GURURAJ SHASHIKANT CHIDRAWAR,NANDED vs. INCOME TAX OFFICER WARD 1, NANDED

There is a delay of 80 days in filing of the appeal before the Tribunal for which the assessee has filed a condonation application along with an affidavit, explaining the reasons for such delay. After considering the contents of the condonation application filed along with the affidavit and 2 after hearing the Ld.DR, the delay in filing of the appeal is condoned and the appeal is admitted for adjudication.

Facts of the case, in brief, are that the assessee is an individual and has not filed his return of income for the impugned assessment year. It was found from the Income Tax Business Applications (ITBA) Actionable Information Management System (AIMS) Module in multi years NMS segment that the assessee has made huge cash deposits in current account to the tune of Rs. 1,95,96,230/- and withdrawals from current account to the tune of Rs. 67,80,000/-, but had not filed his return of income. Therefore, the Assessing Officer was of the opinion that the amount of Rs. 2,63,76,230/- (Rs. 1,95,96,230/- + 67,80,000/-) has escaped from assessment within the meaning of section 147 of the Act. Accordingly, notice u/s. 148 of the Act, dt. 26-03-2021 was issued to the assessee. Thereafter, notice u/s. 142(1) of the Act was issued to the assessee on 26-11-2021. Initially there was no response from the side of the assessee to the statutory notices. Subsequently, the assessee filed certain details. After considering the same, the Assessing Officer noted that the assessee has explained the source for the cash deposits of Rs. 36,76,541/-, but has failed to furnish/establish the source for the remaining cash deposit of Rs. 1,59,19,689/-. He, therefore, considered the same as unexplained cash credit u/s. 69A r.w.s. 115BBE of the Act.

Since the assessee filed the appeal with a delay of 90 days, the Ld.CIT(A)-NFAC did not condone the delay and thereby dismissed the appeal as not admitted.

Aggrieved for such an order of the Ld.CIT(A)-NFAC, the assessee is in appeal before the Tribunal.

The Ld.Counsel for the assessee referring to para 2.1 of the order of the Ld.CIT(A)-NFAC, drew the attention of the Bench to the reasons given for delay, which is as under:

1 The current appeal is instituted against the impugned order dated 29.03.2022 u/s 147 r.w.s 144 r.w.s 144B of the Act for the AY 2017-18 vide Form No. 35 dated 28.07.2022. Thus, there is a delay of 90 days in filing of the appeal, beyond the statutorily permitted 30 days, under section 249(2) of the Act, from the service of Order/Notice of Demand. In paras/columns no. 14 and 15 of Form No. 35 the appellant has admitted to delay in filing appeal and stated the grounds for condonation of delay as under:- "The assessee received the assessment order on 25th April, 2022. The due date of filing appeal was 24th May 2022 since CIT appeal needs to be filed within 30 days. Due to medical emergencies of close relative in family the assessee could not submit the papers to council in time. After receiving reminder for penalty and demand recovery notice from the AO, he consulted the council. The council advised him to file appeal. The delay is inadvertent and the assessee is not aware of the tax litigates. He intends to pursue the appeal and submit his say. Kindly therefore condone the delay of 2 months in filing of the appeal."

The Ld.DR on the other hand, heavily relied on the orders of the Ld. CIT(A)-NFAC.

We have heard the rival arguments made by both the sides and perused the material available on record. It is an admitted fact that there is a delay in filing of the appeal by 90 days before the Ld.CIT(A)-NFAC. It is also an admitted fact that the assessee in the Form-35 has admitted the delay in filing the appeal and has explained the reasons for such delay, which is due to the medical emergencies of a close relative in the family. We find the Ld.CIT(A)-NFAC did not consider the same as reasonable cause and dismissed the appeal as un-admitted.

We find the Hon'ble Supreme Court in the case of Collector, Land Acquisition vs. Mst. Katiji & Ors. reported in 167 ITR 471 (SC) has held that when substantial justice and technical considerations are pitted against each other, 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. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and 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 merits after hearing the parties.

We find recently the Hon'ble Supreme Court in the case of Inder Singh Vs. The State of Madhya Pradesh reported in 2025 LiveLaw (SC) 339 has held as under:

There can be no quarrel on the settled principle of law that delay cannot be condoned without sufficient cause, but a major aspect which has to be kept in mind is that, if in a particular case, the merits have to be examined, it should not be scuttled merely on the basis of limitation."

However, considering the failure of the assessee to file the appeal before the Ld.CIT(A)-NFAC as well as before the Tribunal in time, cost of Rs. 5,000/- is levied on the assessee which shall be paid within a period of two months from receipt of the order, failing which the Ld.CIT(A)-NFAC shall not entertain the appeal. We hold and direct accordingly. The 5 grounds raised by the assessee are accordingly allowed for statistical purposes.

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

The concerned Pr.CIT, Pune

DR, ITAT, ‘A’ Bench, Pune 5. ग र्ड फ ईल / Guard file. आदेशानुसार/ BY ORDER, ////