HIRENKUMAR AMRUTLAL BORICHA,INDIA vs. INCOME TAX OFFICER 24(2)(1), PIRAMAL CHAMBER MUMBAI

आदेश / ORDER PERBEENA PILLAI, JUDICIAL MEMBER: Present appeal filed by the assessee arises out of the final order dated 21/12/2023 for A.Y. 2013-14 on the following grounds of appeal:- “1) General Grounds 2) Specific ground relating to addition of Rs. 10,14,681 on account of unexplained credit card expenditure by the appellant without appreciating the fact that close to 75 percent of the expenditure pertained to expenses of partnership firm Modern Plastic Industries and payment to the credit card company was directly made by the firm, for which complete banking trail is available.

ITA 2635/MUM/2026 HIRENKUMAR AMRUTLAL BORICHA 3) Specific ground relating to addition of Rs. 3,24,025 as salary income without considering the deduction of TDS on such income and that the appellant ought to have granted TDS credit of Rs. 2,692 on the same. 4) Alternative ground relating to double taxation OR computation error. Since salary income was already added by the Assessing officer as part of total income, the same was available with the Appellant to make a part of the credit card expenditure. Thus, the maximum amount of addition as unexplained expenditure could be Rs. 6,90,656, being Rs. 10,14,681 less Rs. 3,24,025.”

The assessee did not file his return of income for year under consideration as he had left India on 16.10.2012 for higher studies (MBA). After completion of his studies, he joined employment in Dubai and became a Non-Resident (NRI). Prior to leaving India, i.e., during April to August 2012, the assessee was employed with Kotak Mahindra Old Mutual Life Insurance Limited and thereafter resigned from service.

2.1. The case of the assessee was selected based on information available in the Non-Filers Monitoring System (NMS) and AIR data. As per the said information, the assessee had allegedly incurred credit card expenditure of ₹10,14,681/- and received salary income of ₹3,24,025/-. Since no return of income was filed, the Ld.AO treated the aforesaid transactions as undisclosed income and initiated reassessment proceedings by issuing notice under section 148 of the Income-tax Act, 1961 dated 27.03.2019.

2.3. In response to notices issued under section 142(1), the assessee, through his authorised representative, attended the proceedings and furnished explanations and details as called for. However, the Ld.AO did not accept the submissions and made addition of ₹13,38,706/- to the total income of the assessee.

ITA 2635/MUM/2026 HIRENKUMAR AMRUTLAL BORICHA Aggrieved by the order passed by the Ld. AO, assessee preferred appeal before the Ld.CIT(A). 3. The Ld.CIT(A), however, dismissed the appeal as assessee failed to respond to the notices issued. Aggrieved by the Order of the Ld. CIT(A), the assessee is in before the Tribunal.

4.1. It was further submitted that in Form No. 35, the assessee had duly provided his personal email ID; however, neither the notices nor the impugned order were communicated to the said registered email ID.

4.2. The Ld.AR further submitted that the assessee, during the year 2020, had also addressed a letter to the Ld.CIT(A) seeking the status of the appeal, but no response was received. It was further submitted that the assessee was unable to access the CPC portal as his Aadhaar was not linked/updated, and therefore remained unaware of the progress of the appellate proceedings. It was only in the year 2025 that the assessee came to know of the demand upon receipt of the communication on the email ID mentioned in Form No. 35.

ITA 2635/MUM/2026 HIRENKUMAR AMRUTLAL BORICHA 4.3. In these circumstances, the Ld. AR submitted that there has been a delay of 735 days in filing the appeal before the Tribunal, which was neither deliberate nor mala fide. In support, the assessee has filed an affidavit explaining the reasons for the delay and affirming that there was no intention to disregard or avoid the appellate proceedings before the Ld. CIT(A).

4.4. It was thus contended that the non-appearance before the Ld. CIT(A) was due to bona fide and reasonable cause, primarily on account of non-receipt of notices and the appellate order on the registered email ID. Accordingly, the Ld. AR prayed that the delay be condoned, the appeal be admitted, and the matter be adjudicated on merits.

4.5. On the other hand, the Ld. Departmental Representative (Ld. DR) strongly opposed the condonation of delay, submitting that sufficient opportunity had already been granted by the Ld. CIT(A) during the appellate proceedings.

We have perused the submissions advanced by both sides in light of records placed before us.

ITA 2635/MUM/2026 HIRENKUMAR AMRUTLAL BORICHA 5.1. It is submitted by the assessee, in the affidavit filed on record, that the first communication received on the email ID as mentioned in Form No. 35 was the demand notice dated 31.04.2025. Thereafter, the assessee took necessary steps to access the income-tax portal, updated his Aadhaar details, and thereafter preferred the present appeal before the Tribunal, resulting in a delay of 735 days in filing the appeal.

5.2. Having regard to the above submissions made by the assessee as well as the affidavit of Shri Hirenkumar Amrutlal Boricha, we find it appropriate to refer to the decision of the Hon’ble Cochin Bench of this Tribunal in the case of Midas Polymer Compounds Pvt. Ltd. dated 25.06.2018, wherein the Tribunal had condoned a delay of 2819 days by observing as follows:

"6. We have heard the rival submissions and perused the record. There was a delay of 2819 days in filing the appeal before the Tribunal. The assessee has stated the reasons in the condonation petition accompanied by an affidavit which has been cited in the earlier para. The assessee filed an affidavit explaining the reasons and prayed for condonation of delay. The reason stated by the assessee is due to inadvertent omission on the part of Shri Unnikrishnan Nair N, CA in taking appropriate action to file the appeal. He had a mistaken belief that the appeal for this year was filed by the assessee as there was separate Counsel to take steps to file this appeal before the ITAT. Therefore, we have to consider whether the Counsel's failure is sufficient cause for condoning the delay. The Madras High Court considered an identical issue in the case of Sreenivas Charitable Trust v. Dy. CIT (280 ITR 357) and held that mixing up of papers with other papers are sufficient cause for not filing the appeal in time. The Madras High Court further observed that the expression "sufficient cause" should be interpreted to advance substantial justice. Therefore, advancement of substantial justice is the prime factor while considering the reasons for condoning the delay. 6.1 On merit the issue is in favour of the assessee. But there is a technical defect in the appeal since the appeal was not filed within the period of limitation. The assessee filed an affidavit saying that the appeal was not filed because of the Counsel's inability to file the appeal. The Revenue has not filed any counter affidavit to deny the allegation

ITA 2635/MUM/2026 HIRENKUMAR AMRUTLAL BORICHA made by the assessee. While considering a similar issue the Apex Court in the case of Collector, Land Acquisition v. Mst. Katiji and Ors. (167 ITR 471) laid down six principles. For the purpose of convenience, the principles laid down by the Apex Court are reproduced hereunder:

(1) Ordinarily, a litigant does not stand to benefit by lodging an appeal late (2) Refusing to condone delay can result in a meritorious matter being thrown 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. (3) Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational, commonsense and pragmatic manner. (4) When substantial justice and technical consideration 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 nondeliberate delay. (5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk. (6) It must be grasped that the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

6.2 When substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right for injustice being done because of non deliberate delay. In the case on our hand, the issue on merit regarding allowability of deduction u/s. 80IB of the Act was covered in favour of the assessee by the binding Judgment of the jurisdictional High Court. Moreover, no counter-affidavit was filed by the Revenue denying the allegation made by the assessee. It is not the case of the Revenue that the appeal was not filed deliberately. Therefore, we have to prefer substantial justice rather than technicality in deciding the issue. As observed by Apex Court, if the application of the assessee for condoning the delay is rejected, it would amount to legalise injustice on technical ground when the Tribunal is capable of removing injustice and to do justice. Therefore, this Tribunal is bound to remove the injustice by condoning the delay on technicalities. If the delay is not condoned, it would amount to legalising an illegal order which would result in unjust enrichment on the part of the State by retaining the tax relatable thereto. Under the scheme of Constitution, the Government cannot retain even a single pie of the individual citizen as tax, when it is not authorised by an authority of law. Therefore, if we refuse to condone the delay, that would amount to legalise an illegal and unconstitutional order passed by the lower authority. Therefore, in our opinion, by preferring the substantial justice, the delay of 2819 days has to be condoned." 6

ITA 2635/MUM/2026 HIRENKUMAR AMRUTLAL BORICHA

5.3. In the present facts, while considering whether the reasons stated by the assessee constitute sufficient cause for condonation of delay, it is necessary to examine whether the assessee acted with due diligence and whether the delay occurred despite such diligence. It is well settled that the burden lies on the assessee to satisfactorily explain the delay, and it is not for the authorities to independently search for reasons to condone the same. The Court/Tribunal must be satisfied that a reasonable and sufficient cause has been shown.

5.4. In the present case, the assessee has explained the delay on the ground that he was under a bona fide belief that his earlier representative had duly filed and was following up the appeal. However, it was only upon receipt of recovery proceedings that the assessee realised that no appeal had in fact been filed. It is thus contended that both the assessee and his representative were under a genuine belief that necessary appellate proceedings were already initiated and being pursued.

5.5. It is further submitted that any lapse on the part of the authorised representative or manager cannot be attributed to the assessee so as to penalise him for the delay, particularly when no benefit has accrued to the assessee on account of such delay.

5.6. In People Education & Economic Development Society vs. ITO reported in 100 ITD 87 (TM) (Chennai), it was held that when substantial justice and technical considerations are pitted against each other, substantial justice deserves to prevail, as the opposite party cannot claim a vested right in injustice being perpetuated due to non-deliberate delay.

ITA 2635/MUM/2026 HIRENKUMAR AMRUTLAL BORICHA 5.7. The next question that arises is whether the delay is excessive or inordinate. In our view, once a reasonable and sufficient cause is shown, the length of delay loses its primary significance. In support, reliance may be placed on the decision of the Hon’ble Madras High Court in CIT vs. K.S.P. Shanmugavel Nadai & Ors. (153 ITR 596), wherein a delay of nearly 21 years was condoned on the finding that sufficient and reasonable cause existed. Compared to the said period, a delay of about 1000 to 2000 days cannot, by itself, be regarded as inordinate or excessive. 5.8. Further, in Sreenivas Charitable Trust (280 ITR 357), the Hon’ble Madras High Court held that no rigid formula can be laid down for condonation of delay and that Courts/Tribunals must adopt a pragmatic approach. The expression “sufficient cause” should receive a liberal construction to advance substantial justice, which is of paramount importance in the administration of justice. A similar view was reiterated in Venkatadri Traders Ltd. vs. CIT (2001) 168 CTR (Mad) 81. 5.9. We also refer to the decision of the Hon’ble Mumbai Bench of the Tribunal in Bajaj Hindusthan Ltd. vs. Jt. CIT (AT) reported in 277 ITR 1, wherein a delay of 180 days was condoned in the interest of justice. 5.10. It is further noted that where the Revenue does not file a counter-affidavit opposing the application for condonation, it may also be considered as a relevant factor, as observed by the Hon’ble Supreme Court in Mrs. Sandhya Rani Sarkar vs. Smt. Sudha Rani Debi (AIR 1978 SC 537). The Hon’ble Supreme Court has further held that non-filing of opposition does not automatically mandate condonation, but it is a relevant circumstance to be considered while exercising discretion. 8

ITA 2635/MUM/2026 HIRENKUMAR AMRUTLAL BORICHA 5.11. Hon’ble Supreme Court also observed that condonation of delay depends upon the facts of each case and that where sufficient cause is shown, delay deserves to be condoned irrespective of its duration. The discretion of the Court/Tribunal must therefore be exercised judiciously in the interest of justice. At this juncture, we also derive support from the well-settled judicial principle that procedural technicalities should not defeat substantial justice. Justice Krishna Iyer, in several pronouncements, has emphasised that any interpretation which frustrates substantive justice ought to be eschewed, and that substantive justice must prevail over procedural considerations. 5.12. A similar principle has been laid down by Hon’ble Supreme Court in Collector, Land Acquisition vs. Mst. Katiji & Ors. reported in (1987) 167 ITR 471, wherein Hon’ble Court liberalised the approach for condonation of delay and emphasised that justice- oriented approach should be preferred over hyper-technical objections. 5.13. We, therefore, find that the reasons assigned by the assessee for the inability to present the appeal within the prescribed time before the Ld. CIT(A) deserve due consideration in the light of the principles laid down by the Hon’ble Supreme Court in Collector, Land Acquisition vs. Mst. Katiji & Ors. (supra). The relevant observations of the Hon’ble Supreme Court are as under: "The Legislature has conferred the power to condone delay by enacting section 51 of the Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on de merits". The expression "sufficient cause" employed by the Legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life- purpose of the existence of the institution of courts. It is common knowledge that this court has been making a justifiably liberal approach in matters instituted in this court. But the message does not appear to have

ITA 2635/MUM/2026 HIRENKUMAR AMRUTLAL BORICHA percolated down to all the other courts in the hierarchy. And such realized that: liberal approach is adopted on principle as it is 1. Ordinarily, an appeal late. litigant does not stand to benefit by lodging 2. 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……………......... 1. Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period."

5.14. Based on the above, the interest of justice, the appeal is remitted back to the Ld.AO to decide the issue on merits of the case in accordance with law having regards to the evidences filed by the assessee. The assessee is directed to furnish all necessary evidences / documents in support of its claim. Needless to say that proper opportunity of being heard must be granted to assessee. Accordingly, the grounds raised by assessee in all the appeals stands partly allowed for statistical purposes. In the result, all the appeals filed by the assessee stands partly allowed for statistical purposes. Order pronounced in the open court on 5th June, 2026.

Sd/- Sd/-

ARUN KHODPIA BEENA PILLAI ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai Dated: 05/06/2026 SC, Sr. P.S.

ITA 2635/MUM/2026 HIRENKUMAR AMRUTLAL BORICHA

Copy to:

HIRENKUMAR AMRUTLAL BORICHA 402, STERLING APARTMENT, 1 HARBHANJI LANE, MG ROAD, GHATKOPAR EAST, MUMBAI INCOME TAX OFFICER 24(2)(1) PIRAMAL CHAMBERS, MORARJEE 2 MILLS COMPOUND, NEXT TO BHARATMATA CINEMA, LALBAUG MUMBAI MUMBAI-400012, MAHARASHTRA 3 THE PCIT / CIT, 4 THE D.R., ITAT, MUMBAIBENCH 5 GUARD FILE