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Income Tax Appellate Tribunal, PATNA BENCH AT KOLKATA
Before: SRI RAJESH KUMAR & PRADIP KUMAR CHOUBEY
order
: September 12th, 2024 ORDER
Per Pradip Kumar Choubey, Judicial Member:
The instant appeal filed by the assessee pertaining to the Assessment Year (in short ‘AY’) 2017-18 is directed against the order passed u/s 250 of the Income Tax Act, 1961 (in short the ‘Act’) by ld. Commissioner of Income- tax (Appeal)-NFAC, Delhi [in short ld. ‘CIT(A)’] dated 29.05.2023 arising out of the assessment order framed u/s 144 of the Act dated 28.11.2019. 1.1. The brief facts of the case of the appellant are that the assessee through his son Mr. Anant Kumar was running a very small shop of Common Service I.T.A. No.: 238/PAT/2023 Assessment Year: 2017-18 Arjun Kumar Sah. Centre as Vasudha Kendra at remote locality in a village of Vaishali District in Bihar that provides Aadhaar Enabled Payment System (AEPS), insurance premium, railway ticket booking, examination fee for recruitment, payment of electricity bill and receiving money from customers of Satin Credit Care Network Ltd. (CIN-I65991DL1990PLC041796) and transferred the said amount to the Satin Credit Care Network Ltd. as per client code provided to the appellant. Since the appellant is not educated so his son Mr. Anant Kumar who got the license to operate above services operated the bank account of the appellant. The income from this business was very low i.e. below the exemption limit so he did not file the ITR for the year under consideration. 1.2. The appellant did not file return of income u/s 139(1) of the Act due to the lower income which is lower than basic exemption limit. The Assessing Officer (hereinafter referred to as ld. 'AO') completed the assessment order u/s 144A of the Act and assessed the income of Rs. 85,81,397/- on account of cash deposit in the Indusind Bank during the demonetization period and cash deposited in Indusind Bank of Rs. 75,78,167/- other than demonetization as an unexplained money u/s 69A of the Act in the hands of the assessee. Before the ld. AO there was no compliance on behalf of the assessee. Accordingly, the ld. AO has added the income of Rs. 85,81,397/- u/s 69A of the Act. The said order has been challenged by the assessee before ld. CIT(A) wherein appeal of the assessee has been dismissed on account of delay as the appeal had been filed after a delay of 640 days. 1.3. The ld. Counsel for the assessee has challenges the impugned order thereby submitting that the ld. CIT(A) has erred in not condoning the delay though assessee has filed sufficient reason of delay in its petition. His sole submission is that assessee should be given an opportunity to place his entire case before the ld. CIT(A) as he had also not placed his case before the ld. AO, by condoning the delay. 1.4. The ld. D/R has supported the impugned order.
We have perused the order of the ld. AO as well as the ld. CIT(A). It is not in dispute that ld. AO has passed an order in the absence of the assessee
Page 2 of 5 I.T.A. No.: 238/PAT/2023 Assessment Year: 2017-18 Arjun Kumar Sah. as there was no compliance on behalf of the assessee although he has given sufficient opportunity. Before the ld. CIT(A), the appeal was filed after a delay of 640 days and ld. CIT(A) did not condone the delay and appeal has been dismissed. It is important to mention here that order passed on 28.11.2019 by the ld. AO and the appeal has been filed by the assessee on 30.09.2021. The ground taken by the assessee which is apparent from the ld. CIT(A)’s order that the delay is on account of illness. It is alleged by the assessee that he was suffering from health issue during that period and the doctor advised him for bed rest due to the health issue for last three years. 2.1. In this context, we have perused the several decisions of the Hon'ble Apex Court and find that in Shakuntala Devi Jain v. Kuntal Kumari [AIR 1969 SC 575], this Court reiterated the following classic statement from Krishna vs. Chathappan [1890 ILR 13 Mad 269]: "... Section 5 gives the courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words `sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant." 2.2. In N.Balakrishnan v. M.Krishnamurthy [1998 (7) SCC 123], this Court held:
"It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.
Page 3 of 5 I.T.A. No.: 238/PAT/2023 Assessment Year: 2017-18 Arjun Kumar Sah. The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice...... Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice.” 2.3. The present case at hand reveals that the order u/s 144 of the Act dated 28.11.2019 passed by ITO and the appeal has been filed on 30.09.2021. It is not in dispute that since March, 2020 the entire State of West Bengal was locked down due to the severe COVID pandemic, movement within the State was also restricted. The whole world was affected with Corona.
Keeping in view the facts of the case, cited decisions and the decision of the Hon'ble Apex Court with regard to the condonation of delay, we are of this view that assessee should be given an opportunity to place his case before the ld. CIT(A) by condoning the delay. Accordingly, the delay is hereby condoned, order of the ld. CIT(A) is hereby set aside, case is restored back to the file of ld. CIT(A) to decide the case after giving an opportunity to the assessee to place his entire case and also after hearing the assessee. It is also important to mention here that order of the ld. AO has also been passed behind the back of the assessee. The ld. CIT(A) is directed to pass a fresh order on merit.