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

4. On the facts and circumstances of the case and in law, the learned CIT(A) On the facts and circumstances of the case and in law, the learned CIT(A) On the facts and circumstances of the case and in law, the learned CIT(A)- NFAC erred in not considering the following Grounds of Appeal: NFAC erred in not considering the following Grounds of Appeal: NFAC erred in not considering the following Grounds of Appeal: a) On facts and circumstances of the case and in law, the learned Assessing a) On facts and circumstances of the case and in law, the learned As a) On facts and circumstances of the case and in law, the learned As Officer erred in imposing a penalty of Rs. 10,000 under Section 271(1)(b) of the Officer erred in imposing a penalty of Rs. 10,000 under Section 271(1)(b) of the Officer erred in imposing a penalty of Rs. 10,000 under Section 271(1)(b) of the Act. The penalty is levied even before the assessment order was served on the The penalty is levied even before the assessment order was served on the The penalty is levied even before the assessment order was served on the appellant and therefore, no opportunity was provided to the appellant to rebut the appellant and therefore, no opportunity was provided to the appellant to rebut the appellant and therefore, no opportunity was provided to the appellant to rebut the allegation. The appellant submits that imposing the penalty without providing an ation. The appellant submits that imposing the penalty without providing an ation. The appellant submits that imposing the penalty without providing an opportunity is bad in law. opportunity is bad in law. b) On facts and circumstances of the case and in law, the learned Assessing b) On facts and circumstances of the case and in law, the learned Assessing b) On facts and circumstances of the case and in law, the learned Assessing Officer erred in imposing penalty. Officer erred in imposing penalty. The appellant had not received any notice The appellant had not received any notice of hearing and therefore there was no of hearing and therefore there was no question of attendance before the AO. question of attendance before the AO. There was a reasonable cause for non There was a reasonable cause for non appearance before the AO. appearance before the AO.

5. The appellant craves leave to add, amend, modify, substitute and / or cancel The appellant craves leave to add, amend, modify, substitute and / or cancel The appellant craves leave to add, amend, modify, substitute and / or cancel any of the ground of the appeal.” any of the ground of the appeal.

Arti Shailen Topiwala 3 No. 4383 and 4384/MUM/2025

3.1 On account of the assessee’s non On account of the assessee’s non-compliance with notice compliance with notice under section 142(1) dated 13.10.2015, the learned Assessing under section 142(1) dated 13.10.2015, the learned Assessing under section 142(1) dated 13.10.2015, the learned Assessing Officer issued a show Officer issued a show-cause notice under section 271(1)(b) of the cause notice under section 271(1)(b) of the Act on 18.01.2016, which was duly served. As there was no 18.01.2016, which was duly served. As there was no 18.01.2016, which was duly served. As there was no response to the said notice as well, penalty of response to the said notice as well, penalty of ₹10,000/ 10,000/- was levied under section 271(1)(b) of the Act by order dated 29.07.2016. under section 271(1)(b) of the Act by order dated 29.07.2016. under section 271(1)(b) of the Act by order dated 29.07.2016.

3.2 Against the said penalty order, the assessee preferred an Against the said penalty order, the assessee preferred an Against the said penalty order, the assessee preferred an appeal before the learned CIT(A) on 22.02.2024, after an inordinate re the learned CIT(A) on 22.02.2024, after an inordinate re the learned CIT(A) on 22.02.2024, after an inordinate delay of 2673 days. The learned CIT(A), upon consideration of the delay of 2673 days. The learned CIT(A), upon consideration of the delay of 2673 days. The learned CIT(A), upon consideration of the application for condonation of delay, held that the assessee had application for condonation of delay, held that the assessee had application for condonation of delay, held that the assessee had failed to establish ‘sufficient cause’ for such inordinate delay and failed to establish ‘sufficient cause’ for such inordinate delay and failed to establish ‘sufficient cause’ for such inordinate delay and accordingly rejected the appeal accordingly rejected the appeal in limine without entering into the without entering into the merits of the controversy. merits of the controversy.

Arti Shailen Topiwala 4 No. 4383 and 4384/MUM/2025 3.3 Aggrieved thereby, the assessee has approached this Tribunal. Aggrieved thereby, the assessee has approached this Tribunal. Aggrieved thereby, the assessee has approached this Tribunal. In appeal before us, it is urged that the assessee, while filing In appeal before us, it is urged that the assessee, while filing In appeal before us, it is urged that the assessee, while filing affidavit before the appella affidavit before the appellate authority, had inadvertently relied te authority, had inadvertently relied upon grounds pertaining to other proceedings and failed to place on upon grounds pertaining to other proceedings and failed to place on upon grounds pertaining to other proceedings and failed to place on record specific reasons for delay in the instant matter. It is now record specific reasons for delay in the instant matter. It is now record specific reasons for delay in the instant matter. It is now submitted that the lapse was inadvertent and the assessee seeks submitted that the lapse was inadvertent and the assessee seeks submitted that the lapse was inadvertent and the assessee seeks liberty to file a proper affidavit explaining the delay. proper affidavit explaining the delay.

4.1 In the circumstances, we are of the considered view that the In the circumstances, we are of the considered view that the In the circumstances, we are of the considered view that the ends of justice would be b ends of justice would be better served if an opportunity is granted etter served if an opportunity is granted to the assessee to rectify the lapse. We accordingly set aside the to the assessee to rectify the lapse. We accordingly set aside the to the assessee to rectify the lapse. We accordingly set aside the order of the Commissioner (Appeals) and remit the matter to his file. order of the Commissioner (Appeals) and remit the matter to his file. order of the Commissioner (Appeals) and remit the matter to his file. The assessee shall be at liberty to file a duly sworn affidavit setting The assessee shall be at liberty to file a duly sworn affidavit setting The assessee shall be at liberty to file a duly sworn affidavit setting forth cogent reasons for the delay, which the Commissioner shall cogent reasons for the delay, which the Commissioner shall cogent reasons for the delay, which the Commissioner shall examine in accordance with law. Should the delay be condoned, the examine in accordance with law. Should the delay be condoned, the examine in accordance with law. Should the delay be condoned, the Commissioner shall proceed to adjudicate the levy of penalty under Commissioner shall proceed to adjudicate the levy of penalty under Commissioner shall proceed to adjudicate the levy of penalty under section 271(1)(b) on merits. section 271(1)(b) on merits.

Arti Shailen Topiwala 5 No. 4383 and 4384/MUM/2025 4.2 The appeal is, therefore, allo The appeal is, therefore, allowed to the extent indicated above. wed to the extent indicated above. Ground No. 2 stands allowed for statistical purposes; the remaining Ground No. 2 stands allowed for statistical purposes; the remaining Ground No. 2 stands allowed for statistical purposes; the remaining grounds, being rendered academic, grounds, being rendered academic, are dismissed as infructuous. are dismissed as infructuous.

by the assessee in its raised by the assessee in its appeal are reproduced as under: appeal are reproduced as under: “1. On the facts and circumstances of the case and in law, the 1. On the facts and circumstances of the case and in law, the 1. On the facts and circumstances of the case and in law, the learned CIT(A)- -NFAC erred in dismissing the appeal in limine and NFAC erred in dismissing the appeal in limine and by the said action confirmed penalty levied of Rs.58 by the said action confirmed penalty levied of Rs.58,48,075 under ,48,075 under Section 271(1)(c) of the Act. Section 271(1)(c) of the Act. 2. a) On the facts and circumstances of the case and in law, the a) On the facts and circumstances of the case and in law, the a) On the facts and circumstances of the case and in law, the learned CIT(A)- -NFAC erred in not considering the reasonable and NFAC erred in not considering the reasonable and sufficient cause for not filing an appeal in time. The learned sufficient cause for not filing an appeal in time. The learned sufficient cause for not filing an appeal in time. The learned CIT(A)-NFAC ought to NFAC ought to have admitted the appeal and condoned the have admitted the appeal and condoned the delay in filing of an appeal for reasonable cause. delay in filing of an appeal for reasonable cause. b) Without prejudice to above, the quantum appeal filed by the b) Without prejudice to above, the quantum appeal filed by the b) Without prejudice to above, the quantum appeal filed by the appellant for A.Y. 2013 appellant for A.Y. 2013-14 has been set aside by the hon'ble ITAT 14 has been set aside by the hon'ble ITAT and therefore, the penalty does and therefore, the penalty does not stand on its own leg. not stand on its own leg. 3. a) On the facts and circumstances of the case and in law, the a) On the facts and circumstances of the case and in law, the a) On the facts and circumstances of the case and in law, the learned CIT(A)-NFAC erred in not passing an order on merit. NFAC erred in not passing an order on merit. NFAC erred in not passing an order on merit. b) The appellant submits that the CIT(A) b) The appellant submits that the CIT(A)-NFAC is duty bound to NFAC is duty bound to pass an order on merit. pass an order on merit.

4. On the facts On the facts and circumstances of the case and in law, the and circumstances of the case and in law, the learned CIT(A) learned CIT(A)-NFAC erred in not considering the following NFAC erred in not considering the following Grounds of Appeal: Grounds of Appeal: a) On facts and circumstances of the case and in law, the AO a) On facts and circumstances of the case and in law, the AO a) On facts and circumstances of the case and in law, the AO erred in levying a penalty even before the assessment order was erred in levying a penalty even before the assessment order was erred in levying a penalty even before the assessment order was served on the appellant and therefore, no opportunity was d on the appellant and therefore, no opportunity was d on the appellant and therefore, no opportunity was provided to the appellant to rebut the allegation. The appellant provided to the appellant to rebut the allegation. The appellant provided to the appellant to rebut the allegation. The appellant submits that imposing the penalty without providing an submits that imposing the penalty without providing an submits that imposing the penalty without providing an opportunity is bad in law. opportunity is bad in law.

Arti Shailen Topiwala 6 No. 4383 and 4384/MUM/2025 b) On facts and circumstances of the case and in law, the learned b) On facts and circumstances of the case and in law, t b) On facts and circumstances of the case and in law, t Assessing Officer erred in imposing the penalty though, the AO Assessing Officer erred in imposing the penalty though, the AO Assessing Officer erred in imposing the penalty though, the AO while initiating the penalty has not stated under which limb the while initiating the penalty has not stated under which limb the while initiating the penalty has not stated under which limb the penalty has been initiated penalty has been initiated i.e whether the assessee has concealed i.e whether the assessee has concealed the particulars of income or furnished inaccurate particulars of the particulars of income or furnished inaccurate p the particulars of income or furnished inaccurate p income and therefore, the penalty levied on the basis of notice income and therefore, the penalty levied on the basis of notice income and therefore, the penalty levied on the basis of notice which is invalid, is bad in law. which is invalid, is bad in law. c) On facts and circumstances of the case and in law, the learned c) On facts and circumstances of the case and in law, the learned c) On facts and circumstances of the case and in law, the learned Assessing Officer erred in Imposing a penalty of Rs.58,48,075 Assessing Officer erred in Imposing a penalty of Rs.58,48,075 Assessing Officer erred in Imposing a penalty of Rs.58,48,075 under Section 27 under Section 271(1)(c) of the Act. d) On facts and circumstances of the case and in law, the learned d) On facts and circumstances of the case and in law, the learned d) On facts and circumstances of the case and in law, the learned Assessing Officer erred in imposing penalty though there was no Assessing Officer erred in imposing penalty though there was no Assessing Officer erred in imposing penalty though there was no addition was warranted and the matter of appeal against the addition was warranted and the matter of appeal against the addition was warranted and the matter of appeal against the assessment was pending before the learned CIT assessment was pending before the learned CIT (A). The AO ought (A). The AO ought to have waited till the order is passed by the learned CIT(A). to have waited till the order is passed by the learned CIT(A). to have waited till the order is passed by the learned CIT(A). The AO wrongly imposed the penalty though alleged income did The AO wrongly imposed the penalty though alleged income did The AO wrongly imposed the penalty though alleged income did not belong to the appellant. In fact, the whole assessment was not belong to the appellant. In fact, the whole assessment was not belong to the appellant. In fact, the whole assessment was wrongly made in the hands of the appellant wrongly made in the hands of the appellant instead of her mother. instead of her mother.

5. The appellant craves leave to add, amend, modify, substitute 5. The appellant craves leave to add, amend, modify, substitute 5. The appellant craves leave to add, amend, modify, substitute and/or cancel any of the ground of the appeal.” and/or cancel any of the ground of the appeal.”

Arti Shailen Topiwala 7 No. 4383 and 4384/MUM/2025 to be evaded, quantified at to be evaded, quantified at ₹58,48,075/-, vide order dated , vide order dated 28.09.2016. 6.1 Aggrieved, the assessee approached the Commissioner of Aggrieved, the assessee approached the Commissioner of Aggrieved, the assessee approached the Commissioner of Income Tax (Appeals). The record shows that the assessee filed Income Tax (Appeals). The record shows that the assessee filed Income Tax (Appeals). The record shows that the assessee filed multiple appeals: first on 27.04.2017 in electronic form, wherein multiple appeals: first on 27.04.2017 in electronic form, wherein multiple appeals: first on 27.04.2017 in electronic form, wherein the penalty order dated 28.09.2016 was specified; second, on the penalty order dated 28.09.2016 was specified; second, on the penalty order dated 28.09.2016 was specified; second, on 28.04.2017 in physical form, challenging the assessment order in physical form, challenging the assessment order in physical form, challenging the assessment order dated 17.03.2016. The assessee attributed the confusion to shifting dated 17.03.2016. The assessee attributed the confusion to shifting dated 17.03.2016. The assessee attributed the confusion to shifting of residence owing to redevelopment of premises, and further of residence owing to redevelopment of premises, and further of residence owing to redevelopment of premises, and further pleaded that she was ill pleaded that she was ill-advised by a consultant inexperienced in advised by a consultant inexperienced in appellate procedure. It was submitted that both assessment and procedure. It was submitted that both assessment and procedure. It was submitted that both assessment and penalty orders were passed ex parte, and certified copies were penalty orders were passed ex parte, and certified copies were penalty orders were passed ex parte, and certified copies were obtained belatedly. The assessee further submitted that she obtained belatedly. The assessee further submitted that she obtained belatedly. The assessee further submitted that she received the notice for outstanding demand by the notice server on received the notice for outstanding demand by the notice server on received the notice for outstanding demand by the notice server on new premises and then only the assessee realized that order in and then only the assessee realized that order in and then only the assessee realized that order in respect of assessment and penalty had been passed ex-parte. The respect of assessment and penalty had been passed ex respect of assessment and penalty had been passed ex assessee further submitted that immediately thereafter she assessee further submitted that immediately thereafter she assessee further submitted that immediately thereafter she collected certified copies of the assessment order as well as the collected certified copies of the assessment order as well as the collected certified copies of the assessment order as well as the penalty orders but the tax consultant of the assessee was not t the tax consultant of the assessee was not t the tax consultant of the assessee was not experienced enough to file an appeal and so she filed one appeal experienced enough to file an appeal and so she filed one appeal experienced enough to file an appeal and so she filed one appeal against both the assessment order as well as the penalty order. against both the assessment order as well as the penalty order. against both the assessment order as well as the penalty order. Thereafter, the assessee met with another tax consultant, who Thereafter, the assessee met with another tax consultant, who Thereafter, the assessee met with another tax consultant, who advised the assessee advised the assessee to file a separate appeal against penalty to file a separate appeal against penalty proceeding also. Accordingly, as per his advice, an appeal was filed proceeding also. Accordingly, as per his advice, an appeal was filed proceeding also. Accordingly, as per his advice, an appeal was filed before the Tribunal on 22.02.2024 i.e. third appeal. On this before the Tribunal on 22.02.2024 i.e. third appeal. On this before the Tribunal on 22.02.2024 i.e. third appeal. On this Arti Shailen Topiwala 8 No. 4383 and 4384/MUM/2025 premise, the assessee sought condonation of delay in filing a premise, the assessee sought condonation of delay in filing a premise, the assessee sought condonation of delay in filing a subsequent third appe subsequent third appeal, lodged on 22.02.2024, against the penalty al, lodged on 22.02.2024, against the penalty order. 6.2 This is the present appeal which has been adjudicated by the This is the present appeal which has been adjudicated by the This is the present appeal which has been adjudicated by the Ld. CIT(A) holding the same to be delayed by a period of 2673 days. Ld. CIT(A) holding the same to be delayed by a period of 2673 days. Ld. CIT(A) holding the same to be delayed by a period of 2673 days. The Commissioner (Appeals), however, rejected the plea, holding The Commissioner (Appeals), however, rejected the plea, holding The Commissioner (Appeals), however, rejected the plea, holding that the delay of 2673 days was inordinate and unexplained, that the delay of 2673 days was inordinate and unexplained, that the delay of 2673 days was inordinate and unexplained, that no ‘sufficient cause’ had been made out, and that the assessee’s no ‘sufficient cause’ had been made out, and that the assessee’s no ‘sufficient cause’ had been made out, and that the assessee’s casual approach and reliance on alleged misadvice could not casual approach and reliance on alleged misadvice could not casual approach and reliance on alleged misadvice could not constitute justification. Reliance was placed on the settled principle constitute justification. Reliance was placed on the settled principle constitute justification. Reliance was placed on the settled principle that negligence, inaction, or want of bona fides cannot be construed that negligence, inaction, or want of bona fides cannot be construed that negligence, inaction, or want of bona fides cannot be construed as sufficient cause. as sufficient cause. The relevant finding of the Ld. CIT(A) is he relevant finding of the Ld. CIT(A) is reproduced as under: reproduced as under: “2.4 I have carefully considered the submissions made by the I have carefully considered the submissions made by the I have carefully considered the submissions made by the assessee and grounds/reasons for 2673 days assessee and grounds/reasons for 2673 days delay (from 27.10.2016 to22.02.2024) in filing the appeal. The appellant has 27.10.2016 to22.02.2024) in filing the appeal. The appellant has 27.10.2016 to22.02.2024) in filing the appeal. The appellant has furnished following reasons for such a delay: furnished following reasons for such a delay: (i). She did not receive the copy of the assessment or penalty order She did not receive the copy of the assessment or penalty order She did not receive the copy of the assessment or penalty order as her house was under redevelopment and she had moved to a as her house was under redevelopment and she had moved to a as her house was under redevelopment and she had moved to a different premise. fferent premise. (ii). One of the combined appeals for both the assessment and the (ii). One of the combined appeals for both the assessment and the (ii). One of the combined appeals for both the assessment and the penalty order was filed on 27 penalty order was filed on 27-04-2017. However, the same was 2017. However, the same was heard as assessment appeal and is presently in a state of heard as assessment appeal and is presently in a state of heard as assessment appeal and is presently in a state of consideration before Ld. CIT(A), after the original a consideration before Ld. CIT(A), after the original appeal ppeal order of the Ld. CIT(A) was Set the Ld. CIT(A) was Set-Aside by the Hon'ble ITAT. (iii). Appellant also filed an appeal exclusively for the assessment (iii). Appellant also filed an appeal exclusively for the assessment (iii). Appellant also filed an appeal exclusively for the assessment on 28-04-2017, which has not yet been heard. 2017, which has not yet been heard. The reasons cited by the appellant have been considered, which The reasons cited by the appellant have been considered, which The reasons cited by the appellant have been considered, which mainly points out to change in residential address, and points out to change in residential address, and wrong points out to change in residential address, and advice of tax consultant and CA. Further, the appellant submitted advice of tax consultant and CA. Further, the appellant submitted advice of tax consultant and CA. Further, the appellant submitted

Arti Shailen Topiwala 9 No. 4383 and 4384/MUM/2025 the notices/orders were delivered to her old address, hence the the notices/orders were delivered to her old address, hence the the notices/orders were delivered to her old address, hence the same was not unserviceableis not tenable, as can be seen from same was not unserviceableis not tenable, as can be seen from same was not unserviceableis not tenable, as can be seen from Col No.2C of the Form 35 that the appellant herself mentioned of the Form 35 that the appellant herself mentioned of the Form 35 that the appellant herself mentioned that the penalty order was passed was received on 28.09.2016, that the penalty order was passed was received on 28.09.2016, that the penalty order was passed was received on 28.09.2016, and also for the first time the appeal on referring to such an order and also for the first time the appeal on referring to such an order and also for the first time the appeal on referring to such an order was filed long back on 27.04.2017, i.e. around6 years back, from was filed long back on 27.04.2017, i.e. around6 years back, from was filed long back on 27.04.2017, i.e. around6 years back, from the date of institution of this appeal. Appellant did not take any e of institution of this appeal. Appellant did not take any e of institution of this appeal. Appellant did not take any curative measures even if a defective appeal was filed allegedly in curative measures even if a defective appeal was filed allegedly in curative measures even if a defective appeal was filed allegedly in the year 2022. Also, as on date, as per appellant's own assertion the year 2022. Also, as on date, as per appellant's own assertion the year 2022. Also, as on date, as per appellant's own assertion there are two appeals pending for the same assessment order there are two appeals pending for the same assessment order there are two appeals pending for the same assessment order passed in her case, and no effort has been shown to be made to ssed in her case, and no effort has been shown to be made to ssed in her case, and no effort has been shown to be made to even withdraw one of such duplicate appeals even withdraw one of such duplicate appeals. Appellant Appellant cannot take advantage of her own casual approach to legal proceedings take advantage of her own casual approach to legal proceedings take advantage of her own casual approach to legal proceedings and seek condonation on the same ground and seek condonation on the same ground. I do not see any I do not see any reasonable cause for a delay of 2673 days ause for a delay of 2673 days which can be termed which can be termed as sufficient cause or any factors beyond the control of the as sufficient cause or any factors beyond the control of the as sufficient cause or any factors beyond the control of the appellant. 2.5 When an appeal is filed beyond the statutory limit, the 2.5 When an appeal is filed beyond the statutory limit, the 2.5 When an appeal is filed beyond the statutory limit, the Appellant needs to provide a valid reason of demonstrate Appellant needs to provide a valid reason of demonstrate Appellant needs to provide a valid reason of demonstrate exceptional circumstances for the delay. The appellant must be circumstances for the delay. The appellant must be circumstances for the delay. The appellant must be able to demonstrate that there was sufficient cause" which able to demonstrate that there was sufficient cause" which able to demonstrate that there was sufficient cause" which obstructed his action to file Appeal beyond the prescribed time obstructed his action to file Appeal beyond the prescribed time obstructed his action to file Appeal beyond the prescribed time limit. Thus, the condonation of delay is not automatic but is based limit. Thus, the condonation of delay is not automatic but is based limit. Thus, the condonation of delay is not automatic but is based upon on the facts of the case. cts of the case. 2.6 The next question arises whether delay was excessive or 2.6 The next question arises whether delay was excessive or 2.6 The next question arises whether delay was excessive or inordinate. I have considered the submissions and perused the inordinate. I have considered the submissions and perused the inordinate. I have considered the submissions and perused the submissions of the appellant. As far as the delay in filing the submissions of the appellant. As far as the delay in filing the submissions of the appellant. As far as the delay in filing the appeal by 2673 days is concerned, one has to admit that the appeal by 2673 days is concerned, one has to admit t appeal by 2673 days is concerned, one has to admit t delay involved is inordinate and not marginal. Personal problems delay involved is inordinate and not marginal. Personal problems delay involved is inordinate and not marginal. Personal problems per se could not constitute a reasonable cause, it is settled per se could not constitute a reasonable cause, it is settled per se could not constitute a reasonable cause, it is settled position of law that it is only marginal delays that can be position of law that it is only marginal delays that can be position of law that it is only marginal delays that can be condoned, and not inordinate delays. A liberal view ought to be condoned, and not inordinate delays. A liberal view ought to condoned, and not inordinate delays. A liberal view ought to taken in terms of delay of few days. However, when there is taken in terms of delay of few days. However, when there is taken in terms of delay of few days. However, when there is inordinate delay, one should be very cautious while condoning the inordinate delay, one should be very cautious while condoning the inordinate delay, one should be very cautious while condoning the delay. The delay of 2673 dayscannot be condoned simply delay. The delay of 2673 dayscannot be condoned simply delay. The delay of 2673 dayscannot be condoned simply because the appellant's case is hard and calls for sympathy or because the appellant's case is hard and calls for sympathy or because the appellant's case is hard and calls for sympathy or merely out of benevolence to the party seeking relief. In granting t of benevolence to the party seeking relief. In granting t of benevolence to the party seeking relief. In granting the indulgence and condoning the delay, it must be proved beyond the indulgence and condoning the delay, it must be proved beyond the indulgence and condoning the delay, it must be proved beyond the shadow of doubt that the appellant was diligent and was not the shadow of doubt that the appellant was diligent and was not the shadow of doubt that the appellant was diligent and was not guilty of negligence whatsoever. The sufficient guilty of negligence whatsoever. The sufficient cause within the cause within the contemplation of the limitation provision must be a cause which is emplation of the limitation provision must be a cause which is emplation of the limitation provision must be a cause which is Arti Shailen Topiwala 10 No. 4383 and 4384/MUM/2025 beyond the control of the party invoking the aid of the provisions. beyond the control of the party invoking the aid of the provisions. beyond the control of the party invoking the aid of the provisions. The Supreme Court in the case of Ramlal v. RewaCoalfields Ltd., The Supreme Court in the case of Ramlal v. RewaCoalfields Ltd., The Supreme Court in the case of Ramlal v. RewaCoalfields Ltd., AIR 1962 SC 361 has held that the cause for the delay in filing AIR 1962 SC 361 has held that the cause for the delay in fili AIR 1962 SC 361 has held that the cause for the delay in fili the appeal which by due care and attention could have been the appeal which by due care and attention could have been the appeal which by due care and attention could have been avoided cannot be a sufficient cause within the meaning of the avoided cannot be a sufficient cause within the meaning of the avoided cannot be a sufficient cause within the meaning of the limitation provision. Where no negligence, nor inaction, or want of limitation provision. Where no negligence, nor inaction, or want of limitation provision. Where no negligence, nor inaction, or want of bona fides can be imputed to the appellant a liberal construction bona fides can be imputed to the appellant a liberal constructi bona fides can be imputed to the appellant a liberal constructi of the provisions has to be made in order to advance substantial of the provisions has to be made in order to advance substantial of the provisions has to be made in order to advance substantial justice. Seekers of justice must come with clean hands. In the justice. Seekers of justice must come with clean hands. In the justice. Seekers of justice must come with clean hands. In the present case, the reasons advanced by the appellant do not show present case, the reasons advanced by the appellant do not show present case, the reasons advanced by the appellant do not show any good and sufficient reason to condone the delays. The delays any good and sufficient reason to condone the delays. The del any good and sufficient reason to condone the delays. The del are not properly explained by the appellant. There is no reason for are not properly explained by the appellant. There is no reason for are not properly explained by the appellant. There is no reason for condoning such delay in this case. The delay is nothing but condoning such delay in this case. The delay is nothing but condoning such delay in this case. The delay is nothing but negligence and inaction of the appellant which could have been negligence and inaction of the appellant which could have been negligence and inaction of the appellant which could have been very well avoided by the exercise of due care and attention. very well avoided by the exercise of due care and attention. very well avoided by the exercise of due care and attention. Further the appellant has not shown from record that any efforts Further the appellant has not shown from record that any efforts Further the appellant has not shown from record that any efforts were made for filing of the appeal on time. It is the duty of the were made for filing of the appeal on time. It is the duty of the were made for filing of the appeal on time. It is the duty of the appellant to file the appeal within the stipulated time provided appellant to file the appeal within the stipulated time provided appellant to file the appeal within the stipulated time provided under the Act unless the appellant is prevented by a reasonable under the Act unless the appellant is prevented by a reasona under the Act unless the appellant is prevented by a reasona cause from filing of the appeal in time. cause from filing of the appeal in time.”

Arti Shailen Topiwala 11 No. 4383 and 4384/MUM/2025 submitted that second appeal in respect of the 271(1)(c) has not submitted that second appeal in respect of the 271(1)(c) has not submitted that second appeal in respect of the 271(1)(c) has not disposed of by Ld. CIT(A). He submitted that in view of the mistake of by Ld. CIT(A). He submitted that in view of the mistake of by Ld. CIT(A). He submitted that in view of the mistake on the part of the tax consultant in filing f the tax consultant in filing in both those appeals in both those appeals same grounds of appeal grounds of appeal related to the quantum addition related to the quantum addition, the assessee was advised assessee was advised to file a separate appeal against the order appeal against the order u/s. 271(1)(c) of the Act u/s. 271(1)(c) of the Act, which the assessee filed on 22.02.2024 which the assessee filed on 22.02.2024 and therefore according to ld. counsel for the assessee the delay of e according to ld. counsel for the assessee the delay of e according to ld. counsel for the assessee the delay of 2673 days in filing the present appeal was on account of the 2673 days in filing the present appeal was on account of the 2673 days in filing the present appeal was on account of the incorrect advice on the part of the consultant who was new and not incorrect advice on the part of the consultant who was new incorrect advice on the part of the consultant who was new well versed with the process of filing appeal with the process of filing appeal. The Ld. counsel . The Ld. counsel submitted that assessee should not be penalized for any mistake on d that assessee should not be penalized for any mistake on d that assessee should not be penalized for any mistake on the part of the chartered accountant. The Ld. counsel accordingly the part of the chartered accountant. The Ld. counsel accordingly the part of the chartered accountant. The Ld. counsel accordingly submitted that the delay in filing the appeal before the Ld. CIT(A) submitted that the delay in filing the appeal before the Ld. CIT(A) submitted that the delay in filing the appeal before the Ld. CIT(A) should be condoned d. Ld. counsel alternatively submitted that Ld. . Ld. counsel alternatively submitted that Ld. CIT(A) has not decided the issue on merit CIT(A) has not decided the issue on merit and therefore appeal and therefore appeal should be sent back to him should be sent back to him. He alternatively also submitted that . He alternatively also submitted that since quantum proceeding has been restore since quantum proceeding has been restored back to the file of the back to the file of the Ld. CIT(A) and therefore this appeal cannot be survived and the therefore this appeal cannot be survived and the therefore this appeal cannot be survived and the matter may be restore matter may be restored back to the file of Ld. CIT(A). back to the file of Ld. CIT(A). The learned counsel for the assessee contended that the appeal filed on counsel for the assessee contended that the appeal filed on counsel for the assessee contended that the appeal filed on 27.04.2017 was, in fact, directed against the penalty order dated 27.04.2017 was, in fact, directed against the penalty order dated 27.04.2017 was, in fact, directed against the penalty order dated 28.09.2016, and therefore the subsequent appeal of 22.02.2024 and therefore the subsequent appeal of 22.02.2024 and therefore the subsequent appeal of 22.02.2024 should not have been rejected as barred by limitation. It was should not have been rejected as barred by limitation. It was should not have been rejected as barred by limitation. It was submitted that the earlier appeal was never disposed of, and the submitted that the earlier appeal was never disposed of, and the submitted that the earlier appeal was never disposed of, and the confusion arose only because grounds therein referred to the confusion arose only because grounds therein referred to the confusion arose only because grounds therein referred to the Arti Shailen Topiwala

12. No. 4383 and 4384/MUM/2025 quantum assessment quantum assessment. It was further urged that an assessee cannot . It was further urged that an assessee cannot be penalised for mistakes of a tax consultant, and that in any event, be penalised for mistakes of a tax consultant, and that in any event, be penalised for mistakes of a tax consultant, and that in any event, in view of the Full Bench judgment of the Bombay High Court in in view of the Full Bench judgment of the Bombay High Court in in view of the Full Bench judgment of the Bombay High Court in Mohd. Farhan A. Shaikh v. DCIT [125 taxmann.com 253 (Bom.)], the [125 taxmann.com 253 (Bom.)], the Mohd. Farhan A. Shaikh v. DCIT penalty was unsustainable ab initio as the notice under section unsustainable ab initio as the notice under section unsustainable ab initio as the notice under section 271(1)(c) read with section 274 of the Act was vague and failed to 271(1)(c) read with section 274 of the Act was vague and failed to 271(1)(c) read with section 274 of the Act was vague and failed to strike off the irrelevant portion. strike off the irrelevant portion. The Ld. DR on the contrary The Ld. DR on the contrary submitted that the assessee failed to point out any mistake in the submitted that the assessee failed to point out any mistake in the submitted that the assessee failed to point out any mistake in the order passed by the Ld. CIT(A) and therefore the order of the Ld. assed by the Ld. CIT(A) and therefore the order of the Ld. assed by the Ld. CIT(A) and therefore the order of the Ld. CIT(A) should be upheld. CIT(A) should be upheld.

Arti Shailen Topiwala 13 No. 4383 and 4384/MUM/2025 which was filed electronically which was filed electronically. For ready reference, the relevant form the relevant form No. 35 of the appeal is reproduced as under: No. 35 of the appeal is reproduced as under:

8.1 On perusal of the details of the order against which appeal is On perusal of the details of the order against which appeal is On perusal of the details of the order against which appeal is filed, we find that date of the order has been mentioned we find that date of the order has been mentioned we find that date of the order has been mentioned as Arti Shailen Topiwala 14 No. 4383 and 4384/MUM/2025 28.09.2016. In column for column for the date of service of order has also the date of service of order has also mentioned as 28.09.2016. Since the order date 2 mentioned as 28.09.2016. Since the order date 28 8.09.2016 is in respect of the levy of the penalty u/s 271(1)(c) of the Act, thus respect of the levy of the penalty u/s 271(1)(c) of the Act respect of the levy of the penalty u/s 271(1)(c) of the Act appeal filed on 27.04.2017 by the assessee is in respect of penalty 27.04.2017 by the assessee is in respect of penalty 27.04.2017 by the assessee is in respect of penalty order. Thus, the materials before us disclose that the appeal dated Thus, the materials before us disclose that the appeal dated Thus, the materials before us disclose that the appeal dated 27.04.2017 specifically referred to the penalty order dated 27.04.2017 specifically referred to the penalty order dated 27.04.2017 specifically referred to the penalty order dated 28.09.2016. 8.2. The second appeal has been filed by the assessee o The second appeal has been filed by the assessee o The second appeal has been filed by the assessee on 28.04.2017 which is in physical format and the relevant form No. 28.04.2017 which is in physical format and the relevant form No. 28.04.2017 which is in physical format and the relevant form No. 35 available on paper book page No. 2 is reproduced as under: on paper book page No. 2 is reproduced as under: on paper book page No. 2 is reproduced as under:

Arti Shailen Topiwala 15 No. 4383 and 4384/MUM/2025 8.3. In the this form No. 35 In the this form No. 35 , order challenged has been , order challenged has been mentioned as u/s 144 dated 17.03.2016 u/s 144 dated 17.03.2016 (sic). The date of of 2017 has been inadvertently inadvertently inadvertently mentioned mentioned mentioned whereas whereas whereas order order order u/s u/s u/s 144 144 144 is is is dated dated dated 17.03.2016 and thus 17.03.2016 and thus, this appeal was against the quantum this appeal was against the quantum assessment proceedings. assessment proceedings. 8.4. But in both the appeals ground raised were in respect of the in both the appeals ground raised were in respect of the in both the appeals ground raised were in respect of the quantum assessment quantum assessment addition. The appeal against . The appeal against quantum proceeding was upheld by Ld. CIT(A) but on further appeal ITAT proceeding was upheld by Ld. CIT(A) but on further appeal ITAT proceeding was upheld by Ld. CIT(A) but on further appeal ITAT has restored the matter back to the file of the Ld. CIT(A) the matter back to the file of the Ld. CIT(A) the matter back to the file of the Ld. CIT(A), which is still pending for adjudication still pending for adjudication as stated by the ld Counsel for the as stated by the ld Counsel for the assessee. 8.5 Subsequently, on advice of the ano Subsequently, on advice of the another tax consultant the ther tax consultant the assessee filed one more one more appeal against levy of the penalty of the appeal against levy of the penalty of the 271(1)(c) of the Act 271(1)(c) of the Act on 22.02.2024. Evidently, there was delay of there was delay of 2673 days in filing said appeal and therefore same has been 2673 days in filing said appeal and therefore same has been 2673 days in filing said appeal and therefore same has been rejected by the Ld. CIT(A). rejected by the Ld. CIT(A). The subsequent appeal dated 22.02.2024 The subsequent appeal dated 22.02.2024 is directed against the same order. It is evident, therefore, that there is directed against the same order. It is evident, therefore, that there is directed against the same order. It is evident, therefore, that there exist two appeals on the same cause, one of which was probably exist two appeals on the same cause, one of which was probably exist two appeals on the same cause, one of which was probably filed filed filed within within within limitation. limitation. limitation. The The The Commissioner Commissioner Commissioner (Appeals), (Appeals), (Appeals), while while while dismissing the later dismissing the later appeal, did not advert to or dispose of the appeal, did not advert to or dispose of the earlier appeal, which remains pending. earlier appeal, which remains pending.

9. Now, the question before the question before us arise as to whether the assessee can arise as to whether the assessee can file two appeals against the same penal two appeals against the same penalty order u/s 271(1)(c) of the order u/s 271(1)(c) of the Act. The plea of the ld. counsel bef he plea of the ld. counsel before us is that the appeal filed by ore us is that the appeal filed by the assessee in 2017 against the penalty has not been adjudicated in 2017 against the penalty has not been adjudicated in 2017 against the penalty has not been adjudicated

Arti Shailen Topiwala 16 No. 4383 and 4384/MUM/2025 and therefore the same has rendered as and therefore the same has rendered as infructuous infructuous and therefore the subsequent appeal filed on 22.02.2024 should be admitted after appeal filed on 22.02.2024 should be admitted after appeal filed on 22.02.2024 should be admitted after condoning the delay in condoning the delay in filing the appeal. According to the Ld. filing the appeal. According to the Ld. counsel the chartered counsel the chartered accountant failed in filing the in filing the appeal in proper format and therefore earlier appeal file and therefore earlier appeal filed against penalty should be treated as should be treated as infructuous. Ld. counsel however submitted Ld. counsel however submitted that no order has been that no order has been passed by the Ld. CIT(A) in respect of appeal passed by the Ld. CIT(A) in respect of appeal filed earlier in respect of the penalty order. respect of the penalty order.

Arti Shailen Topiwala 17 No. 4383 and 4384/MUM/2025 be left remediless merely because of inadvertent errors in drafting be left remediless merely because of inadvertent errors in drafting be left remediless merely because of inadvertent errors in drafting or filing, especially w or filing, especially when the statutory remedy was in fact availed in hen the statutory remedy was in fact availed in time.

Arti Shailen Topiwala 18 No. 4383 and 4384/MUM/2025

Order pronounced in the open Court on nounced in the open Court on 26/0 /08/2025.