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Income Tax Appellate Tribunal, C BENCH: BANGALORE
Before: SHRI WASEEM AHMED & SHRI KESHAV DUBEY
Date of Hearing : 23.10.2024 Date of Pronouncement : 08.01.2025 O R D E R PER KESHAV DUBEY, JUDICIAL MEMBER:
This appeal at the instance of assessee is directed against the order of the ld. CIT(A)/NFAC dated 25.10.2021 vide DIN & Order No. ITBA/NFAC/S/250/2021-22/1036558290(1) passed under section 250 of the Income Tax Act, 1961(in short “ The Act”) for the Assessment Year (in short “AY”) 2011-12. 2. The assessee has raised following grounds of appeal:
Nilesh Ratnakar Deshpande, Bangalore Page 3 of 11 3. There is a delay of 941 days in filing the appeal before this Tribunal. The assessee had filed an application dated 22/07/2024 for condonation of delay along with an affidavit in original sworn before the Notary Public, which are reproduced below for ease of reference and convenience:
Nilesh Ratnakar Deshpande, Bangalore Page 7 of 11 4. The ld. D.R. on the other hand strongly opposed to condone the delay and requested not to allow the appeal for adjudication and dismiss the appeal in limine.
We have gone through the reasons explained by the assessee for filing the appeal belatedly before this Tribunal. The main contention of the assessee is that the assessee was not aware of the passing of the impugned appellate order dated 25.10.2021 until very recently & even the notices of hearing issued by the ld. CIT(A)/NFAC were served on the address of assessee’s earlier tax consultant namely itr@dnsconsulting.net and he has not informed the assessee. At this juncture, it is appropriate to mention the judgement of Hon’ble Supreme Court in the case of Concord of India Insurance Company Ltd. Vs. Smt. Nirmala Devi & Ors. Reported in 118 ITR 507 (SC), wherein it has been held that “the mistake of the counsel may in certain circumstances be taken into account in condoning the delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground”. Accordingly, the Hon’ble Supreme Court has held that there is a mistake of the counsel and therefore, the delay in filing the appeal has been condoned. 5.1 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.
Nilesh Ratnakar Deshpande, Bangalore Page 8 of 11 (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.
5.2 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. 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. Therefore, in our opinion, by preferring the substantial justice, the delay of 33 days has to be condoned.
5.3 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 Nilesh Ratnakar Deshpande, Bangalore Page 9 of 11 justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of non-deliberate delay”.
5.4 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. 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. 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.
5.5 The Madras High Court in the case of Sreenivas Charitable Trust (280 ITR 357) (Mad.) held that no hard and fast rule can be laid down in the matter of condonation of delay and the Court should adopt a pragmatic approach and the Court should exercise their discretion on the facts of each case keeping in mind that in construing the expression "sufficient cause" the principle of advancing substantial justice is of prime importance and the expression "sufficient cause" should receive a liberal construction. Therefore, this Judgment of the Madras High Court (supra) clearly says that in order to advance substantial justice which is of prime importance, the expression "sufficient cause" should receive a liberal construction.
We have carefully considered the rival submissions and perused the orders of lower authorities. Since there is a “sufficient Nilesh Ratnakar Deshpande, Bangalore Page 10 of 11 cause” in filing the appeal before this Tribunal belatedly, we condone the delay in filing the appeal belatedly by 941 days & admit this appeal for adjudication.
6.1 Further, without going into the merits of the case, we are of the opinion that as submitted by the AR of the assessee as well as reason cited in the affidavit sworn by the assessee before the Notary Public, all the notices of hearing sent by the ld. CIT(A)/NFAC were sent to the email id of the earlier tax consultant except the last notice which were sent to present Chartered Accountant which was also overlooked by the CA. Further, the CIT(A) had dismissed the appeal of the Assessee since eleven of the Notices issued were not complied & accordingly decided the Appeal based on material available on record. Further we also found that even before the AO, the assessee did not reply to any of the notices /show cause issued & the AO had passed an order u/s 144 r.w.s 147 of the Act. Being so, in the interest of justice and fair play as well as requested by the AR of the assessee, we are of the opinion that one more opportunity ought to be provided to the Assessee. Accordingly, the entire issues in disputes are restored to the files of the AO for denovo considerations on merits of the case in accordance with law after providing reasonable opportunity of being heard. The assessee is also directed to submit all the documents/records/information or such other documents as may be required by the AO and cooperate with the proceedings before him for proper adjudication of the case. We also direct the assessee to update the email id, contact No. & address on the I. Tax web portal. We clarify that in case of further default, the assessee shall not be entitled for any leniency. It is ordered accordingly.