M/S. SBICAP SECURITIES LTD,MUMBAI vs. DEPUTY COMMISSIONER OF INCOME TAX CIRCLE 4(2)(1), MUMBAI

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. 2.2 The additional ground being legal in nature, based on the above reasons adduced by the assessee, we allow admission of the same for adjudication. 3. 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 P a g e | 3 A.Y. 2018-19 SBICAP Securities Limited, Mumbai 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. 3.1 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 P a g e | 4 A.Y. 2018-19 SBICAP Securities Limited, Mumbai 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: "1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. 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. 3. "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. 4. 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. 5. 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. 6. 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." 3.2 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 P a g e | 5 A.Y. 2018-19 SBICAP Securities Limited, Mumbai 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.