BHUJBAL RAMESH DAMODAR (HUF),PUNE vs. WARD 3(3) PUNE, PUNE

Based on the above information, the case of the assessee was reopened u/s. 147 of the Income Tax Act, 1961 (“the Act”) by issue of notice u/s. 148 of the Act. The assessee failed to file its return of income in response to the said notice. Statutory notices u/s. 142(1) of the Act followed by show cause notice were issued and duly served upon the assessee, however, there was no response from the side of the assessee. Due to lack of any explanation/supporting documentary evidences filed by the assessee to substantiate his claim, the Ld.AO proceeded to complete the assessment ex-parte, thereby making an addition of Rs. 19,31,400/- on account of rental income and Rs. 13,11,34,500/- on account of sale of immovable property under the provisions of section 45 of the Act, vide his order dt. 31-03-2023 passed u/s. 147 r.w.s. 144 of the Act.

Before the Ld.CIT(A)/NFAC, the appeal was filed with a delay of 225 days. In Form No.35, the assessee stated that “The assessee has received all the notices and orders over email and hence being old age not technology savvy and doesn’t check his email regularly so missed the notices as well as the order and hence delay of 225 days”. The said reason provided by the assessee for delay in filing of the appeal was not found to be constituting “sufficient/reasonable cause” by the Ld.CIT(A)/NFAC for condoning the delay in filing of the appeal. He, therefore, dismissed the appeal of the assessee in limine.

Aggrieved, the assessee is in appeal before the Tribunal, raising the following grounds of appeal:

On the law and facts and circumstances of the case, the AO and CIT(A) has erred in taxing full amount of Sale consideration as Income of the assessee.

On the law and facts and circumstances of the case, the CIT(A) has erred in rejecting the appeal of assessee on delay part without going into the merits of the case.

The appellant craves leave to add alter OR amend any OR all grounds of appeal before OR during the hearing of the appeal.”

The Ld.AR, reiterating the reasons for delay cited before the Ld.CIT(A)/NFAC, submitted that the assessee is a non-filer and came to know about passing of the assessment order only when the recovery proceedings were initiated against him. He submitted that the assessee was unaware of the notices issued to him as the assessee is an old person and did not check his e-mails/ITBA Portal on regular basis, owing to which the delay was caused in filing of the appeal before the Ld.CIT(A)/NFAC. He submitted that the assessee therefore, had no malafide intention in not filing the appeal within the due time. He further submitted that the assessee has a strong case on merits and, therefore, humbly prayed that in the interest of justice, the delay may be condoned and an opportunity may be granted to the assessee to represent and substantiate his case before the Ld.CIT(A)/NFAC by filing the requisite details/documents.

The Ld.DR, on the other hand, supported the order of the Ld.CIT(A)/NFAC.

We have heard the learned representatives of the parties and perused the material available on record. We find that the Ld.AO has completed the assessment ex-parte qua the assessee due to non- compliance of notices of hearing issued by him. The Ld.CIT(A)/NFAC has 4 dismissed the appeal of the assessee in limine on account of delay of 225 days in filing of the appeal, without considering the assessee‟s case on merits. Before us, Ld.AR has submitted that the delay in filing of the appeal was not intentional, but resulted owing to the reasons cited in the preceding paragraphs. He has therefore, humbly prayed that since the assessee has a strong case on merits, in the interest of justice, the Ld.CIT(A)/NFAC may be directed to decide the assessee‟s appeal afresh on merits, after condoning the delay in filing of the appeal.

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 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."

In the light of the decision(s) of the Hon'ble Supreme Court (supra), we hereby set aside the impugned order of the Ld. CIT(A)/NFAC and restore the matter back to his file with a direction to condone the delay in filing of the appeal before him by the assessee and decide the appeal on 5 merits as per fact and law after giving due opportunity of being heard to the parties. Needless to say, the assessee shall comply with the notices issued by the Ld. CIT(A)/NFAC and make his submissions before him on the appointed date without seeking any adjournment under any pretext, unless required for the sufficient cause, failing which the Ld. CIT(A)/NFAC shall be at liberty to pass appropriate order as per law. We hold and direct accordingly. The effective grounds raised by the assessee are accordingly allowed for statistical purposes.

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

The concerned Pr.CIT, Pune

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