MD. CHIRAGUDDIN ANSARI, SURGUJA,SURGUJA vs. INCOME TAX OFFICER-1, AMBIKAPUR, AMBIKAPUR

The assessee was aggrieved with the impugned appellate order on the reasoning that the Ld. CIT(A) did not allow opportunities of being heard through video conferencing even after his specific request and dismissed the appeal ex- parte by rejecting the prayer for condonation of delay of 139 days in filing the appeal before the 1st Appellate Authority. Further, the assessee has also challenged the re-opening of assessment on the reasoning that the same was initiated without disclosing the claimed adverse material available with the Ld. Assessing Officer (‘AO’) and validity of unsigned approval under section 151 of the Act. As per the assessee, the satisfaction of reopening of case was borrowed as the same was solely based on the report of Investigation Directorate of Income Tax Department and the same was neither verified/enquired independently by the Ld. AO. The assessee has also challenged the merit of addition.

The relevant facts giving rise to this appeal are that the assessee, a non-filer of the Income Tax Return (‘ITR’) of the relevant year, had received the sums aggregating to Rs.1,66,79,220/- during the relevant year in his bank accounts maintained with Jila Sehkari Kendriya Bank Maryadit, Bajarapara, C.G. and Chattisgarh Rajya Gramin Bank, Shiv Pra Nagar, C.G. Based on the above information, the Ld. AO issued notice under section 148A9b) of the Act to the assessee to explain the nature and genuineness of the said credits. However, the same was not complied with. Therefore, the Ld. AO, inferring that the said credits aggregating to Rs.1,66,79,220/- had escaped assessment, reopened the case under section 148 of the Act. The assessee had neither filed any ITR in response to the notice under section 148 of the Act nor ensured any compliance during the assessment proceedings (as summed up under the head Synopsis of all submissions of the assessee…… on page 2-3 of the assessment order); therefore, the Ld. AO concluded the assessment ex-parte by taxing the sum of Rs.1,66,79,220/- under section 69A rws. 115BBE of the Act. Aggrieved, the assessee filed belayed appeal (139 days) before the Ld. CIT(A), who did not admit the appeal on the reasoning that the justifications submitted by the assessee for filing the belated appeal were not sufficient. Consequentially, the Ld. CIT(A) dismissed the appeal in limine. The justifications for filing belated appeal before the Ld. CIT(A) has been extracted as such at page No. 2 and 3 of the impugned appellate order.

Before us, Shri Shubham Agrawal Ld. Authorized Representative (‘AR’) of the assessee submitted that the petition of the assessee filed before the Ld. CIT(A) for condonation of delay in filing the appeal was self-speaking. On which, the Ld. CIT(A) had neither commented adversely on the facts stated therein nor he demonstrated that the content of said petition was far from realities. However, the Ld. CIT(A) was not satisfied with the justification for filing belated appeal. Hence, he rejected the delay condonation petition. The Ld. AR further submitted that the Ld. CIT(A) had not even considered the prayer of assessee to provide opportunity of being heard through video conferencing.

Shri CH. Rajeswara Reddy, Ld. Sr. DR argued the case vehemently. He placed reliance on the orders of the authorities below and submitted that there was no sufficient justification for filing belated appeal after 139 days. He prayed for dismissal of the appeal.

We have considered the facts of the case and have perused the material available on the record. The Act read with the CBDT Notification F. No. S.O. 3296 (E), dated 25-9-2020 determines the nature, extent, scope and the limitations, if any, imposed on the appellant [R.B. Jodha Mal Kuthiala 66 ITR 319 (Delhi)] and [State of Haryana Vs. Maruti Udyog Ltd. (2001) 124 STC 285(SC)]. Considering the importance of the right to appeal of the appellant assessee, since it bestows upon him an opportunity of getting a wrong undone and to mitigate the possibility of financial loss, the right to appeal should be viewed from a broad-based liberal perspective and not by applying a strict, constricted and myopic view. The decision whether the right to appeal is available in a particular circumstance should be guided by the form and not substance of the order appealed against [CIT Vs. Ashoka Engineering Co. 63 Taxman 510/194 ITR 645 (SC)]. The right of appeal is a valuable right and unless expressly taken away or abandoned, it could not be held that the appellant had abandoned or lost such right by implication [Indian Aluminium Co Ltd. Vs. CIT 162 ITR 788 (Cal.)]. The right to appeal is not merely a matter of procedure. It is a substantive right.

We have taken note of the fact that the assessee is a non-filer of ITR and has not have regular advice/assistance of Tax Advisors. The assessee is a resident of the village. We have seen the categorical observation of the Ld. CIT(A) in para 2.15 that the delay was due to deliberate inaction on the part of the assessee. But we are not able to understand the reason based on which the Ld. CIT(A) inferred that the delay in filing appeal by the assessee was a deliberate inaction on the part of the assessee. We find force in the Ld. AR’s submission that the delay in filing appeal before the Ld. CIT(A) was not due to any negligence or lack of due diligence on the part of the assessee as he was not in the knowledge of the order passed by the Ld. CIT(A) in on-line communications as the appellant assessee resided in remote area where very minimum facilities were available. In case of HL Malhotra & Company Pvt. Ltd. Vs DCIT, Circle-12, New Delhi (ITA No. 211/2020 & CM Appeals 32045-32047/2020 dated 22nd December, 2020), the Hon’ble Delhi High Court has held that in absence of anything malafide or deliberate delay as a dilatory tactic, the Court should normally condone the delay as the intent is always to promote substantial justice following the Hon’ble Supreme Court decisions in the case of Collector, Land Acquisition, Anantnag & Krishnamurthy 1998 (7) SCC 123. 8. The justification for filing belated appeal before the Ld. CIT(A) therefore, becomes relevant to determine whether the same reflects sufficient and reasonable cause on his part in not presenting that appeal within the prescribed time. In case of Collector, Land Acquisition vs MST Katiji (Supra), the Hon'ble Supreme Court has held that the expression ‘Sufficient Cause’ employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner to sub-serves the ends of justice that being the life-purpose of the existence of the institution of Courts. Similar view is echoed by various judicial decisions mentioned in the impugned order. Therefore, each case has to be dealt separately and independently in view of the content of delay condonation petition. The Ld. CIT(A) has nowhere observed that the content of delay condonation petition was false and not true. We are thus, of the considered view that a liberal approach should be adopted keeping in mind that the refusal of condonation petition in routine manner without thoroughly examining the petition can result in a meritorious matter being thrown out at the very threshold and the cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merit after hearing the parties. Another principle laid down by the Hon’ble Supreme Court in the case of Collector, Land Acquisition vs MST Katiji (Supra) is that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. It was also held by the Hon’ble Supreme Court in the case of Collector, Land Acquisition vs MST Katiji (Supra) that there is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk.

In view of the above, we are of the considered view that the assessee’s petition for delay condonation needs a fresh consideration as the LD. CIT(A) has not demonstrated that the content of delay condonation petition was false/not true and far from realities before holding that the delay was due to culpable negligence or malafide on the part of the assessee. Therefore, in the factual matrix of the present case and in the interest of substantial justice, we, therefore, keeping in view the above discussion/observations and in exercise of powers under section 254 of the Act, direct the Ld. CIT(A) to reconsider the delay condonation petition of the assessee. Therefore, considering the facts of the case. afore-stated observations and without offering any comment on merit of the case, we, in the interest of justice, deem it fit to set aside the impugned order and remit the matter back to the file of the Ld. CIT(A) to provide an opportunity of being heard to the assessee and decide the fate of the delay condonation application afresh in accordance with the above discussions/observations and thereafter, if required, the case on merit shall be decided as per the law. We order accordingly. The appellant assessee should ensure compliance during the remitted appellate proceeding before the Ld. CIT(A).

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

""थ"/ The Respondent

The Pr. CIT, Raipur (C.G.) 4. िवभागीय "ितिनिध, आयकर अपीलीय अिधकरण, रायपुर/ DR, ITAT, Raipur 5. गाड" फाईल / Guard file.