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Facts
The assessee's appeal was filed after a delay of 193 days. The delay was attributed to the death of the assessee, Shri Mohd Ayub Gulamhasan Khan, and the subsequent lack of awareness regarding the proceedings and the order passed by the CIT(A). The appeal was filed by the legal representatives.
Held
The Tribunal condoned the delay, observing that substantial justice should be preferred over technicalities, especially when the order was passed against a deceased person without proper opportunity of hearing for the legal representatives. The matter was restored to the file of the CIT(A) for fresh adjudication.
Key Issues
Whether the delay in filing the appeal can be condoned due to the death of the assessee and lack of proper notice to legal representatives. Whether the matter should be restored to the CIT(A) for fresh adjudication.
Sections Cited
250
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Income Tax Appellate Tribunal, “SMC” BENCH, MUMBAI
Before: SHRI SANDEEP GOSAIN
Date of Hearing 29.10.2025 Date of Pronouncement 31.10.2025 ORDER PER SANDEEP GOSAIN, JM:
This appeal has been filed by the assessee challenging the different impugned order dated 28.11.2025 passed under section 250 of the Income Tax Act, 1961 (‘the Act’), by the National Faceless Appeal Centre (NFAC) / CIT(A) for the assessment year 2018-19.
At the very outset, I noticed that there is a delay of 2. 193 days in filing the present appeal and in this regard an application for seeking condonation of delay has been filed by the assessee, wherein it has been mentioned as under:
Zaid Mohd Ayub Khan, aged 36 years (PAN: BWQPK2420R), being an individual would like to affirm and state on oath and declare as under:
1. 1. That my father Late Mohd Ayub Gulamhasan Khan (PAN: AGDPK4490M) expired on 08/10/2022 at the age of 55 years.
2. I am making this affidavit for filing the appeal before the Income Tax Appellate Tribunal in respect of A.Y.2018-19 on behalf of my father who expired giving the reasons for delay in filing of an appeal and condonation of delay.
3. That my father expired on 08/10/2022 at the age of 55 years.
4. There was no one knowing about the income tax proceedings being going on in respect of my father case before CIT (Appeal), NFAC, Delhi due to untimely death of my father.
5. It was only after recovery notices start coming that we came to know about the order of CIT (Appeal) by DIN ITBA/NFAC/S/250/2024- 25/1070710309(1) dated 28/11/2024.
6. There was a delay in filling appeal before the Honorable Income tax Appellate Tribunal against the order of CIT (Appeal) due to reason out of the control of assesse.
7. I therefore submit that delay in filing of an appeal before Income Tax Appellate Tribunal may be condoned.
8. There was no intention nor was a deliberate act to delay the matter.
9. The appellant has not in any way benefited by delaying the appeal.
10. The death certificate of my father is attached. The appellant therefore request that the delay may be condoned and appeal may be admitted. Whatever stated above is true and correct to the best of my knowledge and belief
Considering the entire factual position as explained before the Bench and also keeping in view, the principles laid down by the Hon’ble Supreme Court in the case of Land Acquisition Collector Vs. Mst. Katiji& Ors., [1987] AIR 1353 (SC),wherein it has been held that where substantial justice is pitted against technicalities of non- deliberate delay, then in that eventuality substantial justice is to be preferred. In our view the principals of advancing substantial justice is of prime importance. Hence considering the explanation put forth by the Assessee by justifiably and properly explaining the delay which occurred in filing the appeal and construing the expression" sufficient cause" liberally I am inclined to condone the delay in filing the appeal before the Tribunal and admit the appeal to be heard on merits.
From the records, I noticed that the date of death as per the assessee’s death certificate is 08.10.22 and the order of Ld. CIT(A) was passed, the on 28.11.2024 i.e at the time when the order of Ld. CIT(A) was passed assessee was no more and thus the order passed was against a dead person. I also noticed that nothing has been placed before me in order to show that the information regarding the death of assessee was ever submitted or filed before Ld. Late Md. Ayub Gulamhasan Khan,. Mumbai. CIT(A) or any other revenue authorities by the legal representatives but the fact still remains that the impugned order was passed against a dead person. The present appeal has been filed by the legal representatives, who also submitted that no opportunity of hearing was provided to them.
Be that as it may, without going into the merits of the issues raised by the assessee and considering the cause, because of which legal representative of the deceased assessee could not put effective representation before Ld. CIT(A). The Bench is of the view that one more opportunity be given to the legal representative of the assessee to represent their case before the Ld. CIT(A). Therefore considering the overall circumstances of the present case, I deem it proper to restore the matter back to the file of Ld. CIT(A) for deciding the matter afresh by providing one more opportunity to the legal representative of the assessee. They are also directed to file amended Form 35 before Ld. CIT(a) and shall not seek any adjournment on unnecessary ground and shall remain cooperative during the course of proceedings.
Before parting, I make it clear that our decision to restore the matter back to the file of the Ld. CIT(A) shall in no way be construed as having any reflection or expression on the merits of the dispute which shall be adjudicated by the Ld. CIT(A) independently in accordance with law.