PRAKASH REALTY,MUMBAI vs. INCOME TAX OFFICER, WARD 27(3)(1), MUMBAI, MUMBAI

After having heard the counsel for both the parties on this application for seeking condonation of delay and considering the entire factual position as explained before us and also keeping in view the principles laid down by Hon'ble Supreme Court in the case of Land Acquisition Collector Vs MST Katiji and others 1987 AIR 1353 Supreme Court, wherein it has been held that were substantial justice is pitted against technicalities of non deliberate delay, then in that eventuality substantial justice is to be preferred. In our view the principals of advancing substantial justice is of prime importance. Hence considering the explanation put forth by the Assessee by justifiably and properly explaining the delay which occurred in filing the appeal and construing the expression "sufficient cause" liberally we are inclined to condone the delay in filing the appeal before us. Therefore we condone the delay and admit the appeal to be heard on merits

We have heard both the counsel for both the parties and perusal of material available on record and orders passed by the revenue authorities. From the record we notice that addition in the present case were made by the AO on account of the fact that assessee had earned interest income in his bank account but in absence of any details/explanation furnished by the assessee the addition were made.

However, during the pendency of appeal before the Ld.CIT(A), the assessee had filed application for leading additional evidence the fact of which has been reproduced at para No.4 of the appeal order passed by Ld. CIT(A). However, Ld. CIT(A) didn’t adjudicate the said application for leading a additional evidence. Therefore now during the present appeal before us the assessee has again moved a similar application for leading additional evidence as sufficient opportunity was not provide to the assessee by the AO for producing documents.

On the contrary the Ld. DR while relying upon the order passed by the revenue authorities submitted that sufficient and proper opportunities were afforded to the assessee but even inspite of that assessee miserable failed to placed on record the supported documents in order to substantiate its claim.

Be that has it may in our view the interest of the justice would be made in case the lis between the parties is decided on merits. Therefore without going into the merits of the claim raised by the assessee. The facts still remains that assessee could not placed on record all the documents in order to substantiate its claim. Therefore, keeping in view the said fact we restore the matter back to the file of AO for deciding it afresh after providing opportunity of hearing to the assessee and assessee shall be at liberty to place on record any document in order to support or substantiate its claim. The assessee is burden with cost of Rs. 2000/- which shall be deposit in the Prime Minister’s Relief Fund within 15 days from the date of the receipt of the order and copy of the same shall be placed before the file of AO. Thereafter AO shall proceed to decide the matter has fresh. The assessee shall not seek any adjournment on unnecessary ground and shall remain co-operative during the course of proceedings.

Before parting, we make it clear that our decision to restore the matter back to the file of the AO shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by the Ld. AO independently in accordance with law.

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