VISHWAMBHAR SHANKAR SHINDE ,MUMBAI vs. DCIT CENTRAL CIRLE -2, THANE

The assessee has challenged the ld. CIT(A)’s order in not condoning the delay in filing the appeal before the first appellate authority.

Briefly stated the assessee is an individual and proprietor of M/s. Kiran Diagnostics Centers. The assessee had filed his return of income dated 16.12.2020, declaring total income at Rs. 71,97,910/-. Pursuant to the survey action conducted in assessee’s case u/s. 133A of the Act, the assessee’s case was selected for scrutiny and notice u/s. 143(2) and 142(1) of the Act were issued and served upon the assessee. The learned Assessing Officer ('ld. A.O.' for short) recorded the statement u/s. 133A of the Act, where it was observed that there was a difference in the income of the assessee as per the returned income and from the statement of the assessee recorded by the ld. AO. The ld. AO then passed the assessment order dated 22.03.2022 u/s. 144 of the Act, being the best judgment, where the ld. AO made an addition of Rs. 74,52,089/-, u/s. 68 of the Act, being the difference in the ‘income from business and profession’ as per the returned income and the statement of the assessee.

Aggrieved the assessee was in appeal before the first appellate authority, who vide order dated 28.10.2024, dismissed the appeal filed by the assessee for the reason that the assessee has filed the appeal with a delay of 11 months which reason was not sufficiently explained by the assessee.

The assessee is in appeal before us, challenging the impugned order of the ld. CIT(A).

We have heard the rival submissions and perused the materials available on record. It is observed that the assessee has filed the appeal before the first appellate authority with a delay of 11 months for which the learned Authorised Representative (‘ld. AR’ for short) contends that, was due to the reason that the assessee was affected by covid pandemic during the month of March, 2022 to September, 2022. The ld. AR further contended that as the assessee is running a Diagnostic Center where he was prone to the virus which was also the reason for contracting covid, the same was not accepted by the ld. CIT(A) stating that the assessee has failed to submit the documentary evidence to show that the assessee was hospitalized during the said period. The ld. AR prayed that the issues be remanded back to the ld. CIT(A) for adjudicating on the merits of the case by duly condoning the delay in filing the appeal before the first appellate authority.

The learned Departmental Representative (‘ld. DR’ for short) vehemently opposed to remanding this issue back to the ld. CIT(A) for the reason that the assessee has not made proper compliance during the assessment proceedings also. The ld. DR relied on the order of the lower authorities.

In the above circumstances of the case, we observe that the appeal filed by the assessee against the assessment order was filed with a delay of 11 months stating the reason of covid pandemic. Upon considering the rival submissions, we deem it fit to remand this issue back to the file of the ld. CIT(A) for adjudicating the issue on the merits of the case by duly condoning the delay in filing the first appeal by adhering to the principles of natural justice and in the interest of justice dispensation. We also note that various High Courts and the Hon'ble Apex Courts have taken a liberal view in condoning the delay during the pandemic and even otherwise on other circumstances. We therefore restore this issue back to the file of ld. CIT(A) with the direction that the assessee should make compliance before the first appellate authority without any undue delay on his side and the ld. CIT(A) is directed to decide the issue based on the submissions of the assessee and in the merits of the case in accordance with law.

In the result, the appeal filed by the assessee is allowed for statistical purpose. Order pronounced in the open court on 14.02.2025