SETTIKERE SHANKARAPPA MURUGESHAIH ,TUMKUR vs. INCOME TAX OFFICER, WARD-1, TUMAKURU

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 Sri SettikereShankarappa Murugeshaiah, Tumkur

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 Sri SettikereShankarappa Murugeshaiah, Tumkur

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 Sri SettikereShankarappa Murugeshaiah, Tumkur

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”.

4 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. Sri SettikereShankarappa Murugeshaiah, Tumkur

In the result, appeal of the assessee is partly allowed for statistical purposes.

The Applicant 2. The Respondent 3. The CIT 4. The DR, ITAT, Bangalore. 5 Guard file