DHARMENDRA HARAKHCHAND VAKHARIA,MALAD EAST vs. INCOME TAX OFFICER WARD 30(1)(3), MUMBAI, KAUTILYA BHAVAN , BKC, MUMBAI

Per: Smt. Beena Pillai, J.M.:

The present appeal filed by the assessee arises out of order passed by National Faceless Appeal Centre (NFAC), Delhi, for assessment year 2011-12 dated 06/06/2023. Brief facts of the case are as under:
2. At the outset the Ld.AR submitted that there was delay 450
days in filling the present appeal. The Ld.AR submitted that assessee entrusted all relevant papers to his authorised

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representative and was under a bonafide belief that, the matter will be followed up by the representative at the appellate stage.
However, it was only when the return of income was being filed in July 2024, that it came to the knowledge about the appellate order already being passed by the NFAC.
2.1 The Ld.AR further submitted that, the notices issued by the NFAC was during the covid period and only one notice was issue during the year 2023. The assessee also could not represent before the NFAC on merits. The Ld. AR thus prayed for the appeal to be heard on merit as the assessee has a good case and has all the documentary evidences in support of claims. The Ld. AR thus prayed for the delay to be condone as it is intentional and cannot be attributed to the assessee.
2.2 On the contrary the Ld. DR placed reliance on the order passed by the authorities below however could not find the fact that the assessee was issued all the notices issued during covid period.
I have perused the submissions advanced by both sides in light of records placed before this Tribunal.
3. In my view, the assessee has made out a reasonable cause for the delay in filing the present appeals before this Tribunal. The revenue has filed nothing to establish any contrary intention before this Tribunal. In my opinion, there is sufficient cause for condoning the delay as observed by Hon’ble Supreme Court in the case of Collector Land Acquisition Vs. Mst. Katiji & Ors., reported in (1987) 167 ITR 471 in support of his contentions.
3.1. Reliance is placed on the following observations by Hon’ble
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Katiji & Ors., reported in (1987) 167 ITR 471 wherein, Hon’ble
Court observed as under:-
“The Legislature has conferred the power to condone delay by enacting section 51 of the Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on de merits". The expression “sufficient cause” employed by the Legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice that being the life-purpose of the existence of the institution of courts. It is common knowledge that this court has been making a justifiably liberal approach in matters instituted in this court. But the message does not appear to have percolated down to all the other courts in the hierarchy.
And such a liberal approach is adopted on principle as it is realized that :
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.
......................................................1.Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.”
3.2. Considering the submissions by both sides and respectfully following the observation by Hon’ble Supreme Court, we find it fit

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to condone the delay caused in filing the present appeals as it is not attributable to the assessee.
In any event, though the procedural law pertaining to the limitation has been drafted to construe it strictly, the fact remains that, considering such technicalities will not advance the cause of justice.
3.3. We take support from the observations of Justice Krishna
Iyer wherein he has quoted at various occasion while dealing with technicalities that “any interpretation that alludes substantive justice is not to be followed and that substantive justice must always prevail over procedural technicalities”. Even Hon’ble
& Ors., reported in (1987) 167 ITR 471 has laid down a ratio of similar principles.
Respectfully following the thoughts propounded by Late Hon’ble Justice Krishna Iyer, as well as various decisions of Hon’ble Supreme Court on similar issues, I condone the delay caused in filing the present appeals before this Tribunal.
Accordingly the delay in filling the present appeal before this Tribunal stands condoned.
4. On merits of the case it is noted that Ld.CIT(A)/NFAC dismissed the appeal for want of prosecution. It is further noted that even before the Ld.AO assessee was issued notices which was not responded and the Ld. AO passed the Assessment order u/s. 144 of the Act. In the interest of justice I deem it appropriate to remand back to the Ld.AO to carry out necessary verification all in the light of evidences filed by the assessee. Needless to say

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that proper opportunity of being heard must be granted to the assessee.
Accordingly the issued is contested in the present appeal is remitted to the Ld. AO for de novo consideration.
In the result the appeal filed by the assessee is partly allowed for statistical purposes.
Order pronounced in the open court on 18/02/2025 (BEENA PILLAI)
Judicial Member

Mumbai:
Dated: 18/02/2025
Poonam Mirashi,
Stenographer

Copy of the order forwarded to:
(1)The Appellant
(2) The Respondent
(3) The CIT
(4) The CIT (Appeals)
(5) The DR, I.T.A.T.By order

(Asstt.