MARRIUM M SHAFI,MUMBAI vs. INCOME TAX OFFICER 24(2)(1), MUMBAI

Before us, the ld.AR has contented that the assessee was not accorded any opportunity to explain the said delay by the appellate authority.Attention is drawn to the order u/s.271(1)(c) of the Act where facts on record show that the assesse was not in the country to make the compliance. Without prejudice to this, CA of the assessee Shri Dinesh Gada was suffering from several ailment and his both the kidneys were not functioning and hence, was on dialysis for thrice in a week and later expired on 16.07.2018.He was of the opinion that appeal cannot be filed without consent of the appellant.

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.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 condone delay can result in a meritorious matter being thrown out at P a g e | 4 A.Y. 2010-11 Marrium M Shafi 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.

As regards merits of the case,the AR made a request to remand the entire matter to the file of the AO for necessary compliance and proper consideration of its submissions and supporting evidences. The ld.DR however, objected to such request stating that the assessee has not cited any cogent reason for non-compliance before both the authorities below.

We have duly perused the records from which it is noticed that in this case,the assessment order as also the appellate order were 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 both the authorities. We are of the considered view that the entire matter needs proper consideration by the AO.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 P a g e | 5 A.Y. 2010-11 Marrium M Shafi to support his contentions. Accordingly, in the substantial interest of justice, we set aside the appellate order and restore the entire matter back to the AO for passing the assessment order de novo after allowing adequate opportunity of hearing to the assessee.

Before parting, we may make it clear that our decision to restore the matter back to the file of the AO shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by him independently and in accordance with law.

In the result, the appeal is allowed for statistical purposes.