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Facts
The assessee's appeal was filed with a delay of 91 days. The assessee, a senior citizen, claimed to be unaware of the appellate order due to not receiving it physically and being unfamiliar with electronic communication. The appeal was initially dismissed by the CIT(A) for non-prosecution.
Held
The Tribunal condoned the 91-day delay in filing the appeal, citing the assessee's age, lack of malafide intention, and the principles of substantial justice over technicality. The matter was remitted to the AO for fresh adjudication.
Key Issues
Whether the delay in filing the appeal can be condoned based on the assessee's age and lack of awareness? Whether the disallowances made under Section 37 and Section 40(a)(ia) are justified?
Sections Cited
37, 40(a)(ia), 201, 234A, 234B, 234C, 143(3), 250, 253(5)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “B’’ BENCH: BANGALORE
Before: SHRI LAXMI PRASAD SAHU & SHRI KESHAV DUBEY
PER KESHAV DUBEY, JUDICIAL MEMBER:
This appeal at the instance of the assessee is directed against the order of ld. Addl/JCIT(A), Prayagraj dated 6.12.2024 vide DIN & Order No. ITBA/APL/S/250/2024-25/1070978043(1) passed u/s 250 of the Income Tax Act, 1961 (in short “The Act”) for the assessment year 2017-18.
The assessee has raised the following grounds of appeal:
Sri Muniswamy Raju, Chamrajanagar Page 3 of 9 3. At the outset, there is a delay of 91 days in filing the appeal before this Tribunal. Before us, the ld. A.R. of the assessee drew our attention to an affidavit in original dated 12.6.2025 filed by the assessee stating therein the reasons for delay in filing the appeal, which are reproduced below for ease of convenience and reference:
Sri Muniswamy Raju, Chamrajanagar Page 6 of 9 4. 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 appeal 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 the appeal within the prescribed time. We have gone through the reasons explained by the assessee in which the assessee stated that he was completely unaware of the said appellate order passed by the ld. ADDL/JCIT(A) in as much as the same was not served upon him physically and furthermore, being a senior citizen of aged 76 years, he is also not conversant with emails and other electronic means of communication and requires the assistance of a third person to access his mails and hence, he was not aware of the order passed by the ld. ADDL/JCIT(A) and he was under the Bonafide impression that the said appeal was still pending for disposal. It is only when he received the call from the department to pay the arrears of disputed demand for the aforesaid assessment year, he immediately, contacted his authorized representative who noticed that the appeal filed against the order passed u/s 143(3) of the Act was dismissed by the ld. ADDL/JCIT(A) by passing the order dated 6.12.2024 and thereafter, he approached the present counsel to take necessary action.
4.1 We are of the considered opinion that 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.
4.2 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 non-deliberate delay. Moreover, no counter-affidavit was filed by the Revenue denying the allegation made by the assessee. It is not the case of the Revenue that the appeal was not filed deliberately. Therefore, we have to prefer substantial justice rather than technicality in deciding the issue.
Sri Muniswamy Raju, Chamrajanagar Page 8 of 9 Therefore, in our opinion, by preferring the substantial justice, the delay of 91 days has to be condoned & we condone the delay & admit the appeal for the adjudication.
Now on going through order of assessment passed u/s 143(3) of the Act dated 25.12.2019, we take a note of the fact that as observed by the AO, the assessee did not furnish complete details and accordingly the AO for lack of proof disallowed10% of total expenses claimed under maintenance of machinery & vehicle amounting to Rs.4,02,758/- (40,27,586/- x 10/100). Further, the AO also observed that the assessee had not given any supporting documents and proof as evidence for TDS made on the payments like Compressor Hire Charges, Tipper Hire Charges, Hitachi & JCB Hire charges. The AO in this context, treated as non-deduction of TDS and held the assessee deemed to be default as per section 201 of the Act and thereby attracting the provisions of section 40(a)(ia) of the Act and accordingly disallowed 30% of expenses claimed amounting to Rs.70,42,379/- i.e. Rs.21,12,713/- u/s 40(a)(ia) of the Act and added back to the total income of the assessee under the head “Profits & Gains of business or profession”.
5.1 We also observe that the ld. ADDL/JCIT(A) dismissed the appeal filed by the assessee both on its merits and due to non- prosecution on the ground that there was no compliance before ld. Addl/JCIT(A), Prayagraj.
5.2 Before us, ld. A.R. of the assessee vehemently submitted that the assessee is a senior citizen aged 76 years and he is also not conversant with the e-mails and other electronic means of communication on account of advanced age and accordingly prayed that one more opportunity may be granted before the ld. ADDL/JCIT(A) to substantiate his claim. This being so, in the Sri Muniswamy Raju, Chamrajanagar Page 9 of 9 interest of justice and fair play and as requested by ld. A.R. of the assessee, we remit the entire issue in dispute to the file of JAO to decide afresh in accordance with law. Needless to say a reasonable opportunity of being heard must be granted to the assessee. The assessee is also directed to produce all the relevant documents/records/information/financials in support of his claim. It is ordered accordingly.
In the result, appeal filed by the assessee is partly allowed for statistical purposes.