ELLORA CONSTRUCTION PVT LTD,AURANGABAD vs. DCIT CIRCLE 1, AURANGABAD, AURANGABAD

The sole grievance of the assessee is against the levy of penalty made by the Assessing Officer u/s.270A of the Act at Rs.1,09,93,606/-.

Facts of the case are that the assessee is a company and filed the return of income on 28.11.2017 declaring income of Rs.3,25,35,230/-. Case selected for scrutiny through CASS. Valid notices u/s.143(2) and 142(1) of the Act duly served upon the assessee. Ld. Assessing Officer concluding the

Before us, ld. Counsel for the assessee submitted that there was ‘reasonable cause’ which prevented the assessee to submit the appeal within the stipulated time. Therefore, a prayer is made to condone the delay before ld.CIT(A) and restore the issues raised in the instant appeal to the file of ld.CIT(A) for necessary adjudication as there was no adjudication on merits of the case.

On the other hand, ld. DR strongly opposed the submissions made by ld. Counsel for the assessee and supported the order of ld.CIT(A).

We have heard the rival submissions and perused the record placed before us. The assessee is aggrieved with the penalty levied by the Assessing Officer u/s.270A of the Act. However, we find that the assessee preferred appeal before ld.CIT(A) with delay of 343 days which was not condoned, dismissing the appeal in limine.

There is no dispute that u/s.253(5) of the Act, the Tribunal may admit an appeal filed beyond the period of

The important point is as to whether such a delay deserves condonation. At this stage, we take note of the judgment of the Hon’ble Bombay High Court in Vijay Vishin Meghani Vs. DCIT & Anr (2017) 398 ITR 250 (Bom) wherein the Hon’ble Court held that none should be deprived of an adjudication on merits unless it is found that the litigant deliberately delayed the filing of appeal. In that case, delay of 2984 days crept in due to improper legal advice. Relying on Concord of India Ins. Co. Limited VS Nirmala Devi (1979) 118 ITR 507 (SC), the Hon’ble jurisdictional High Court condoned the delay.

We have carefully examined the reasons for condonation of delay as well as the explanation tendered by the assessee. Upon a comprehensive appraisal of the facts, we find that the delay cannot be attributed either to deliberate inaction or to any lack of bona fides on the part of the assessee. The circumstances explained demonstrate that the default occurred due to reasons beyond the assessee's control and not on account of any negligence, or want of diligence. In our considered view, assessee has satisfactorily established the existence of "sufficient cause" for the delay in preferring the appeal before the First Appellate Authority. Adopting justice oriented approach and placing reliance on the judgments of Hon’ble Apex Court in the case of Collector, Land Acquisition, Anantnag & Anr. Vs. Mst. Katiji & Ors. reported in (1987) 2 SCC 107 and in the case of Inder Singh

Considering the factual matrix and the prayer made by the ld. Counsel for the assessee, the issues raised in the instant appeal are remitted back to the file of ld.CIT(A)/NFAC for afresh adjudication. Needless to mention that in the set aside proceedings ld.CIT(A)/NFAC shall provide reasonable opportunity of hearing to the assessee and pass speaking order as contemplated u/s.250(6) of the Act. Assessee is directed to update email and contact detail on the ITBA portal. Assessee is also directed to remain vigilant and not to take adjournment unless otherwise required for reasonable cause, failing which the ld.CIT(A)/NFAC shall be free to proceed in accordance with law. Impugned order of ld. CIT(A)/NFAC is set aside and effective grounds of appeal raised by the assessee are allowed for statistical purposes.

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