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Facts
The assessee filed an appeal before the Tribunal with a delay of 275 days, which the Registry noted as 193 days. The delay was attributed to the assessee's registered email ID being changed, and subsequent communications from the department being sent to the old, inaccessible email address. The assessee claimed the delay was unintentional and due to circumstances beyond their control, including family disputes and not being informed of proceedings.
Held
The Tribunal, considering the principles laid down by the Apex Court regarding condonation of delay, decided to prefer substantial justice over technicality. The Tribunal found that there was no malafide intention and the reason provided for the delay was a sufficient cause. Therefore, the delay of 193 days was condoned.
Key Issues
Whether the delay in filing the appeal before the Tribunal should be condoned on the grounds of sufficient cause, prioritizing substantial justice over technicality.
Sections Cited
250, 253(5)
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Income Tax Appellate Tribunal, “SMC’’BENCH: BANGALORE
Before: SHRI WASEEM AHMED & SHRI KESHAV DUBEY
PER KESHAV DUBEY, JUDICIAL MEMBER:
This appeal at the instance of the assessee is directed against the order of the Ld. CIT(A)/NFAC dated 10.06.2024 vide DIN & Order No. ITBA/NFAC/S/250/2024-25/1065503585(1) passed u/s. 250 of the Income Tax Act, 1961 (in short “the Act”) for the assessment year 2018-19.
The assessee has raised 5 grounds of appeal.
At the outset, the ld. A.R. of the assessee submitted that there is a delay of 275 days in filing the appeal before this Tribunal; however, on going through the order-sheet, we take a note of the fact that the Registry has mentioned the delay of 193 days only. The Page 2 of 10 ld. A.R. of the assessee also drew our attention to an application for condonation of delay filed along with an affidavit in original dated 15/02/2025 sworn before the notary public stating the cause for such delay which are reproduced below for ease of reference:-
Page 3 of 10 Page 4 of 10 Page 5 of 10 Page 6 of 10
On going through the above application for condonation, we take note of the fact that the assessee could not file the appeal on time since all the appeal hearing notices, communications including recovery related communications were sent to the brother’s email id with whom the assessee was not in good terms and therefore, the assessee could not represent his case before the ld. CIT(A)/NFAC. The ld. A.R. also submitted that the delay is unintentional and no benefit can be attributed to the assessee in filing the appeal belatedly. He thus prayed to condone the delay and requested to consider on merits of the case.
On the contrary the ld. D.R. vehemently objected for granting the condonation of delay and submitted that the assessee neither appeared before the AO nor before the ld. CIT(A)/NFAC which clearly reveal the casual attitude of the assessee.
We have perused the details filed by the assessee to justify the delay and we are satisfied that there is no malafide intention on the part of the assessee in filing the appeal belatedly before us. It is to be noted that u/s 253(5) of the Act the Tribunal may admit the appeal filed beyond the period of limitation where it has established that there exists a sufficient cause on the part of the assessee for not presenting the appeals within the prescribed time. The explanation therefore, becomes relevant to determine whether the same reflect sufficient and reasonable cause on the part of the assessee in not filing this appeal within the prescribed time. We have gone through the reasons explained by the assessee in which the assessee alleged that because of wrong e-mail ID, notices were not communicated to the assessee and therefore, he could not Page 7 of 10 represent his case before the ld. CIT(A) and the assessee was completely unaware of the order passed by the ld.CIT(A)/NFAC. 6.1 While considering a similar issue the Apex Court in the case of Collector, Land Acquisition v. Mst. Katiji and Ors. (167 ITR 471) laid down six principles. For the purpose of convenience, the principles laid down by the Apex Court are reproduced hereunder:
(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 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, commonsense and pragmatic manner.
(4) When substantial justice and technical consideration are pitted against each other, the 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 nondeliberate 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 the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
6.2 When substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right for injustice being done because of nondeliberate delay. Therefore, we have to prefer substantial justice rather than technicality in deciding the issue. As observed by Apex Court, if the application of the assessee for condoning the delay is rejected, it would amount to legalize injustice on technical ground when the Tribunal is Page 8 of 10 capable of removing injustice and to do justice. Therefore, this Tribunal is bound to remove the injustice by condoning the delay on technicalities. If the delay is not condoned, it would amount to legalizing an illegal order which would result in unjust enrichment on the part of the State by retaining the tax relatable thereto. Under the scheme of Constitution, the Government cannot retain even a single pie of the individual citizen as tax, when it is not authorized by an authority of law. Therefore, if we refuse to condone the delay, that would amount to legalize an illegal and unconstitutional order passed by the lower authority.
6.3 Further, in the case of People Education & Economic Development Society Vs/ ITO reported in 100 ITD 87 (TM) (Chen), wherein held that “when substantial justice and technical consultation are pitted against each other, the cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of non-deliberate delay”.
6.4 The next question may arise whether delay was excessive or inordinate. There is no question of any excessive or inordinate when the reason stated by the assessee was a reasonable cause for not filing the appeal. We have to see the cause for the delay. When there was a reasonable cause, the period of delay may not be relevant factor. In fact, the Madras High Court in the case of CIT vs. K.S.P. Shanmugavel Nadai and Ors. (153 ITR 596) considered the condonation of delay and held that there was sufficient and reasonable cause on the part of the assessee for not filing the appeal within the period of limitation. Accordingly, the Madras High Court condoned nearly 21 years of delay in filing the appeal. When compared to 21 years, 193 days cannot be considered to be Page 9 of 10 inordinate or excessive. Furthermore, the Chennai Tribunal by majority opinion in the case of People Education and Economic Development Society (PEEDS) v. ITO (100 ITD 87) (Chennai) (TM) condoned more than six hundred days delay. Therefore, in our opinion, by preferring the substantial justice, the delays of 193 days have to be condoned and accordingly condoned & admit the appeal for adjudication.
Before us, the ld. AR of the assessee vehemently submitted that the assessee had duly updated the personal details including the email id, address and contact number on the Income tax portal, thereby changed his registered email from ssnandish@gmail.com (belonging to brother) to vinayssm5@gmail.com (belonging to his son). Further in Form No.35 also the assessee had provided the email id for communication as vinayssm5@gmail.com (belonging to his son), however all the notices for hearings including the Appellate Order were sent on the email id of brother i.e. on ssnandish@gmail.com. The AR further submitted that due to this reason, the assessee could not represent his case before the ld. CIT(A)/NFAC and prayed that one more opportunity may be granted to the assessee to represent his case before the ld. CIT(A)/NFAC. This being so, in the interest of justice and fair play and as requested by the ld. A.R. of the assessee, we deem it fit and proper to remit the entire issues in dispute to the file of ld. CIT(A)/NFAC to decide afresh in accordance with law. Needless to say, a reasonable opportunity of being heard must be granted to the assessee. At the same time, we also direct the assessee to produce/submit all the necessary details/documents/record/ financials/reports in support of his claim. We make it clear that in case of further default, the assessee shall not be entitled for any leniency. It is ordered accordingly.
In the result, appeal of the assessee is partly allowed for statistical purposes.