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Facts
The assessee's appeal before the Ld. CIT(A) was dismissed as not admitted due to a delay of 8 days. The assessee contended that the delay was due to incorrect email communication and a change of accountant, leading to delayed knowledge of the assessment order.
Held
The Tribunal held that the CIT(A) erred in dismissing the appeal without considering the explanation for the delay. The matter was remanded to the CIT(A) for fresh adjudication, allowing the assessee an opportunity to file a condonation application.
Key Issues
Whether the CIT(A) was justified in dismissing the appeal without considering the assessee's explanation for the delay in filing, and if the delay should be condoned.
Sections Cited
147, 144, 69, 249(2)
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Income Tax Appellate Tribunal, MUMBAI BENCH “H (SMC
Before: SHRI OM PRAKASH KANT & SHRI RAHUL CHAUDHARY
ORDER
PER OM PRAKASH KANT, AM
This appeal by the assessee is directed against order dated 06.03.2025 passed by the Ld. Additional/Joint Commissioner of Income-tax (Appeals) -10, Delhi [hereinafter shall be referred as ‘Ld. CIT(A)’] for assessment year 2012-13, raising following grounds:
1) The Id CIT(A) erred in considering date of service of assessment order on 7/12/2018 to consider for limitation period for filing of apple.
Smt. Shrishti Gupta 2 2) The Ld CIT(A) erred not condoning delay of eight days in CIT(A) erred not condoning delay of eight days in CIT(A) erred not condoning delay of eight days in filing of appeal. filing of appeal. 3) The Ld CIT(A) by dismissing appeal and not admitting 3) The Ld CIT(A) by dismissing appeal and not admitting 3) The Ld CIT(A) by dismissing appeal and not admitting appeal has confirmed addition of Rs 5,06,747 made u/s 69 of appeal has confirmed addition of Rs 5,06,747 made u/s 69 of appeal has confirmed addition of Rs 5,06,747 made u/s 69 of the ITAct, 1961. the ITAct, 1961. 4) The Ld CIT(A) erred in wrongly confirming sale of 4) The Ld CIT(A) erred in wrongly confirming sale of shares as shares as unexplained investment u/s 69 of the Act. unexplained investment u/s 69 of the Act. PRAYERS. 1) Delay in filing of appeal be condoned. 1) Delay in filing of appeal be condoned. 2) Addition of Rs 5.06.747 made u/s 69 of the Act be deleted. 2) Addition of Rs 5.06.747 made u/s 69 of the Act be deleted. 2) Addition of Rs 5.06.747 made u/s 69 of the Act be deleted. The appellant creaves leave to add, modify and or withdraw The appellant creaves leave to add, modify and or withdraw The appellant creaves leave to add, modify and or withdraw any ground of of appeal.
We have heard rival submissions of the parties an heard rival submissions of the parties an heard rival submissions of the parties and perused the relevant material on record. In the present case, the assessment In the present case, the assessment was completed under Section 144 read with Section 147 of the was completed under Section 144 read with Section 147 of the was completed under Section 144 read with Section 147 of the Income-tax Act, 1961 (hereinafter referred to as "the Act") on tax Act, 1961 (hereinafter referred to as "the Act") on tax Act, 1961 (hereinafter referred to as "the Act") on 07.12.2018. The assessee preferred an appeal before the The assessee preferred an appeal before the ld CIT(A) The assessee preferred an appeal before the challenging the said assessment. However, the learned CIT(A), vide challenging the said assessment. However, the learned CIT(A), vide challenging the said assessment. However, the learned CIT(A), vide the impugned order, declined to admit the appeal on the ground the impugned order, declined to admit the appeal on the ground the impugned order, declined to admit the appeal on the ground that it had been filed belatedly by 8 days, and further, that no that it had been filed belatedly by 8 days, and further, that no that it had been filed belatedly by 8 days, and further, that no application for condonation of delay had been filed by the assessee. application for condonation of delay had been filed by the a application for condonation of delay had been filed by the a The learned CIT(A) recorded that the appeal in Form No. 35 had The learned CIT(A) recorded that the appeal in Form No. 35 had The learned CIT(A) recorded that the appeal in Form No. 35 had been filed on 15.01.2019, whereas the limitation period for filing the been filed on 15.01.2019, whereas the limitation period for filing the been filed on 15.01.2019, whereas the limitation period for filing the appeal, computed from the date of service of the order, expired on appeal, computed from the date of service of the order, expired on appeal, computed from the date of service of the order, expired on 06.01.2019. Observing that the assessee neith 06.01.2019. Observing that the assessee neither admitted to any er admitted to any delay in column no. 14 of Form No. 35 nor offered any explanation delay in column no. 14 of Form No. 35 nor offered any explanation delay in column no. 14 of Form No. 35 nor offered any explanation for the same, the learned CIT(A) declined to entertain the appeal for the same, the learned CIT(A) declined to entertain the appeal for the same, the learned CIT(A) declined to entertain the appeal Smt. Shrishti Gupta 3 and held that, in the absence of any cause shown for the delay, the and held that, in the absence of any cause shown for the delay, the and held that, in the absence of any cause shown for the delay, the question of condonation did not arise question of condonation did not arise. In support of this conclusion, . In support of this conclusion, the learned CIT(A) placed reliance upon the decisions of this Court the learned CIT(A) placed reliance upon the decisions of this Court the learned CIT(A) placed reliance upon the decisions of this Court in Ajay Dabra v. Pyare Ram Ajay Dabra v. Pyare Ram (2023), Mahant Bikram Dass Chela v. Mahant Bikram Dass Chela v. Financial Commissioner, Revenue, Punjab and Basawaraj & Anr. v. Financial Commissioner, Revenue, Punjab Basawaraj & Anr. v. Special Land Acquisition Off Special Land Acquisition Officer, reiterating the well-settled principle settled principle that delay can be condoned only upon sufficient cause being shown that delay can be condoned only upon sufficient cause being shown that delay can be condoned only upon sufficient cause being shown and that a litigant who remains inactive or is negligent cannot claim and that a litigant who remains inactive or is negligent cannot claim and that a litigant who remains inactive or is negligent cannot claim indulgence as a matter of right. indulgence as a matter of right. The relevant observation of the The relevant observation of the Ld. CIT(A) is reproduced is reproduced as under:
“2. Decision :- - 2.1 As mentioned at the outset, against the assessment order As mentioned at the outset, against the assessment order As mentioned at the outset, against the assessment order u/s 144 r.w.s. 147 of the Act dated 07.12.2018, the appellant u/s 144 r.w.s. 147 of the Act dated 07.12.2018, the appellant u/s 144 r.w.s. 147 of the Act dated 07.12.2018, the appellant filed an appeal vide Form No.35 dated 15.01.2019. From the filed an appeal vide Form No.35 dated 15.01.2019. From the filed an appeal vide Form No.35 dated 15.01.2019. From the date of issue of the original or date of issue of the original order it is seen, that there is a der it is seen, that there is a delay of 8 days in filing appeal. The appeal should have been delay of 8 days in filing appeal. The appeal should have been delay of 8 days in filing appeal. The appeal should have been filed within 30 days i.e. by 06.01.2019 from service of Order / filed within 30 days i.e. by 06.01.2019 from service of Order / filed within 30 days i.e. by 06.01.2019 from service of Order / Notice of Demand as per Section 249(2) of the Act. In column Notice of Demand as per Section 249(2) of the Act. In column Notice of Demand as per Section 249(2) of the Act. In column no. 14 of Form No. 35, the appellant no. 14 of Form No. 35, the appellant has not admitted to any has not admitted to any delay in filing of the appeal and hence has naturally not given delay in filing of the appeal and hence has naturally not given delay in filing of the appeal and hence has naturally not given any reason for delayed filing of appeal. As the appellant has any reason for delayed filing of appeal. As the appellant has any reason for delayed filing of appeal. As the appellant has failed to provide any reason whatsoever, there is no question failed to provide any reason whatsoever, there is no question failed to provide any reason whatsoever, there is no question of condonation of delay and hence the appeal of condonation of delay and hence the appeal has to be has to be treated as defective. treated as defective. 2.2 There is a statutory limit prescribed for filing of appeal in There is a statutory limit prescribed for filing of appeal in There is a statutory limit prescribed for filing of appeal in the Act. The invocation of the power to condone any delay, the Act. The invocation of the power to condone any delay, the Act. The invocation of the power to condone any delay, major or minor, in observing such time limit is possible only on major or minor, in observing such time limit is possible only on major or minor, in observing such time limit is possible only on the satisfaction of the Addl./JCI the satisfaction of the Addl./JCIT (Appeal) regarding the T (Appeal) regarding the appellant having been unable to file the appeal in time due to appellant having been unable to file the appeal in time due to appellant having been unable to file the appeal in time due to sufficient cause. The appellant cannot be entitled to automatic sufficient cause. The appellant cannot be entitled to automatic sufficient cause. The appellant cannot be entitled to automatic admission of appeal filed after the time limit. admission of appeal filed after the time limit. 2.3 In the instant case, the issue of the merits of the In the instant case, the issue of the merits of the additions additions made by the AO and the grounds of appeal raised by the made by the AO and the grounds of appeal raised by the made by the AO and the grounds of appeal raised by the Smt. Shrishti Gupta 4 appellant could be taken up only when this first stage of delay appellant could be taken up only when this first stage of delay appellant could be taken up only when this first stage of delay was addressed. was addressed. In the case of Ajay Dabra vs Pyare Ram dated
31. Ajay Dabra vs Pyare Ram dated 31 2.4 In the case of January, 2023, Hon’ble Supreme Court January, 2023, Hon’ble Supreme Court has held that has held that – “What “What we have here is a pure civil matter. An appeal we have here is a pure civil matter. An appeal has to be filed within the stipulated period, prescribed has to be filed within the stipulated period, prescribed has to be filed within the stipulated period, prescribed under the law. Belated appeals can only be condoned, under the law. Belated appeals can only be condoned, under the law. Belated appeals can only be condoned, when sufficient reason is shown before the court for the when sufficient reason is shown before the court for the when sufficient reason is shown before the court for the delay. The appellant who seeks condonation delay. The appellant who seeks condonation of delay therefore must explain the delay of each day. It is true therefore must explain the delay of each day. It is true therefore must explain the delay of each day. It is true that the courts should not be pedantic in their approach that the courts should not be pedantic in their approach that the courts should not be pedantic in their approach while condoning the delay, and explanation of each while condoning the delay, and explanation of each while condoning the delay, and explanation of each day’s delay should not be taken literally, but the fact day’s delay should not be taken literally, but the fact day’s delay should not be taken literally, but the fact remains that there must b remains that there must be a reasonable explanation e a reasonable explanation for the delay. In the present case, this delay has not for the delay. In the present case, this delay has not for the delay. In the present case, this delay has not been explained to the satisfaction of the court...In the been explained to the satisfaction of the court...In the been explained to the satisfaction of the court...In the case of Mahant Bikram Dass Chela versus Financial case of Mahant Bikram Dass Chela versus Financial case of Mahant Bikram Dass Chela versus Financial Commissioner, Revenue, Punjab, Chandigarh and Commissioner, Revenue, Punjab, Chandigarh and Commissioner, Revenue, Punjab, Chandigarh and Others (SC) has held Others (SC) has held “Section 5 of the Limitation Act is a “Section 5 of the Limitation Act is a hard task hard task-master and judicial interpretation has master and judicial interpretation has encased it within a narrow compass. A large measure encased it within a narrow compass. A large measure encased it within a narrow compass. A large measure of case of case-law has grown around Section 5, its highlights law has grown around Section 5, its highlights being that one ought not easily to take away a right being that one ought not easily to take away a right being that one ought not easily to take away a right which has which has accrued to a party by lapse of time and that accrued to a party by lapse of time and that therefore a litigant who is not vigilant about his rights therefore a litigant who is not vigilant about his rights therefore a litigant who is not vigilant about his rights must explain every day’s delay explain every day’s delay This Court in the case This Court in the case of Basawaraj and Another of Basawaraj and Another versus Special Land versus Special Land Acquisition Officer (SC) while rejecting an application for Acquisition Officer (SC) while rejecting an applicati Acquisition Officer (SC) while rejecting an applicati condonation of delay for lack of sufficient cause has condonation of delay for lack of sufficient cause has condonation of delay for lack of sufficient cause has concluded in Paragraph 15 as follows: “The law on the concluded in Paragraph 15 as follows: “The law on the concluded in Paragraph 15 as follows: “The law on the issue can be summarized to the effect that where a issue can be summarized to the effect that where a issue can be summarized to the effect that where a case has been presented in the court beyond limitation, case has been presented in the court beyond limitation, case has been presented in the court beyond limitation, the applicant has to explain the c the applicant has to explain the court as to what was ourt as to what was the “sufficient cause” which means an adequate and the “sufficient cause” which means an adequate and the “sufficient cause” which means an adequate and enough reason which prevented him to approach the enough reason which prevented him to approach the enough reason which prevented him to approach the court within limitation. In case a party is found to be court within limitation. In case a party is found to be court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the negligent, or for want of bona fide on his part in the negligent, or for want of bona fide on his part in the facts and circumstances facts and circumstances of the case, or found to have of the case, or found to have not acted diligently or remained inactive, there cannot not acted diligently or remained inactive, there cannot not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court be a justified ground to condone the delay. No court be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay could be justified in condoning such an inordinate delay could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application by imposing any condition whatsoever. The application by imposing any condition whatsoever. The application is to be decided only within the parameters laid down be decided only within the parameters laid down be decided only within the parameters laid down by this Court in regard to the condonation of delay. In by this Court in regard to the condonation of delay. In by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant case there was no sufficient cause to prevent a litigant case there was no sufficient cause to prevent a litigant Smt. Shrishti Gupta
5. ITA No. 3163/MUM/2025 to approach the court on time, condoning the delay to approach the court on time, condoning the delay to approach the court on time, condoning the delay without without without any any any justification, justification, justification, putting putting putting any any any condition condi condi whatsoever, amounts to passing an order in violation of whatsoever, amounts to passing an order in violation of whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing the statutory provisions and it tantamounts to showing the statutory provisions and it tantamounts to showing utter disregard to the legislature.” utter disregard to the legislature.” 2.10 In view of the facts as discussed hereinabove and the 2.10 In view of the facts as discussed hereinabove and the 2.10 In view of the facts as discussed hereinabove and the judicial decisions on the matter of delay in judicial decisions on the matter of delay in filing appeals, this filing appeals, this appeal is not admitted for adjudication as it is delayed and appeal is not admitted for adjudication as it is delayed and appeal is not admitted for adjudication as it is delayed and not filed within the time limit provided and no cause not filed within the time limit provided and no cause not filed within the time limit provided and no cause whatsoever has been provided by the appellant whatsoever has been provided by the appellant for the delay. for the delay. In the absence of any cause for the delay, the same cannot In the absence of any cause for the delay, the same cannot In the absence of any cause for the delay, the same cannot be condoned.
In the result, the appeal is dismissed as not admitted. In the result, the appeal is dismissed as not admitted. In the result, the appeal is dismissed as not admitted.” 2.1 Before us, learned counsel for the assessee submitted that Before us, learned counsel for the assessee submitted that Before us, learned counsel for the assessee submitted that there was, in fact, no intentional delay in filing the appeal. It was there was, in fact, no intentional delay in filing the appeal. It was there was, in fact, no intentional delay in filing the appeal. It was explained that due to incorrect email communicati explained that due to incorrect email communication and change of on and change of accountant, the assessee came to know of the assessment order accountant, the assessee came to know of the assessment order accountant, the assessee came to know of the assessment order only around 12th or 13th January, 2019, when the newly joined only around 12th or 13th January, 2019, when the newly joined only around 12th or 13th January, 2019, when the newly joined accountant discovered the order at the earlier business premises accountant discovered the order at the earlier business premises accountant discovered the order at the earlier business premises and forwarded it to the assessee. On coming to know of the and forwarded it to the assessee. On coming to kno and forwarded it to the assessee. On coming to kno reassessment proceedings, the assessee promptly contacted her reassessment proceedings, the assessee promptly contacted her reassessment proceedings, the assessee promptly contacted her Chartered Accountant, and the appeal was filed without delay on Chartered Accountant, and the appeal was filed without delay on Chartered Accountant, and the appeal was filed without delay on 15.01.2019. It is further submitted that while filing Form No. 35, 15.01.2019. It is further submitted that while filing Form No. 35, 15.01.2019. It is further submitted that while filing Form No. 35, the assessee inadvertently entered the date of the reassessment the assessee inadvertently entered the date of the rea the assessee inadvertently entered the date of the rea order itself as the date of service, and therefore answered "No" to order itself as the date of service, and therefore answered "No" to order itself as the date of service, and therefore answered "No" to the question regarding delay. As a result, no application for the question regarding delay. As a result, no application for the question regarding delay. As a result, no application for condonation was filed, although the factual circumstances, if condonation was filed, although the factual circumstances, if condonation was filed, although the factual circumstances, if appreciated, would show that there was sufficient cause, if any appreciated, would show that there was sufficient caus appreciated, would show that there was sufficient caus delay is found to exist. delay is found to exist.
Smt. Shrishti Gupta 6 The relevant submission of the assessee is reproduced as under: The relevant submission of the assessee is reproduced as under: The relevant submission of the assessee is reproduced as under:
“7. It was only when the accountant of the new occupants of It was only when the accountant of the new occupants of It was only when the accountant of the new occupants of the office located at 18, Santogen House, found the order and the office located at 18, Santogen House, found the order and the office located at 18, Santogen House, found the order and sent it to the Applicant sometime sent it to the Applicant sometime around 12th or 13th around 12th or 13th January, 2019, that the Applicant came to know that the January, 2019, that the Applicant came to know that the January, 2019, that the Applicant came to know that the reassessment order had been passed in her case. reassessment order had been passed in her case.
On such knowledge, the Applicant contacted her Chartered On such knowledge, the Applicant contacted her Chartered On such knowledge, the Applicant contacted her Chartered Accountant for further course of action. On advise, the Accountant for further course of action. On advise, the Accountant for further course of action. On advise, the Applicant took Applicant took immediate steps to file an appeal against the immediate steps to file an appeal against the order before the Ld. CIT(A) and, accordingly, the appeal came order before the Ld. CIT(A) and, accordingly, the appeal came order before the Ld. CIT(A) and, accordingly, the appeal came to be filed on 15.01.2019. to be filed on 15.01.2019.
Out of abundant caution, even though the date of Out of abundant caution, even though the date of Out of abundant caution, even though the date of knowledge of the Applicant was 12th or 13th of knowledge of the Applicant was 12th or 13th of knowledge of the Applicant was 12th or 13th of January, 2019, while f January, 2019, while filing Form 35, the Applicant iling Form 35, the Applicant mentioned the date of the reassessment order as the mentioned the date of the reassessment order as the mentioned the date of the reassessment order as the date of service of the order date of service of the order. As a result, there appeared to . As a result, there appeared to be a delay of 8 days in filing the appeal before the CIT (A). In be a delay of 8 days in filing the appeal before the CIT (A). In be a delay of 8 days in filing the appeal before the CIT (A). In fact, for this reason, in Form 35, the Applicant fact, for this reason, in Form 35, the Applicant has stated 'No' has stated 'No' against the question 'Whether there is delay in against the question 'Whether there is delay in filing appeal'. appeal'.” 2.2 In light of the above explanation, and having regard to the In light of the above explanation, and having regard to the In light of the above explanation, and having regard to the principles of natural justice, we are of the view that the matter principles of natural justice, we are of the view that the matter principles of natural justice, we are of the view that the matter deserves to be remanded to the learned CIT(A) for fresh deserves to be remanded to the learned CIT(A) deserves to be remanded to the learned CIT(A) adjudication. The learned CIT(A) shall examine, on the basis of adjudication. The learned CIT(A) shall examine, on the basis of adjudication. The learned CIT(A) shall examine, on the basis of available records and the submissions of the assessee, the actual available records and the submissions of the assessee, the actual available records and the submissions of the assessee, the actual date on which the assessment order came to the knowledge of the date on which the assessment order came to the knowledge of the date on which the assessment order came to the knowledge of the assessee. If it is found that the appeal was filed assessee. If it is found that the appeal was filed beyond the period beyond the period of limitation, the learned CIT(A) shall communicate the same to the of limitation, the learned CIT(A) shall communicate the same to the of limitation, the learned CIT(A) shall communicate the same to the assessee and afford an opportunity to file an appropriate assessee and afford an opportunity to file an appropriate assessee and afford an opportunity to file an appropriate application for condonation of delay supported by relevant material, application for condonation of delay supported by relevant material, application for condonation of delay supported by relevant material, including an affidavit. Upon such applicati including an affidavit. Upon such application being filed, the on being filed, the learned CIT(A) shall adjudicate the issue of condonation of delay in learned CIT(A) shall adjudicate the issue of condonation of delay in learned CIT(A) shall adjudicate the issue of condonation of delay in Smt. Shrishti Gupta 7 accordance with law and thereafter proceed to dispose of the appeal accordance with law and thereafter proceed to dispose of the appeal accordance with law and thereafter proceed to dispose of the appeal on merits, should the delay be condoned. We make it clear that we on merits, should the delay be condoned. We make it clear that we on merits, should the delay be condoned. We make it clear that we express no opinion on the suffici express no opinion on the sufficiency of the explanation at this ency of the explanation at this stage, and the same shall be independently examined by the stage, and the same shall be independently examined by the stage, and the same shall be independently examined by the learned CIT(A) on remand. In view of the foregoing discussion, the learned CIT(A) on remand. In view of the foregoing discussion, the learned CIT(A) on remand. In view of the foregoing discussion, the grounds raised by the assessee are allowed for statistical purposes. grounds raised by the assessee are allowed for statistical purposes. grounds raised by the assessee are allowed for statistical purposes.
3. In the result, the appeal In the result, the appeal of the assessee is allowed for of the assessee is allowed for statistical purposes.