NAGESH MOTIBAI DESAI,MUMBAI vs. ITO, WARD, 42(1)(3), MUMBAI

Brief facts of the case are that the assessee is an Individual in whose case, the AO made addition of Rs.79,86,562/- disallowing cost of acquisition based in the absence of supporting documents. Being aggrieved, the assessee filed an appeal before the ld. CIT(A) for the said order. There was a delay in filing in appeal of 141 days for which the assessee did not provide any reasons for the same. The appellate authority did not adjudicate the appeal on merits. It is also noticed from the appellate order that the case was fixed for hearing on as many as five Page 3 Α.Υ. 2017-18 Nagesh Motibhai Desai times but they did not elicit any response from the assessee. In the light of these facts, the CIT(A) observed that the assessee was negligent and no sufficient cause was attributed for the delay as well. Accordingly, he dismissed the appeal in limine without considering merits of the case.

Before us, the ld.AR has filed an affidavit stating the reasons for the delay mainly attributing to non-communication by the Counsel of the assessee regarding receipt of assessment order in time. It is stated that the relationship of the assessee with the counsel is strained and his services have also been discontinued. It is submitted that as soon as the assessment order was conveyed to him, he immediately filed the appeal. It is requested to condone the delay.

We find that the delay in filing of appeal though had been attributed to the Counsel before us, there was no submission made in this regard before the appellate authority. Besides, no reasons have been stated in respect of repeated non-compliance before the ld.CIT(A) during appeal proceedings. The assessee before us has also filed additional ground of appeal not raised before the appellate authority.

On careful consideration of the submissions of the assessee, we are of the considered opinion that the delay in filing of the present appeal was not intentional but due to unavoidable and sufficient cause. Page 4 Α.Υ. 2017-18 Nagesh Motibhai Desai Such a bonafide mistake should have been condoned. Moreover, the ld.CIT(A) is also not justified in dismissing the appeal on the ground of delay without affording any opportunity to the assessee to explain it which is against the principles of natural justice and also amounts to taking away a substantive right of the assessee. In this connection, reliance could be placed on the landmark decision of hon'ble Supreme Court which inter alia held in Collector, Land Acquisition v Mst. Katiji And Others- 167 ITR 471 (SC) that “ordinarily, a litigant does not stand to benefit by lodging an appeal late........Refusing to codone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated....Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.... A litigant does not stand to benefit by resorting to delay. In fact, he runs serious risk.” We therefore, condone the delay setting aside the appellate order.

We have duly perused the records from which it is noticed that in this case, the appellate order was passed without proper adjudication on merits of the case as the assessee did not submit relevant documents and evidences in support of the issues involved before the appellate authority. We are of the considered view in the interest of justice and fairplay, the entire matter needs to be properly adjudicated by the ld.CIT(A).As such, we are granting a final opportunity to the assessee to advance his arguments/submissions before the him so as to provide details in connection with the merits of the case and additional evidences, if any to support his contentions. The assessee is also granted liberty to raise any additional ground as well. Accordingly, in the substantial interest of justice, we set aside the appellate order and remand all the issues to the ld.CIT(A) for passing the appellate order afresh after allowing adequate opportunity of hearing to the assessee.

In the result, the appeal is allowed for statistical purposes. Order pronounced in the open court on 13/10/2025. SANDEEP GOSAIN (न्यायिक सदस्य /JUDICIAL MEMBER) Place: मुंबई/Mumbai दिनांक / Date 13.10.2025 Lubhna Shaikh / Steno PRABHASH SHANKAR (लेखाकार सदस्य/ACCOUNTANT MEMBER) Page 6 Α.Υ. 2017-18 Nagesh Motibhai Desai आदेश की प्रतिलिपि अग्रेषित/