay his legal or tax advisers. The relevant finding of the Hon’ble Bombay his legal or tax advisers. The relevant finding of the Hon’ble Bombay High Court is reproduced as under: eproduced as under:
“6. In these circumstances, the better order, and one more 6. In these circumstances, the better order, and one more 6. In these circumstances, the better order, and one more in consonance with justice, should have been to accept the in consonance with justice, should have been to accept the in consonance with justice, should have been to accept the firm's request and condone the delay in filing Form No. 11A. firm's request and condone the delay in filing Form No. 11A. firm's request and condone the delay in filing Form No. 11A. Refusal to do so resulted in technicality triumphing over Refusal to do so resulted in technicality triumphing over Refusal to do so resulted in technicality triumphing over justice. A party may not suffer for no fault on his part and justice. A party may not suffer for no fault on his part and justice. A party may not suffer for no fault on his part and for a sheer mistake or oversight on the part of his legal or for a sheer mistake or oversight on the part of his legal or for a sheer mistake or oversight on the part of his legal or tax advisers. All that was necessary for the firm to do was tax advisers. All that was necessary for the firm to do was tax advisers. All that was necessary for the firm to do was in fact by it and its partners. That the chartered in fact by it and its partners. That the chartered in fact by it and its partners. That the chartered accountants made a mis accountants made a mistake through oversight should not take through oversight should not have been considered a fatal circumstance outweighing all have been considered a fatal circumstance outweighing all have been considered a fatal circumstance outweighing all the other facts and circumstances in favour of the assessee. the other facts and circumstances in favour of the assessee. the other facts and circumstances in favour of the assessee. Though to be perfect is divine, this mortal world has not as Though to be perfect is divine, this mortal world has not as Though to be perfect is divine, this mortal world has not as yet come across one so perfect and divine yet come across one so perfect and divine as to make no as to make no mistake at all. mistake at all.” 3.3 The Ld. Counsel also relied on the decision of the Hon’ble The Ld. Counsel also relied on the decision of the Hon’ble The Ld. Counsel also relied on the decision of the Hon’ble Karnataka High Court in the case of Karnataka High Court in the case of Mrs. PremalathaPagaria v. Mrs. PremalathaPagaria v. ITO [2021] 130 taxmann.com 403 (Karnataka) ITO [2021] 130 taxmann.com 403 (Karnataka), where in where in delay of 310 days has been condoned. The releva 310 days has been condoned. The relevant finding of the Hon’ble nt finding of the Hon’ble Bombay High Court is reproduced as under: Bombay High Court is reproduced as under:
“9. In the backdrop of the well settled legal principles, the the backdrop of the well settled legal principles, the the backdrop of the well settled legal principles, the facts of the case on hand may be examined. facts of the case on hand may be examined. 10. The reasons assigned by the assessee for the delay in 10. The reasons assigned by the assessee for the delay in 10. The reasons assigned by the assessee for the delay in filing the appeal is that filing the appeal is that the impugned order dated passed the impugned order dated passed by the Commissioner of Income by the Commissioner of Income-tax (Appeals) was delivered tax (Appeals) was delivered to the assessee some time in the September 2015 and to the assessee some time in the September 2015 and to the assessee some time in the September 2015 and immediately after receipt of the said order, the assessee immediately after receipt of the said order, the assessee immediately after receipt of the said order, the assessee had supplied the order passed by the Commissioner of had supplied the order passed by the Commissioner of had supplied the order passed by the Commissioner of Income-tax (Appeals) to the office of the Auditor so far as to tax (Appeals) to the office of the Auditor so far as to tax (Appeals) to the office of the Auditor so far as to take action for filing of an appeal. It is the case of the take action for filing of an appeal. It is the case of the take action for filing of an appeal. It is the case of the assessee that the aforesaid order was not brought to the assessee that the aforesaid order was not brought to the assessee that the aforesaid order was not brought to the notice notice notice of of of the the the Chartered Chartered Chartered Accountant Accountant Accountant namely namely namely
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RAjendraKaravat by his staff, and the RAjendraKaravat by his staff, and the same remained in same remained in his office files without any action. The appellant thereupon his office files without any action. The appellant thereupon his office files without any action. The appellant thereupon made an enquiry and learnt about the fact on 7 made an enquiry and learnt about the fact on 7 made an enquiry and learnt about the fact on 7-10-2016 that the appeal has not been filed and the appellant took that the appeal has not been filed and the appellant took that the appeal has not been filed and the appellant took action to contact another Chartered Accountant and filed action to contact another Chartered Accountant and filed action to contact another Chartered Accountant and filed the appeal thereon. eal thereon. 11. The appellant in the facts and circumstances of the case 11. The appellant in the facts and circumstances of the case 11. The appellant in the facts and circumstances of the case should not suffer on account of inadvertence on the part of should not suffer on account of inadvertence on the part of should not suffer on account of inadvertence on the part of her Chartered Accountant. her Chartered Accountant. 12. Thus, in the facts and circumstances of the case, the 12. Thus, in the facts and circumstances of the case, the 12. Thus, in the facts and circumstances of the case, the assessee has made out sufficient cause assessee has made out sufficient cause to condone the to condone the delay of 310 days in filing the appeal before the Tribunal. delay of 310 days in filing the appeal before the Tribunal. delay of 310 days in filing the appeal before the Tribunal. 13. The aforementioned substantial questions of law 13. The aforementioned substantial questions of law 13. The aforementioned substantial questions of law framed by this Court is answered in favour of the assessee. framed by this Court is answered in favour of the assessee. framed by this Court is answered in favour of the assessee. 14. In the result, order dated 23 14. In the result, order dated 23-2-2017 passed by the 2017 passed by the Tribunal is h Tribunal is hereby quashed and delay in filing the appeal is ereby quashed and delay in filing the appeal is condoned.” 4. We have heard rival submission of the parties and issue We have heard rival submission of the parties and issue We have heard rival submission of the parties and issue-in- dispute and perused the relevant material on record on the issue of dispute and perused the relevant material on record dispute and perused the relevant material on record condonation of delay in filing appeal before the Ld. CIT(A). We find condonation of delay in filing appeal before the Ld. CIT(A). We fin condonation of delay in filing appeal before the Ld. CIT(A). We fin that the delay has been caused mainly due to the dispute of the that the delay has been caused mainly due to the dispute of the that the delay has been caused mainly due to the dispute of the assessee society with one of its members and thereafter in taking assessee society with one of its members and thereafter in taking assessee society with one of its members and thereafter in taking . Thereafter delay decision by the Society involving many members decision by the Society involving many members. T has occurred in filing appeal has occurred in filing appealdue to mistake on the part of due to mistake on the part of the Chartered Accountant. Relying on the decision cited above, we are Chartered Accountant. Relying on the decision cited above Chartered Accountant. Relying on the decision cited above of the opinion that there is no malafide or deliberate in action on of the opinion that there is no malafide or deliberate in action on of the opinion that there is no malafide or deliberate in action on the part of the assessee in filing the appeal with delay of 387 days the part of the assessee in filing the appeal with delay of 387 days the part of the assessee in filing the appeal with delay of 387 days before the Ld. CIT(A). Accordingly, we direct the Ld. CIT(A) to before the Ld. CIT(A). Accordingly, we direct the before the Ld. CIT(A). Accordingly, we direct the condone the delay in filing appeal before him and condone the delay in filing appeal before him and admit th admit the appeal on merit in accordance with law after considering for adjudication on merit in accordance with law after considering on merit in accordance with law after considering
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the submission of the assessee. The ground the submission of the assessee. The grounds of appeal of appeal by the assessee are allowed for statistical purposes. assessee are allowed for statistical purposes.
In the result, the appeal filed by the assessee is allowed for In the result, the appeal filed by the assessee is allowed for In the result, the appeal filed by the assessee is allowed for statistical purposes.
Order pronounced in the open Court on nounced in the open Court on 22/05/2023. /05/2023. Sd/- Sd/ Sd/- (KAVITHA RAJAGOPAL KAVITHA RAJAGOPAL) (OM PRAKASH KANT OM PRAKASH KANT) JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER Mumbai; Dated: 22/05/2023 Rahul Sharma, Sr. P.S. Copy of the Order forwarded to Copy of the Order forwarded to : 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. BY ORDER, BY ORDER, //True Copy// (Assistant Registrar) (Assistant Registrar) ITAT, Mumbai ITAT, Mumbai
