M/S. RAKESH METAL & TUBES,MUMBAI vs. INCOME TAX OFFICER 19(3) (1), MUMBAI

The appellant, M/s. Rakesh Metal & Tubes (hereinafter referred to as ‘the assessee’) by filing the present appeal, sought to set aside the impugned order dated 28.12.2021 passed by the National Faceless Appeal Centre(NFAC) [Commissioner of Income Tax (Appeals), Delhi] (hereinafter referred to as CIT(A)] qua the assessment year 2009-10 on the grounds inter alia that: “1. The order dated 28/12/2021 bearing No.ITBA/NFAC/S/250/2021- 22/1038165415[l] passed under section 250 of Income Tax Act, 1961 by the Hon'ble CIT[Appeals], National Faceless Appeal Centre [NFAC], Delhi, is excessive, unreasonable, arbitrary, against the 2 M/s. Rakesh Metal & Tubes provisions of Income Tax Act, 1961 and therefore liable to be quashed.

On facts and circumstances of the case and in law. ihe Hon. C.I.T.(Appeals). NFAC, Delhi has erred in non-condoning the delay in presenting the Appellant even though sufficient cause was demonstrated beyond doubt.

On facts and circumstances of the case and in law, the Hon. C.I.T.(Appeals), NFAC, Delhi has grossly erred in passing the order under section 250 of Income Tax Act, 1961 without even affording a personal hearing to the Appellant to present its case.

On facts and circumstances of the case and in law, the Hon. C.I.T.(Appeals), NFAC, Delhi has erred in not adjudicating the issue relating to purchase from suspicious traders on the basis of information received from DG1T. Mumbai.

The appellant craves to alter, add, delete, substitute, or modify and other grounds of appeal.”

Keeping in view the facts duly narrated in the affidavit inter alia that the assessee’s father namely Uttamchand Prakash G. Shah was suffering from multiple ailments during the period of delay and remained hospitalized in Sir HN Reliance Foundation Hospital, which we consider beyond the control of the assessee and all these facts to our mind are sufficient cause with the assessee not to file the appeal in time.

Hon’ble Supreme Court while deciding the issue of condonation of delay in case of Land Acquisition Collector vs. MST Katiji & Others 167 ITR 471 (SC) held that “when substantial justice and technical considerations are pitted against each other, the case of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in injustice being done because of a non deliberate delay”. So the principle laid down by the Hon’ble Supreme Court is applicable to the reasons of delay in not filing appeal within limitations being beyond the control of the assessee and as such are sufficient to condone the delay.

Even by applying the principle of natural justice assessee is required to be provided with an opportunity of being heard which has not been granted by the lower revenue authority. So we are of the considered view that delay of 54 months in filing the appeal before Ld. CIT(A) was neither intentional nor deliberate on the part of the assessee and there being sufficient reasons the Ld. CIT(A) is directed to condone the delay and to decide the appeal of the 5 M/s. Rakesh Metal & Tubes assessee on merits. To substantiate the cause of justice and to decide the issue once for all in order to stop the multiplicity of the proceedings impugned order passed by the Ld. CIT(A) is liable to be set aside.

We are of the considered view that when the Ld. CIT(A) has not gone into merits in deciding the appeal rather deciding the same on ground of delay only by dismissing the application for condonation of delay filed by the assessee which has been condoned as per preceding paras, the case is required to be remitted back to the Ld. CIT(A) to decide afresh on merits after condoning the delay as per our findings in the preceding paras. So without entering into merits of the contentions raised by the assessee the impugned order passed by the Ld. CIT(A) is set aside to the file of the Ld. CIT(A) to decide afresh after providing opportunity of being heard to the assessee.

Resultantly, the appeal filed by the assessee is allowed for statistical purposes.