KAMAL BAPU SURYAVANSHI,GHATKOPAR MUMBAI vs. ITO WARD 27(2)(1), VASHI NAVI MUMBAI

The present appeal is delayed by 370 days. Along with the appeal, the assessee has filed an application seeking condonation of delay, duly supported by an affidavit sworn by the assessee, submitting as follows: –

We find that the reasons stated by the assessee for seeking condonation of delay fall within the parameters for grant of condonation laid down by the Hon’ble Supreme Court in the case of Collector Land Acquisition, Anantnag Vs. MST Katiji and others: 1987 SCR (2) 387. It is well established that rules of procedure are handmaid of justice. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice

In this appeal, the assessee has raised the following grounds: – “1. Condone the delay in filing Appeal - That the Hon.ble Tribunal be pleased to condone the delay of 394 days in filing the appeal, the same having occurred due to bona fide reasons beyond the control of the Appellant, including illiteracy, lack of digital access, residence at native place, and absence of knowledge of proceedings, and the delay being neither intentional nor deliberate. 2. Dismissal on Technical Ground - The learned CIT(A) erred in law and on facts in dismissing the appeal as not maintainable solely on the ground of delay, without appreciating that the delay was due to non-service of assessment and penalty orders, constituting sufficient cause under section 249(3) of the Act. 3. Violation of Principles of Natural Justice - The learned CIT(A) failed to appreciate that the penalty proceedings emanate from an ex-parte assessment us. 144, which itself was passed in violation of principles of natural justice 4. Failure to Consider Quantum Proceedings - a. The learned CIT(A) erred in ignoring the fact that the quantum addition has already been set aside by the Hon’ble ITAT and restored to the CIT(A) for fresh adjudication, thereby rendering the penalty proceedings infructuous and premature 5. Penalty Cannot Survive When Quantum Is Set Aside - a. The learned CIT(A) failed to appreciate that when the very basis of addition is unsettled and remanded, penalty us. 271(1)(c) cannot survive, as held in numerous judicial precedents 6. Non-application of Binding Judicial Precedents - a. The learned CIT(A) erred in not considering binding judgments of the Hon’ble Supreme Court holding that: i. penalty is not automatic, ii. mere non-disclosure does not amount to concealment, and ill. penalty cannot be levied on debatable OR unexamined additions. 7. Improper Exercise of Discretion - a. The learned CIT(A) adopted an unduly technical and rigid approach in rejecting condonation of delay, contrary to the

We have considered the submissions of both sides and perused the material available on record. In the present case, at the outset, it is evident that the learned CIT(A), vide impugned order, dismissed the appeal filed by the assessee on the ground of delay.

During the hearing, the learned Authorised Representative (“learned AR”), by referring to the submissions made in the affidavit, noted above, submitted that the assessee is not educated and after the sale of the impugned property in the year 2008-09, she had shifted to her native place. Accordingly, she was not aware of any notices issued during the scrutiny proceedings, and the assessment was completed under section 144 of the Act. The learned AR submitted that the assessee was also unaware of the penalty proceedings. The learned AR, during the hearing, placed on record the copy of the order passed by the Coordinate Bench of the Tribunal in assessee’s own case in quantum proceedings for the assessment year 2009-10, and submitted that under similar circumstances, the assessee’s appeal in quantum proceedings was also dismissed by the learned CIT(A) on the ground of delay and the Coordinate Bench has restored the matter to the file of the learned CIT(A) for a fresh adjudication after reconsideration of the assessee’s request for condonation of delay.

From the perusal of the order dated 22/08/2025 passed by in assessee’s quantum appeal in Kamal Bapu Suryavanshi v/s ITO, in ITA No. 6710/Mum/2024, for the assessment year 2009-10, we find that the Coordinate Bench of the Tribunal observed as follows: – “4. We have carefully considered rival submissions and examined the material on record. The central controversy pertains to whether the appeal filed on 18.03.2021 was time-barred by nearly a decade or whether it was filed within limitation reckoning the date of service of the duplicate order as 16.02.2021. 4.1 The learned CIT(A), instead of resolving this disputed question with reference to evidence and material, dismissed the appeal outright, largely on the basis of the conflicting entries in Form No. 35. Further, from the record, it is evident that the assessee did respond to the notice dated 16.10.2024 by seeking an adjournment. However, without either disposing of that request or granting a further opportunity, the learned CIT(A) chose to reject the appeal as non-maintainable on the very next day. This approach, in our considered opinion, amounts to denial of reasonable opportunity. 4.2 It is a settled principle of law that justice must not only be done but must also appear to have been done. The Hon'ble Supreme Court in State of Orissa v. Dr. Binapani Dei (AIR 1967 SC 1269) has held that even administrative orders involving civilconsequences must also conform to the rules of natural justice. In the present case, the dismissal of the appeal without properly adjudicating the condonation issue, coupled with failure to grant effective opportunity of hearing, renders the appellate order unsustainable. 4.3 In these circumstances, we deem it appropriate to set aside the order of the learned CIT(A) and restore the matter back to his file for fresh adjudication. The learned CIT(A) shall first examine, on the basis of evidence to be furnished by the assessee, whether sufficient cause exists for condonation of delay under Section 249(3) of the Act. If satisfied, he shall thereafter decide the appeal on merits, after duly considering the submissions and evidences that may be filed by the assessee. In case additional evidence is sought to be adduced, the procedure under Rule 46A of the Income-tax Rules, 1962 shall be followed. Conclusion: 4.4 In view of the foregoing, Ground No. 1 of the assessee is allowed. Since the appeal has been restored to the file of the learned CIT(A), grounds relating to merits are rendered academic at this stage and require no adjudication.”

Therefore, we are of the considered view that, in the interest of justice and fair play, the assessee be granted one more opportunity to represent its case before the learned CIT(A) and explain the reason for not filing the appeal

In the result, the appeal by the assessee is allowed for statistical purposes. Order pronounced in the open Court on 05/05/2026