RAJKUMAR DUBE ,MUMBAI vs. ITO -21(3)(1), MUMBAI
Before: SHRI NARENDER KUMAR CHOUDHRYRajkumar Dube, Prakash Building 3/6, Senapati Bapat Marg, Next to Indian Bank, Dadar West, Mumbai.
Per : Narender Kumar Choudhry, Judicial Member:
This appeal has been preferred by the Assessee against the order dated
22/05/2019
impugned herein passed by the Commissioner of Income Tax (Appeals)-48, Mumbai (in short, ‘Ld.
Commissioner’) u/sec. 250 of the Income Tax Act, 1961 (in short,
‘Act’) for the A.Y. 2012-13. Rajkumar Dube
2
2. At the outset it is observed that there is delay of 2030 days as pointed out by the Registry. However, in effect after excluding the period, as excluded pertaining to the Covid-19 period from filing appeal etc. including in the Tribunal from 20.03.2020 to 22.02.2022
by the Hon’ble Apex Court in the suo motu case no. 03/2020, the effective delay would be 1312 days only. The assessee by filling medical prescriptions of his father Mr. Jagdish Dube, mother Mrs.
Dupa Dube, younger son Mr. Akash R. Dube, elder son Mr. Aman R.
Dube, wife Mrs. Sunita R. Dube and of himself, demonstrated the fact qua medical exigencies faced by the Assessee. The Assessee further while drawing attention of this Court to the invitation cards qua marriage of his niece and nephew at his native place i.e. Gonda
District Uttar Pradesh, has also tried to establish the reasonable cause. The Ld. counsel for the Assessee has also submitted that since 2019 onwards, the Assessee is suffering a lot, as not only medical exigencies he has suffered but also the assessee has lost his beloved mother on 14.09.2023. The Ld. Counsel further submitted that even otherwise, the representative of the Assessee who represented the Assessee before the Ld. Commissioner, has also suffered medically and undergone kidney transplant. The Ld.
Counsel further submitted that even otherwise one of the additions made by the AO, is not based on the substantive material and another addition to the tune of Rs.5,00,000 is an entry of cheque transfer. The Ld Counsel for the assessee at last claimed that this delay petition filed by the assessee may be considered as Mercy
Petition and considering the medical exigencies and difficulties faced by the assessee as on today as well, as the Assessee is suffering a lot and his business is also suffered because of Covid-19, therefore for substantial justice and imposing any condition, including a reasonable cost of Rs. 25,000/-, one last and final opportunity may be given, by condoning the delay.
Rajkumar Dube
3
3. On the contrary, the Ld. DR specifically drawn attention of this Court to the delay period, medical documents and events and demonstrated the gap in between. Further the Ld. DR has submitted that there is no reasonable cause, shown by the Assessee and as such the sequence of delay is not sync with documents submitted by the Assessee and therefore in any case, the delay is not liable to be condoned, as it will frustrate the entire process of law, as enshrined in statues. The Ld. DR further submitted that the Assessee has even failed to establish sufficient and plausible cause, which is mandatory for condoning the delay. The Ld. DR at last submitted that even still the delay is to be condoned, then at least cost of Rs. 1,00,000/- may be imposed.
This Court has given thoughtful consideration to the peculiar facts and circumstances of the case. No doubt, the contentions of Ld. DR to the effect that there is some gap in between the delay period, the medical history provided by the Assessee and the documents submitted by the Assessee but it is also a fact that almost all the family members of the Assessee were suffered with medical exigencies in the year 2019,2020, 2021, 2022, 2023 and lastly in 2024. As observed above, the Assessee has also lost his mother. Further, the Assessee himself, has also suffered medically and financially during and because of Covid-19. The Covid-19 period was drastic, as also considered by the Hon'ble Apex Court and that is why the Hon'ble Apex Court has excluded around 2 years’ time in filing appropriate appeal etc. before the Courts including the Tribunals. Admittedly Covid-19 is having long lasting effects, which appears from this case as well. Therefore, considering the peculiar facts and circumstances of this case for just and proper decision of the case, equitable relief, fair play, substantial justice and the facts on merit that one of the additions is based on bank entry as Rajkumar Dube
4
demonstrated by the Assessee and the principles laid down by Courts that whenever there is a conflict between substantial justice and hyper-technicality, then substantial justice should be preferred to avoid defeat for the ends of justice; Substantial justice cannot be sacrificed at the altar of technicality; An attempt should always be made to allow the matter to be contested on merits, unless mala fides are writ large on the conduct of the party, this court is inclined to condone the delay of 1312 days’ but subject to deposit of reasonable cost of Rs. 55,000/- for which the Ld. Counsel for the Assessee at this stage has voluntarily agreed to, but praying for grant of 60 days. Thus, the delay is condoned but subject to deposit of Rs. 55,000/- in the Revenue Department under ‘other head’, within 60 days from today from the date of receipt of this order.
Coming to the merits of the case, this Court observe that the in the absence of relevant reply, details and documents, which the Assessee failed to file, the issues involved also remain to be adjudicated in its right perspective and proper manner, as demonstrated by the Assessee’s Counsel; and not refuted by the Ld. DR, thus considering the peculiar facts and circumstances of the case for just and proper decision and substantial justice and fair play, this Court is inclined to remand the instant case to the file of Juri ictional Assessing Officer, suffice to by affording reasonable opportunity of being heard to the Assessee.
Thus, the case is accordingly remanded to the file of JAO for decision afresh.
It is clarified that in case of subsequent default, the Assessee shall not be entitled for any leniency. Rajkumar Dube
5
8. In the result, Assessee’s appeal is allowed for statistical purposes.
Order pronounced in the open court on 31.10.2025. (NARENDER KUMAR CHOUDHRY)
JUDICIAL MEMBER
* Disha Raut, Stenographer
Copy to: The Appellant
The Respondent
The CIT, Concerned, Mumbai
The DR Concerned Bench
////
By Order
Dy/Asstt.