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Before: SHRI SAKTIJIT DEY & SHRI PRABHASH SHANKAR
PER PRABHASH SHANKAR [A.M.] :- The present appeal is preferred by the assessee against the appellate order dated 17.08.2023 passed by the Learned Commissioner of Income- tax (Appeals)/National Faceless Appeal Centre, Delhi [hereinafter referred to as “CIT(A)"] pertaining to the assessment order u/s 143(3) of the Income-tax Act, 1961 [hereinafter referred to as “Act”] dated 10.09.2021 for the Assessment Year [A.Y.] 2018-19. 2. In the grounds of appeal, the assessee has agitated non- consideration of the Reconciliation statement of the turnover as per Service Tax Return and GST Return vis-a-vis Income Tax Return by the AO while passing the assessment order and making an addition of Rs 4,08,50,332/- to the income although the assessee had duly submitted the same on 30.07.2021.The ld.CIT(A)erred in dismissing the appeal in ex parte order confirming the above addition without appreciating details on record and without considering merits of the claim.
1 The assessee has also filed an Additional ground of appeal on 16.12.2024 w.r.t. interest paid on delayed payment of service tax. It is submitted that the issues involved constitute pure and substantial question of law going to the root of the matter which do not require any fresh investigation of facts and therefore, could be raised at any stage of appeal proceedings. In the additional grounds no.1(i) and (ii),it is stated that the Faceless Assessing Officer(FAO)ought to have allowed interest paid on late payment of service tax as per the provisions of the Act. He erred in disallowing the same without appreciating the legal provisions of law.
2 The additional ground being legal in nature, based on the above reasons adduced by the assessee, we allow admission of the same for adjudication.
At the outset, we notice that there is delay of 361 days in filing of the appeal. In this respect, vide an affidavit it was submitted that the assessee was not aware of any of such appellate order passed as also previous notices stated to be issued by the ld.CIT(A) either online or by way of hard copy. In this regard, initially an affidavit of Mr. Vinod Kumar Yadav, Authorized Signatory has also been submitted. It says that delay was as a result of not knowing the legal provisions. It may be stated here that a revised condonation application has been filed on 17.12.2024 explaining the cause of delay more elaborately .It is contented that the assessee came to know of the appellate order only on 04.10.2024 during half yearly audit by the CA firm and promptly filed appeal on 11.10.2024.An affidavit of Sri D.K.Lalla, the MD has also been submitted inter alia contending that the assessee has neither acted malafide nor their conduct has been negligent or inert, therefore, may be condoned and the appeal may be decided on merits.
1 On careful consideration of the submissions made, we are of the considered opinion that the delay in filing of the appeal before us is a bonafide mistake mainly on account of communication issues relating to online mode of service of notices by the Department. In terms of provisions of Section 253(5) of the Act, the Tribunal has the power to admit the appeal even after expiry of the period referred to in sub-section (3) and (4) of Section 253 of the Act, if the Tribunal is satisfied that there was sufficient cause for not presenting the appeal within the stipulated period. From the facts of the case stated in the sworn affidavit filed, it appears to us that the delay in filing the appeal is neither intentional nor the assessee is benefitted in any manner whatsoever from the said delayed filing of appeal. We may make reference to the following observations of the Hon'ble Supreme court from the decision in the case of Collector Land Acquisition Vs. Mst. Katiji & Others, 1987 AIR 1353:
"
Ordinarily a litigant does not stand to benefit by lodging an appeal late.
Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
"Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non- deliberate delay.
There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
2 We do not deem it necessary to re-cite or recapitulate the proposition laid down in other decisions. It is suffice to say that the Hon'ble Courts are unanimous in their approach to propound that whenever the reasons assigned by an applicant for explaining the delay, then such reasons are to be construed with a justice oriented approach. Considering these facts and the ratio laid down in the above decisions by the Apex Court,we are of the view that the appeal of the assessee is to be heard and decided on merit in the interest of justice and fair play. Therefore, the delay in filing the appeal is condoned and it is admitted for adjudication.
The assessment order was passed in this case at Rs 99,47,98,600/- as against the returned income of Rs 94,35,52,380/- u/s 143(3) of the Act although it appears that there was only a partial compliance before the ld.AO. The appellate order has been passed ex parte. From the contents of the appeal order, it is apparent that following notices/letters for hearing were issued to the assessee but it neither made any response nor filed any submissions. The details of the notices issued are as under: S.No. Date of Notice Sent Compliance Date Remarks 1. 23.05.2023 30.05.2023 No response from the appellant 2. 13.07.2023 20.07.2023 No response from the appellant
We have carefully considered the issue in hand. The ld. CIT(A) has claimed that despite notice issued for allowing opportunity of hearing to the assessee during appellate proceedings, there was no compliance. None appeared before him to support the grounds of appeal. No written submission was made either. The ld. CIT(A) has also held that there was no substantive compliance from the assessee to explain the case before him. However, in the grounds of appeal as also orally, it is contented that the above stated notices sent by the ld.CIT(A) though online email were not received by the assessee nor any hard copy of thereof was received.
1 We are of the view that non compliance before the ld.CIT(A) appears to be mainly on account of miscommunication and certainly not a case of any deliberate defiance and non cooperation by the assessee. Therefore, though the assessee could not appear before the first appellate authority, it is in the fitness of things to allow an opportunity of hearing to the assessee to explain the matter before lower authorities in the interests of justice and fairplay. During the hearing, the Bench proposed for restoration of the matter to the ld.CIT(A) for a de novo consideration of the original grounds of appeal as also additional ground filed subsequently. The Revenue did not oppose this plea. Thus, in the interest of justice, we deem it appropriate to allow the appeal for statistical purposes, emphasizing the need for a thorough and compliant adjudication process. The ld. CIT(A) shall give proper and adequate opportunity of being heard to the assessee in accordance with principles of natural justice in the set aside remand proceedings for de novo adjudication of the appeal of the assessee filed before him. Needless to state, the assessee will comply with notices and any details sought by the appellate authority without fail.
In the result, the above appeal is allowed for statistical purposes. Order pronounced in the open court on 28/03/2025. SAKTIJIT DEY (उपाध्यक्ष/ VICE PRESIDENT) Place: मुंबई/Mumbai दिनांक / Date 28.03.2025 Lubhna Shaikh / Steno PRABHASH SHANKAR (लेखाकारसदस्य/ACCOUNTANT MEMBER) आदेश की प्रतिलिपि अग्रेषित/