AVTEC LTD.,NEW DELHI vs. DCIT (LTU), CIRCLE-1, NEW DELHI

This appeal filed by the Assessee is directed against the order dated 23.11.2018 of the Commissioner of Income Tax (Appeals)-22, New Delhi relating to Assessment Year 2008-09.

1. That the notice issued u/s 271 & 274 and the order passed the order u/s 271(1)(c) imposing penalty of Rs. 8,51,500/- are vague, illegal, bad in law and without jurisdiction. The CIT(A) has grossly erred in upholding the same.

2. That the Ld. CIT(A) has grossly erred on facts and in law in not condoning the delay of 595 days in filing of the appeal before the CIT(A) even when the assessee has submitted a sufficient explanation alongwith evidences.

3. That in view of the facts and circumstances of the case, the delay of 595 days in filing of appeal before CIT(A) should be condoned. The CIT(A) erred in not adjudicating the matter on merits. 4. that the Appellant had neither concealed particulars of income nor had filed inaccurate particulars of income, hence, penalty levied u/s 271(1)(c) is unwarranted and cannot be justified by any material on record.

5. That the order u/s 271(1)(c) is illegal and bad in alw as the same has been passed without affording reasonable and sufficient opportunity of hearing to the Appellant.

6. That the AO and CIT(A) have failed to appreciate that this is a case of disallowance of expenses and no penalty u/s 271(1)(c) can be levied for this.

5. Before us, at the outset, Ld. AR submitted that there was delay of 595 days in filing the appeal before Ld. CIT(A) and the reasons for delayed filing was inter alia that Mr. Jai Mishra who was looking after the taxation matters had left the company at a very short notice and did not hand over properly any order to the management. It was also submitted that the delay was un-intentional and due to the circumstances beyond their control. Ld. AR submitted that Ld. CIT(A) did not condone the delay and dismissed the appeal of the assessee, in limine, without considering the issue on merits.

6. Before us, Ld. AR pointed to the application for condonation of delay filed by the assessee before Ld. CIT(A) and which is reproduced by Ld. CIT(A) and from that he reiterated the submissions made before Ld. CIT(A). He further submitted that the assessee has been diligently pursuing all the income tax matters from A.Y. 2006-07 to A.Y. 2015-16 and it was for the first time that delay in filing the appeal had occurred. He further submitted that when substantial justice was pitted against technicalities, the cause of justice should be preferred and for the aforesaid proposition he also placed reliance on certain decisions. He therefore submitted that the delay in filing the appeal before Ld. CIT(A) be condoned. Ld. DR, on the other hand, did not controvert the submissions made by Ld. AR but however, supported the order of lower authorities. 6. We have heard the rival submissions and perused the material on record. Before us, Ld. AR has argued on ground no. 2 and 3 which is with respect to the delay of 595 days in filing of appeal before Ld. CIT(A) and delay not being condoned by Ld.CIT(A). 7. We find before Ld. CIT(A), the reasons for delay in filing the appeal was inter alia stated that Mr. Jai Mishra who was looking after the taxation matters had left the company at a very short notice and did not hand over properly the orders to the management. The aforesaid contention of the assessee has not been found to be false. We find that various courts have held that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserve to be preferred and that rendering substantial justice should be the paramount consideration rather than rejecting it on hyper technicalities. It would be relevant here to refer to the observation made by Hon’ble Bombay High Court in the case of Shitaldas Motiwani vs. DGIT reported in 2010, 323 ITR 223 (Bom.) “15…. The Legislature has conferred the power to condone delay to enable the authorities to do substantive justice to the parties by disposing of the matters on merits.The expression "genuine" has received a liberal meaning in view of the law laid down by the Apex Court referred to hereinabove and while considering this aspect, the authorities are expected to bare in mind that ordinarily the applicant, applying for condonation of delay does not stand to benefit by lodging its claim 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. 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 malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. The approach of the authorities should be justice oriented so as to advance cause of justice. ”

8. In the light of the aforesaid observations of Hon’ ble Bombay High Court and in the absence of any material placed on record by Revenue to demonstrate that the delay in filing the appeal was with mala-fide intention, we are of the view that the delay in filing the appeal by the Assessee cannot be considered to be with mala- fide intention or was deliberate on its part. We are, therefore, of the view that the delay in filing the appeal before Ld. CIT(A) needs to be condoned. We accordingly condone the delay. Since Ld. CIT(A) has not decided the issue on merits, we restore the matter back to the file of Ld. CIT(A) and direct him to decide the issue on merits and in accordance with law. Needless to state that Ld. CIT(A) shall grant adequate opportunity of hearing to both the parties. Thus, the ground of assessee is allowed.

9. Since, we have condoned the delay and set aside the issue back to the file of Ld. CIT(A), the other Grounds raised

on merits requires no adjudication at present and therefore, not adjudicated.

10. In the result, appeal of the assessee is allowed. Order pronounced in the open court on 09.12.2021, immediately after conclusion of the hearing of the matter in virtual mode.