KHALED MUMTAZ SAYED,MUMBAI vs. INCOME TAX OFFICER WARD 25(1)(1), MUMBAI, MUMBAI

At the very outset, I noticed that there is a delay of approximately 223 days in filing the present appeal. In this regard, the assessee has filed an affidavit explaining the reasons for the delay. Considering the entire factual position explained in the affidavit and also keeping in view the principles laid down by the Hon'ble Supreme Court in the case of Collector, Land Acquisition, Anantnag & Anr. vs. Mst. Katiji & Ors. [1987 AIR 1353 (SC)], wherein it has been held that where substantial justice is pitted against the technicalities of a non-deliberate delay, substantial justice is to be preferred, I am of the view that the principle of advancing substantial justice is of prime importance. Accordingly, considering the explanation put forth by the assessee, who has satisfactorily explained the delay that occurred in filing the present appeal, and construing the expression "sufficient cause" liberally, I am inclined to condone the delay in filing the present appeal, subject to payment of costs of Rs. 2,000/- by the assessee, which shall be deposited in the Prime Minister's National Relief Fund. Consequently, the delay is condoned and the appeal is admitted for hearing on merits.

Be that as it may, without expressing any opinion on the merits of the issues raised by the assessee, and considering the fact that the assessee could not effectively represent his case before the AO as well as the Ld. CIT(A), I am of the considered view that, in the interest of justice, one more opportunity should be afforded to the assessee to present his case before the AO.

Accordingly, having regard to the overall facts and circumstances of the case, I deem it proper to set aside the orders passed by the AO and the Ld. CIT(A) and restore the matter to the file of the AO for fresh adjudication in accordance with law after providing the assessee with adequate and reasonable opportunity of being heard. This restoration shall, however, be subject to payment of costs of Rs. 2,000/- by the assessee, which shall also be deposited in the Prime Minister's National Relief Fund. A copy of the receipts evidencing both the deposits shall be placed on record before the AO within 30 days from the date of receipt of this order.

The assessee is directed to extend full cooperation during the remand proceedings and shall not seek any adjournment on frivolous grounds.

Before parting, it is made clear that the decision to restore the matter to the file of the AO shall not be construed as expressing any opinion whatsoever on the merits of the controversy involved. The AO shall adjudicate the issues independently, uninfluenced by any observation contained in this order, and strictly in accordance with law.

Needless to mention, the AO shall provide the assessee with an adequate and effective opportunity of being heard before passing the fresh order.

In the result, the appeal filed by the assessee is allowed for statistical purposes.