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Income Tax Appellate Tribunal, “A’’ BENCH: BANGALORE
Before: SHRI CHANDRA POOJARI & SMT. BEENA PILLAI
PER CHANDRA POOJARI, ACCOUNTANT MEMBER:
This appeal by assessee is directed against order of CIT(A) for the assessment year 2018-19 dated 24.11.2021. The assessee has raised following grounds: 1. The order passed by the learned Commissioner of Income Tax (Appeals), (`CIT(A)}-11, under section 250 of the Act insofar as it is against the Appellant, is opposed to law, weight of evidence, natural justice and probabilities on the facts and circumstances of the Appellant's case. 2. The Appellant denies itself to liable to be assessed on a total income of Rs. 1,65,75,262/- as against the returned loss of (Rs. 5,25,65,0770 on the facts and circumstances of the case. 3. The learned CIT(A) erred in law in not condoning the delay in filing the appeal on the facts and circumstances of the case.
ITA No.569/Bang/2023 M/s. Meenakshi Pre Fab Concrete, Bangalore Page 2 of 6 4. The learned CIT(A) ought to have adjudicated the Appeal on the merits of the case on the facts and circumstances of the case. 5. The learned CIT(A) is not justified in holding that there was no sufficient cause for the delay in filing the Appeal before CIT(A) on the facts and circumstances of the case. 6. The impugned adjustment amounting to Rs. 6,91,40,333/- made under section 143(1)(a)(iv) of the Act is bad in law as it exceeds the limited scope to carry out prima fade adjustments stipulated under section 143(1)(a) of the Act and consequently, the adjustment made is liable to be deleted in entirety on the facts and circumstances of the case. 7. The learned Assessing officer is not justified in law in invoking the provisions of section 143(1) of the Act for making the disallowance and treating a sum of Rs. 1,65,75,262/- as income from business on the facts and circumstances of the case. 8. The learned Assessing officer is not justified in law in denying the loss in current year to be carried forward a sum of Rs. 5,25,65,077/- as claimed by the Appellant on the facts and circumstances of the case. 9. The learned Assessing officer has not provided the Appellant an opportunity to show cause vide notice under section 143(1)(a) as to why the expenditure should not be disallowed and consequently, the impugned intimation is passed in gross violation of principles of natural justice on the facts and circumstances of the case. 10. The learned Assessing Officer is not justified in disallowing a sum of Rs. 6,91,40,333/- under section 40(a)(ia) of the Act vide the impugned intimation passed under section 143(1) of the Act on the facts and circumstances of the case. 11. The Appellant craves to add, alter, modify, substitute, change and delete any or all of the grounds and to file a paper book at the time of hearing the appeal. 12. In the view of the above and other grounds that may be urged at the time of the hearing of appeal, the Appellant prays that the appeal may be allowed in the interest of justice and equity.
At the outset, it is noticed that the appeal has been filed belatedly by 561 days before this Tribunal. The assessee has filed a condonation petition stating that the order passed by ld. CIT(A) u/s 250 of the Income-tax Act,1961 ['the Act' for short] issued by e-mail on 24.11.2021 in the spam folder and the same was not pursued by
ITA No.569/Bang/2023 M/s. Meenakshi Pre Fab Concrete, Bangalore Page 3 of 6 the staff of the assessee. Subsequently, it came to the notice of the present tax counsel while verifying the status of other matters relating to the assessee in the month of July, 2023 upon which all necessary steps were taken to file an appeal immediately and the appeal was filed before this Tribunal on 7.8.2023. Further, it was submitted that the time available to the assessee to file appeal before this Tribunal is 60 days from the date of receipt of order i.e. the assessee has to file appeal on or before 24.1.2022. However, the same was filed on 7.8.2023. Thus, there was delay of 561 days i.e. from 22.1.2022 to 7.8.2023. Accordingly, the assessee filed a petition along with an affidavit and placing reliance on the following judgements: 1. Collector, Land Acquisition Vs. MST Katiji & Others (1987) 167 ITR 471 (SC) 2. Concord of India Insurance Company Ltd. Vs. Smt. Nirmala Devi & Ors. 118 ITR 507 3. Radha Krishna Rai Vs. Allahabad Bank & Others (2000) 9 SCC 733. 4. CIT & Another Vs. ISRO Satellite Centre, in ITA No.532 of 2008 dated 28.10.2011 (Karn.) 5. Smt. Shakuntala Hegde, Legal Heir of Mr. Ramakrishna Hegde Vs. ACIT in ITA No.2785/Bang/2004 dated 25.4.2006 2.1 Thus, the contention of the ld. A.R. is that the technicalities to be ignored to render substantial justice. Accordingly, prayed to take a lenient view on the delay in filing this appeal before this Tribunal. 3. On the other hand, the ld. DR submitted that the order of the ld. CIT(A) is ex-parte. More so, there was delay of 236 days in filing the appeal before ld. CIT(A). As seen from the action of the assessee, the assessee is habitual in non-complying the statutory requirements. Thus, there was not only delay in filing the appeal before ld. CIT(A) but also there was no participation of assessee in appeal proceedings before ld. CIT(A). Therefore, the assessee cannot
ITA No.569/Bang/2023 M/s. Meenakshi Pre Fab Concrete, Bangalore Page 4 of 6 take a plea that the assessee is bonafide in taking the steps to file the appeal before this Tribunal. No lenient approach to be taken in this case of the assessee and appeal shall be dismissed in limine.
We have heard both the parties and have considered the submission of the ld. AR as well as the arguments of the ld. DR on the issue. Based on the materials available on record the bench noted that the assessee prayed for condonation of delay of 561 days. The reasons placed on record has merit and we concur with the submission of the assessee. 4.1 Before us, the assessee has also made it clear that the assessee was not aware of any proceedings before ld. CIT(A). Thus, the ld. CIT(A) also passed the order ex-parte without condoning the delay of 236 days. To this effect, assessee has also filed an affidavit on oath confirming the facts stated by the assessee. Thus, the assessee has not received justice from the ld. CIT(A) as he dismissed the appeal ex- parte without condoning the delay. The further contention of the ld. A.R. is that notice issued by ld. CIT(A) for hearing before him and also ld. CIT(A)’s orders went in spam folder of the assessee’s e-mail account and therefore, the assessee did not get a fair chance to represent the case before the ld. CIT(A). The staff of the assessee not vigilant and they failed to take correct remedial measures in going through the e- mail account of the assessee. The delay was caused due to inabilities of the assessee’s staff in verifying the e-mail account of the assessee. The assessee was not going to gain any benefit because of delayed filing of the appeal before this Tribunal or ld. CIT(A) and assessee’s conduct was not contumacious. The assessee is seriously interested in prosecuting the appeal in as much as assessee had already engaged new counsel and also made requisite filing fee for filing the appeal before this Tribunal. We also find from the order of the ld. CIT(A) that assessee had filed condonation petition before the ld. CIT(A). The ld. CIT(A) has not condoned the delay and dismissed the appeal. The ld.
ITA No.569/Bang/2023 M/s. Meenakshi Pre Fab Concrete, Bangalore Page 5 of 6 A.R. of the assessee in his condonation petition relied obtained various judicial precedents wherein, the courts has considered the circumstances under which assessees were prevented in filing the appeal in time and condone the delay. As seen from the facts and circumstances of the present case, it is not unusual to receive the e- mail in the spam folder and also it is not unusual the assessee’s failure to see the e-mail account regularly as most of the assessees are not technical persons or well versed in electronic media or social media. Being so, the assessee has failed to take correct steps in the course of faceless assessment/appeal proceedings. 4.2 Thus, the delay of 561 days in filing the appeal by the assessee is to be condoned in view of the decision of the apex court decision in case of Collector, Land Acquisition vs MST Katiji, wherein 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. 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
ITA No.569/Bang/2023 M/s. Meenakshi Pre Fab Concrete, Bangalore Page 6 of 6 find that the assessee has all along acted diligently in safeguarding his legal rights and availing the remedies available to him and has acted and taken action but has sufficient reasons so as to bring this appeal. Considering the facts of the case and considering the interest of justice the delay of 561 days in bringing this appeal is condoned. Therefore, in the facts and circumstances of the present case, in our opinion, after condoning delay, it is appropriate remit the entire issue in dispute to the file of ld. CIT(A) to give an opportunity of hearing to the assessee and decide the appeal afresh even condonation of delay in filing the appeal before him. Thus, we condone the delay of 561 days in filing the appeal before us and remit the entire issue in dispute to the file of ld. CIT(A) for fresh consideration. At this stage, we refrain from commenting anything about the delay before ld. CIT(A) as well as merit of the issue raised before us. 5. In the result, appeal of the assessee is partly allowed for statistical purposes. Order pronounced in the open court on 2nd Nov, 2023
Sd/- Sd/- (Beena Pillai) (Chandra Poojari) Judicial Member Accountant Member
Bangalore, Dated 2nd Nov, 2023. VG/SPS
Copy to:
The Applicant 2. The Respondent 3. The CIT 4. The CIT(Judicial) 5. The DR, ITAT, Bangalore. 6. Guard file By order
Asst. Registrar, ITAT, Bangalore.