ARTI SHAILEN TOPIWALA,ANDHERI WEST, MUMBAI vs. ITO, WARD 34(1)(1), MUMBAI, BKC, BANDRA EAST, MUMBAI

On the facts and NFAC erred in not c an appeal in time. T and condoned the de a) On the fac CIT(A)-NFAC e b) The appell order on meri

On the facts a NFAC erred in not co a) On facts and cir Officer erred in impo Act.

The appellant cra any of the ground of ITA No disposed off by way of this con nce. e up the appeal of the assess 71(1)(b) of the Act. The ground uced as under: d circumstances of the case and in law missing the appeal in limine and by the s 10,000 under Section 271(1)(b) of the Ac d circumstances of the case and in law, considering the reasonable and sufficien The learned CIT(A)-NFAC ought to have elay in filing of an appeal for reasonable c cts and circumstances of the case and erred in not passing an order on merit. lant submits that the CIT(A)-NFAC is dut t. and circumstances of the case and in law onsidering the following Grounds of Appea rcumstances of the case and in law, th osing a penalty of Rs. 10,000 under Sec ied even before the assessment order fore, no opportunity was provided to the a ellant submits that imposing the penalty n law. rcumstances of the case and in law, th osing penalty. not received any notice of hearing and th ance before the AO. There was a reason he AO. aves leave to add, amend, modify, substi f the appeal.” Arti Shailen Topiwala 2 o. 4383 and 4384/MUM/2025 nsolidated order see against the ds raised by the w, the learned CIT(A)- said action confirmed ct. , the learned CIT(A)- nt cause for not filing admitted the appeal cause. in law, the learned ty bound to pass an w, the learned CIT(A)- al: e learned Assessing ction 271(1)(b) of the was served on the appellant to rebut the without providing an e learned Assessing erefore there was no nable cause for non itute and / or cancel

Briefly stated, assessee filed its re declaring a total in selected for scrutiny the Income-tax Act, upon the assessee. section 142(1) of the assessment was com way of best judgment 3.1 On account of under section 142( Officer issued a sho Act on 18.01.2016, response to the said under section 271(1)( 3.2 Against the sa appeal before the lea delay of 2673 days. application for cond failed to establish ‘s accordingly rejected merits of the controve ITA No the relevant facts of the cas eturn of income electronically ncome of ₹6,38,220/-. The sa y and statutory notice under se 1961 (‘the Act’) was duly issu However, subsequent notices Act were not complied with. Co mpleted under section 144 of t t assessment, vide order dated 1 f the assessee’s non-complian 1) dated 13.10.2015, the lea ow-cause notice under section which was duly served. As notice as well, penalty of ₹10,0 (b) of the Act by order dated 29. aid penalty order, the assesse arned CIT(A) on 22.02.2024, afte The learned CIT(A), upon cons onation of delay, held that th ufficient cause’ for such inordi the appeal in limine without en ersy. Arti Shailen Topiwala 3 o. 4383 and 4384/MUM/2025 se are that the on 28.03.2015 aid return was ection 143(2) of ued and served s issued under onsequently, the the Act, i.e., by 17.03.2016. nce with notice arned Assessing 271(1)(b) of the there was no 000/- was levied 07.2016. ee preferred an er an inordinate sideration of the he assessee had inate delay and ntering into the 3.3 Aggrieved thereb In appeal before us affidavit before the upon grounds pertain record specific reaso submitted that the l liberty to file a proper 4. We have given c on condonation of d decisive; what is m advancement of sub that technicalities sh mala fides or dilatory 4.1 In the circumst ends of justice would to the assessee to re order of the Commiss The assessee shall be forth cogent reasons examine in accordan Commissioner shall p section 271(1)(b) on m ITA No by, the assessee has approache s, it is urged that the assess appellate authority, had inad ning to other proceedings and fa ons for delay in the instant m lapse was inadvertent and the r affidavit explaining the delay. consideration to the rival submi elay is well settled that length material is the sufficiency of stantial justice. Courts have co hould not defeat adjudication on y tactics are manifest. tances, we are of the considere d be better served if an opportu ectify the lapse. We accordingl sioner (Appeals) and remit the m e at liberty to file a duly sworn s for the delay, which the Com ce with law. Should the delay b proceed to adjudicate the levy o merits. Arti Shailen Topiwala 4 o. 4383 and 4384/MUM/2025 ed this Tribunal. see, while filing dvertently relied ailed to place on matter. It is now assessee seeks issions. The law h of delay is not cause and the onsistently held n merits, unless ed view that the unity is granted ly set aside the matter to his file. affidavit setting mmissioner shall e condoned, the of penalty under 4.2 The appeal is, th Ground No. 2 stands grounds, being rende 5. Now, we take u u/s 271(1)(c) of the A appeal are reproduce “1. On the fac learned CIT(A)- by the said act Section 271(1)(c 2. a) On the fa learned CIT(A)- sufficient caus CIT(A)-NFAC ou delay in filing o b) Without prej appellant for A and therefore, t

a) On the fa learned CIT(A)-N b) The appella pass an order o

On the facts learned CIT(A) Grounds of App a) On facts an erred in levying served on the provided to the submits that opportunity is b

The appella and/or cancel a 6. The relevant fac are that an assessme on 17.03.2016, wher proceedings under inaccurate particular to be filed within 30 available with the assessment order. limitation for levy o 07.09.2016, which section 271(1)(c) was ITA No d circumstances of the case and in law cer erred in imposing the penalty th g the penalty has not stated under w en initiated i.e whether the assessee s of income or furnished inaccurate herefore, the penalty levied on the b d, is bad in law. d circumstances of the case and in law icer erred in Imposing a penalty of 271(1)(c) of the Act. d circumstances of the case and in law cer erred in imposing penalty though warranted and the matter of appea as pending before the learned CIT (A). till the order is passed by the learned ly imposed the penalty though allege the appellant. In fact, the whole ass in the hands of the appellant instead nt craves leave to add, amend, mod any of the ground of the appeal.” cts, in so far as they bear upon ent under section 144 of the Act rein the Assessing Officer also i section 271(1)(c) of the Act rs of income. The appeal against days of receipt of the order, bu AO, no appeal was preferre The Assessing Officer, being of penalty, issued a show-caus remained non-complied with. accordingly imposed at 100% o Arti Shailen Topiwala 6 o. 4383 and 4384/MUM/2025 w, the learned hough, the AO which limb the has concealed particulars of basis of notice w, the learned Rs.58,48,075 w, the learned there was no al against the The AO ought d CIT(A). ed income did sessment was of her mother. dify, substitute the controversy, t was completed initiated penalty for furnishing t said order was ut as the record ed against the g conscious of se notice dated Penalty under of the tax sought to be evaded, qua 28.09.2016. 6.1 Aggrieved, the Income Tax (Appeals multiple appeals: fir the penalty order d 28.04.2017 in phys dated 17.03.2016. Th of residence owing pleaded that she wa appellate procedure. penalty orders were obtained belatedly. received the notice fo new premises and t respect of assessmen assessee further s collected certified co penalty orders but experienced enough against both the ass Thereafter, the asse advised the assesse proceeding also. Acco before the Tribunal ITA No antified at ₹58,48,075/-, vid assessee approached the Co s). The record shows that the rst on 27.04.2017 in electronic dated 28.09.2016 was specifie sical form, challenging the as he assessee attributed the confu to redevelopment of premise as ill-advised by a consultant in It was submitted that both a e passed ex parte, and certifi The assessee further subm or outstanding demand by the n then only the assessee realized nt and penalty had been passe submitted that immediately opies of the assessment order the tax consultant of the ass to file an appeal and so she f sessment order as well as the essee met with another tax c ee to file a separate appeal a ordingly, as per his advice, an a l on 22.02.2024 i.e. third ap Arti Shailen Topiwala 7 o. 4383 and 4384/MUM/2025 de order dated ommissioner of e assessee filed c form, wherein ed; second, on sessment order usion to shifting es, and further nexperienced in assessment and ied copies were mitted that she notice server on d that order in ed ex-parte. The thereafter she as well as the sessee was not filed one appeal e penalty order. consultant, who against penalty appeal was filed ppeal. On this premise, the assess subsequent third app order. 6.2 This is the pres Ld. CIT(A) holding th The Commissioner ( that the delay of 267 no ‘sufficient cause’ casual approach an constitute justificatio that negligence, inact as sufficient cause. reproduced as under “2.4 I have ca assessee and 27.10.2016 to2 furnished follow

5 When an Appellant nee exceptional circ able to demon obstructed his limit. Thus, the upon on the fac

6 The next inordinate. I h submissions of appeal by 267 delay involved per se could position of law condoned, and taken in terms inordinate dela delay. The de because the ap merely out of b the indulgence the shadow of guilty of neglig contemplation o ITA No ders were delivered to her old addre unserviceableis not tenable, as can the Form 35 that the appellant hers ty order was passed was received on e first time the appeal on referring to back on 27.04.2017, i.e. around6 yea stitution of this appeal. Appellant did ures even if a defective appeal was file Also, as on date, as per appellant's appeals pending for the same asse case, and no effort has been shown w one of such duplicate appeals. App e of her own casual approach to lega donation on the same ground. I do use for a delay of 2673 days which c cause or any factors beyond the c appeal is filed beyond the statut ds to provide a valid reason of cumstances for the delay. The appe nstrate that there was sufficient action to file Appeal beyond the pr e condonation of delay is not automati cts of the case. question arises whether delay was ave considered the submissions and f the appellant. As far as the delay 73 days is concerned, one has to a is inordinate and not marginal. Pers not constitute a reasonable cause, w that it is only marginal delays d not inordinate delays. A liberal view s of delay of few days. However, w ay, one should be very cautious while elay of 2673 dayscannot be cond ppellant's case is hard and calls for benevolence to the party seeking relie and condoning the delay, it must be p doubt that the appellant was diligen gence whatsoever. The sufficient cau of the limitation provision must be a c Arti Shailen Topiwala 9 o. 4383 and 4384/MUM/2025 ess, hence the be seen from self mentioned n 28.09.2016, such an order ars back, from d not take any ed allegedly in own assertion essment order to be made to pellant cannot al proceedings o not see any can be termed control of the tory limit, the f demonstrate ellant must be cause" which rescribed time ic but is based s excessive or d perused the y in filing the admit that the onal problems it is settled that can be w ought to be when there is condoning the doned simply r sympathy or ef. In granting proved beyond t and was not use within the cause which is beyond the con The Supreme C AIR 1962 SC 3 the appeal wh avoided canno limitation provi bona fides can of the provision justice. Seeker present case, th any good and s are not properly condoning suc negligence and very well avoi Further the app were made for appellant to fil under the Act u cause from filin

Before us the Ld slightly different fact in the appeal filed format, the date of th i.e. penalty order u/ filed in physical fo mentioned was 17.03.2017) and th assessment order w submitted that the proceedings was uph the Tribunal has re CIT(A), and which is ITA No ntrol of the party invoking the aid of t Court in the case of Ramlal v. RewaC 361 has held that the cause for the hich by due care and attention cou t be a sufficient cause within the m ision. Where no negligence, nor inactio n be imputed to the appellant a libera ns has to be made in order to advan rs of justice must come with clean h he reasons advanced by the appellan sufficient reason to condone the delay y explained by the appellant. There is ch delay in this case. The delay is d inaction of the appellant which cou ided by the exercise of due care a pellant has not shown from record th r filing of the appeal on time. It is th le the appeal within the stipulated unless the appellant is prevented by ng of the appeal in time.” . counsel for the assessee how ts. Ld. counsel for the assessee by the assessee on 27.04.201 he order challenged mentioned w s 271(1)(c) of the Act. Whereas ormat on 28.02.2017, the or 17.03.2016 (inadvertently hus in the said physical ap was challenged. Ld. counsel fo appeal of the assessee agains held by ld. counsel however, on stored the matter back to the s still pending for adjudication. Arti Shailen Topiwala 10 o. 4383 and 4384/MUM/2025 the provisions. Coalfields Ltd., delay in filing uld have been meaning of the on, or want of al construction ce substantial hands. In the nt do not show ys. The delays s no reason for s nothing but uld have been and attention. hat any efforts he duty of the time provided y a reasonable wever submitted submitted that 17 in electronic was 28.09.2016 s, in the appeal rder challenged mentioned as ppeal quantum or the assessee st the quantum n further appeal e file of the Ld. . He specifically submitted that secon disposed of by Ld. CI on the part of the t same grounds of a assessee was advise u/s. 271(1)(c) of the and therefore accord 2673 days in filing incorrect advice on th well versed with th submitted that asses the part of the chart submitted that the d should be condoned CIT(A) has not decid should be sent back since quantum proce Ld. CIT(A) and there matter may be restor counsel for the as 27.04.2017 was, in 28.09.2016, and the should not have be submitted that the e confusion arose onl ITA No nd appeal in respect of the 27 IT(A). He submitted that in view tax consultant in filing in both ppeal related to the quantum ed to file a separate appeal ag e Act, which the assessee filed ding to ld. counsel for the asses the present appeal was on he part of the consultant who w he process of filing appeal. Th ssee should not be penalized for tered accountant. The Ld. coun delay in filing the appeal before . Ld. counsel alternatively sub ded the issue on merit and t k to him. He alternatively also eeding has been restored back t efore this appeal cannot be su red back to the file of Ld. CIT(A sessee contended that the a fact, directed against the pena erefore the subsequent appeal een rejected as barred by lim earlier appeal was never dispo ly because grounds therein r Arti Shailen Topiwala 11 o. 4383 and 4384/MUM/2025 71(1)(c) has not w of the mistake h those appeals m addition, the gainst the order on 22.02.2024 ssee the delay of account of the was new and not he Ld. counsel any mistake on nsel accordingly e the Ld. CIT(A) bmitted that Ld. therefore appeal submitted that to the file of the urvived and the A). The learned appeal filed on alty order dated l of 22.02.2024 mitation. It was sed of, and the referred to the quantum assessment be penalised for mist in view of the Full B Mohd. Farhan A. Sha penalty was unsusta 271(1)(c) read with s strike off the irrele submitted that the a order passed by the CIT(A) should be uph 8. We have heard r relevant material on appeal as unadmitte in explaining the dela is admitted, the issue issue before us is n assessee’s appeal w entertained at all. Fr find that in the case been passed on 17.0 book 8-10. Thereafte levied on 28.09.2016 assessee contested th by the assessee on 2 been filed by the as ITA No t. It was further urged that an a akes of a tax consultant, and th Bench judgment of the Bombay aikh v. DCIT [125 taxmann.com ainable ab initio as the notice section 274 of the Act was vagu evant portion. The Ld. DR on assessee failed to point out any Ld. CIT(A) and therefore the o held. rival submission of the parties a record. We find that Ld. CIT(A) d in view of the failure on the p ay in filing the appeal. Therefor e on merit cannot be decided, t ot the merits of the penalty, b was maintainable or ought rom the facts and evidences file of assessee the assessment ord 03.2016, a copy of which is p er penalty u/s 271(1)(c) of the 6. Both orders have been passe hat certified copy of those order 23.02.2017 and thereafter the t ssessee. The first appeal was Arti Shailen Topiwala 12 o. 4383 and 4384/MUM/2025 assessee cannot hat in any event, y High Court in 253 (Bom.)], the e under section ue and failed to n the contrary y mistake in the order of the Ld. and perused the has rejected the part of assessee re till the appeal hus, the central but whether the to have been ed before us, we der u/s 144 has placed on paper e Act has been ed ex-parte. The rs were received two appeals had on 27.04.2017

1 On perusal of t filed, we find that ITA No ronically. For ready reference, th is reproduced as under: he details of the order against date of the order has been Arti Shailen Topiwala 13 o. 4383 and 4384/MUM/2025 he relevant form which appeal is n mentioned as 28.09.2016. In colu mentioned as 28.09 respect of the levy o appeal filed on 27.04 order. Thus, the mat 27.04.2017 specific 28.09.2016. 8.2. The second a 28.04.2017 which is 35 available on paper

3. In the this form as u/s 144 dated 1 inadvertently menti 17.03.2016 and thu assessment proceedin 8.4. But in both the quantum assessmen proceeding was uphe has restored the mat still pending for adju assessee. 8.5 Subsequently, o assessee filed one m 271(1)(c) of the Act 2673 days in filing rejected by the Ld. CI is directed against th exist two appeals on filed within limita dismissing the later earlier appeal, which 9. Now, the question file two appeals again Act. The plea of the l the assessee in 2017 ITA No No. 35 , order challenged has b 7.03.2016 (sic). The date of ioned whereas order u/s us, this appeal was against ngs. e appeals ground raised were in nt addition. The appeal aga eld by Ld. CIT(A) but on furthe tter back to the file of the Ld. C udication as stated by the ld C on advice of the another tax more appeal against levy of the on 22.02.2024. Evidently, ther g said appeal and therefore s IT(A). The subsequent appeal da he same order. It is evident, ther n the same cause, one of whic ation. The Commissioner (A appeal, did not advert to or remains pending. before us arise as to whether t nst the same penalty order u/s ld. counsel before us is that the 7 against the penalty has not b Arti Shailen Topiwala 15 o. 4383 and 4384/MUM/2025 been mentioned 2017 has been 144 is dated t the quantum n respect of the ainst quantum er appeal ITAT CIT(A), which is Counsel for the consultant the e penalty of the re was delay of same has been ated 22.02.2024 efore, that there h was probably Appeals), while dispose of the he assessee can 271(1)(c) of the e appeal filed by een adjudicated and therefore the sa the subsequent appe condoning the delay counsel the charter proper format and should be treated as that no order has bee filed earlier in respec 10. We however do n for the assessee to tr order as infructuous has been dismissed was some mistake i challenged in appeal the date of the penalt was no confusion as or penalty order a mistakenly mentione considered opinion, o 28.09.2016 was lodg subsequent appeal f proper course would take cognizance of probably within lim grounds, and adjudic ITA No me has rendered as infructuou al filed on 22.02.2024 should b y in filing the appeal. Accord red accountant failed in filing therefore earlier appeal filed s infructuous. Ld. counsel how en passed by the Ld. CIT(A) in r t of the penalty order. not agree with the contention of reat the earlier appeal filed aga s unless the assessee shows th by the Ld. CIT(A). We unders in raising the grounds but th l was specified as date 28.09 ty order u/s 271(1)(c) of the Act to the said appeal was against and the ground of the qua ed could be rectified by the a once an appeal against the pen ged on 27.04.2017 probably w filed after 2673 days became d have been for the Commission the appeal filed on 27.04.20 mitation, permit rectification cate the matter on merits. The a Arti Shailen Topiwala 16 o. 4383 and 4384/MUM/2025 us and therefore be admitted after ding to the Ld. g the appeal in against penalty wever submitted espect of appeal the Ld. counsel ainst the penalty hat said appeal tand that there e date of order .2016, which is , therefore there quantum order antum addition assessee. In our alty order dated within time, the redundant. The ner (Appeals) to 017 , which is of defects in assessee cannot be left remediless me or filing, especially w time. 11. The law on cond lean towards a libera an inordinate and u matter of course. Ho within limitation, the cannot obliterate th justice requires th Commissioner (Appea other to be adjudicate 12. Accordingly, th (Appeals) is set asid direction to consider 22.02.2024 as redu 27.04.2017, examinin required, on its meri contentions of the p under section 274 adjudication. ITA No erely because of inadvertent er when the statutory remedy was i donation of delay is well settled al approach where sufficient cau unexplained delay cannot be owever, where an appeal is dem e rejection of a subsequent appe he earlier appeal. The interest hat both appeals be place als), one to be treated as infruc ed on merits. he impugned order of the de. The matter is remitted to r both appeals together, treatin undant, and to dispose of ng whether it was within limita its in accordance with law. Nee parties, including the plea of as raised before us, shall re Arti Shailen Topiwala 17 o. 4383 and 4384/MUM/2025 rrors in drafting n fact availed in d: though courts use is made out, condoned as a monstrably filed eal on limitation t of substantial ed before the ctuous, and the Commissioner his file with a ng the appeal of the appeal of ation and then if dless to say, all defective notice emain open for 13. Ground No. 2 purposes. Other grou academic at present. 14. In the result bot statistical purpose. Order pronoun (SANDEEP G JUDICIAL M Mumbai; Dated: 26/08/2025 Disha Raut, Stenographer