BHUBAN MONDAL,MURSHIDABAD vs. ITO, WARD 42(2),, MURSHIDABAD

2 Aggrieved with this action, the assessee had approached the Ld. CIT(A) where also he could not succeed on the basis of his conclusion as under: “4. In light of above discussions and placing reliance on the judgment of Hon'ble Supreme Court of India in the case of Rajneesh Kumar & ANR. Versus Ved Prakash [21 November, 2024] S.L.P. (CIVIL) NOS. 935-936 OF 2021, the appellant owes a duty to be vigilant of his own rights and is expected to be equally vigilant about the assessment/appellate proceedings pending in the Income Tax department initiated at his instance. The appellant has filed the appeal after a time of more than 1900 days on 04.04.2025 Therefore, it is clear that the appellant was casual in approach and has not given plausible reason demonstrating "sufficient cause" for 1900 days delay in filing the appeal. Hence, the reason stated can't be relied upon and therefore, as provided in the section 249(3) of the IT Act, I am not satisfied that the appellate had sufficient cause for not presenting the appeal within the specified period. Hence, since, appeal was not filed within prescribed time as provided in the section 249(2) of the IT Act, the same is not admitted.” 1.3 Further aggrieved, the assessee has approached the ITAT with the following grounds: “1. That, on the facts and in the circumstances of the case, the Ld. CIT(A) erred in not having condoned the non-deliberate delay of 1900 days in filing of the appeal by rejecting the bona fide and unavoidable reasons for such delay duly explained to him, as attributable to negligence and inaction of the appellant and hence the appeal having been dismissed by not adjudicating the same on merits was against the principle of natural justice. 2. That, the Ld. CIT(A) to meet the ends of justice erred in not considering that the delay in filing of the appeal was not intentional and rather it was due to the inaction of one Giri Das introduced himself as an ITP, on whom the assessee has to depend and who misguided the assessee leading to the huge demand beyond his means and all these things were beyond the control of the appellant. 3. That, the Ld. CIT(A) while declining to condone the delay and also declining to pass order on merits of the case acted against the intent of law as settled by judicial precedents that justice can be done only when the matter is fought on merits and in accordance with law rather than to dispose it of on such technicalities and that too at the threshold. 4. That, the Ld. CIT(A) by not adjudicating the appeal on merits dismissed the same for statistical purpose in spite of the fact that in response to notice u/s 250 of the Act the assessee had e-filed all related papers/documents in relation to his business activities, audited account with audit report u/s 44AB, bank statements etc. and for the sake of principle of natural justice the appellant should have been provided an opportunity to explain/prove that the tax charged to him was not correct at all. 5. That, the Ld. A.O. in the ex parte assessment order erred in having estimated the undisclosed business income at Rs. 10,95,837/- u/s 44AD being 8% on the 3 Bhuban Mondal entire credit in the bank of Rs.1,36,97,960/- and further addition of Rs.12,18,600/- as deemed income u/s 69A of the Act and arrived at an exorbitant and arbitrary quantum of tax payable of Rs.17,81,547/- on the total income of Rs.23,14,440/- and the Ld. CIT(A) erred in not having the adjudicated such charge on merits of the case. 6. That, the appellant craves leave to amend, alter, modify, substitute, add to, abridge and/or rescind any or all of the above grounds.” 2. Right at the outset, the Ld. AR argued that the assessee has been very harshly penalised for his ignorance of tax procedure, leading to a substantial dependence on his tax consultant. The Ld. AR further argued with the help of a paper book and written submissions that the assessee is an illiterate person, who is not even capable of signing on his own. It was pointed out that the assessee resides in a backward area of District- Murshidabad in West Bengal and thus he does not have ready access to good tax advice. The Ld. AR read out from the written submissions presented before us, some portions of which deserve to be extracted as under: “1. Sri Bhuban Mondal, appellant herein, is an illiterate person capable of writing his name in his signature and living in a backward area of the District Murshidabad in West Bengal. He has been running a small business of retail reselling of electrical goods in a shop named 'Electric Museum' at his village in Murshidabad District. He was a non-filer of ITR u/s 139(1) of the Act for the A.Y. 2017-18 under appeal. 1.2. On the basis of some information received through ITBA-AIMS that the appellant during the entire financial year relevant to A.Y. 2017-18 had deposited cash of Rs.1,36,97,959/- through various transactions in his bank A/c No. 21372326625 maintained with Allahabad Bank, Kandi Branch, Murshidabad, a notice u/s 142(1) of the Act dated 09/03/2018 was issued asking him to furnish a ROI for the said A.Y. 2017-18. 1.3. As already stated above, the assessee being an illiterate person and also did not have any practical idea/knowledge of any notice from the Income-tax Department as he was a non-filer and the notice was received for the first time, therefore, being at a loss upon receipt of such a notice from the IT. Department, he approached a local person by name Sri Giri Das of Gopinathpur, Kandi, Murshidabad, who is also known in the locality as a tax practitioner, to prepare books of accounts of his business, to file ROI for the A.Y. 2017-18 in compliance to the said 142(1) notice dated 09/03/2018 and to make compliances to the notices as and when issued from the department, to which said Sri Giri Das had consented to. 1.4. That for the said obvious reasons, the assessee was under a bona fide belief that appropriate steps must have been taken by the said tax consultant in 4 Bhuban Mondal preparing books of account and filing of ROI in reply to the said notice u/s 142(1) dated 09/03/2018, more so when the said tax consultant having access over the ITBA portal of the appellant on repeated occasions assured him about compliances of all the notices from the department The assessee thereafter did not receive any further notice from the I.T. Department till he was served through post with a notice dated 25/06/2024 at his postal address raising demand upon him for the A.Y. 2017-18 under appeal. 1.5. That upon receipt of the said demand notice dated 25/06/2024, the assessee apprehended some wrong in the matter and immediately sought advice from another Consultant Advocate Sri Barun Kr. Mukherjee and appraised him all the aforesaid facts. The said Consultant Advocate after changing the profile address accessed the assessee's I.T. Portal and found a huge demand pending for the A.Y. 2017-18, other notices and assessment order for the A.Y. 2017-18. …………… 1.8. That having come to know his duty in the matter, the assessee immediately contacted the said Sri Giri Das and urged him to hand over all the papers, documents, notices etc. relating to A.Y. 2017-18 he was having with him. But the irony was that he did not actually take any step on behalf of the assessee in respect of most of the notices issued by the department and/or inform him the progress/result in the matter. He was also totally non-cooperative. The assessee then having no other recourse/alternative collected duplicate documents of invoices, ledger, vouchers, etc. from different parties as far as possible, bank statements and final accounts were prepared which was liable to audit u/s 44AB of the Act and final account for the year ended 31/03/2017 was drawn and e- filed on 18/03/2025. On the basis of the said audited books of account etc. the appeal against the assessment order u/s 144 of the Act dated 21/12/2019 was prepared and thereafter e-filed on 04/04/2025 before the Ld. CIT(A), resulting in an unintended delay of 1900 days for the said bona fide reasons. A prayer petition for condonation of the said delay along with an Affidavit duly sworn on 04/04/2025 was also attached with the said Appeal Form-35 e-filed before the Id. CIT(A) (Annexure-1, pages 11 to 13), the contents whereof are also appearing on pages 2 & 3 of the impugned appellate order dated 01.09.2025. Thereafter in response to notice u/s 250 dated 07.08.2025 calling for submission on 19.08.2025 in respect of the said appeal, the appellant through his Ld. Advocate e-filed written explanation on 18.08.2025 (Annexure-2, pages-14 to 19) enclosing therewith Audit Report u/s 44AB for the year ended 31.03.2017 along with final accounts in the form of Balance Sheet, P/L Account, bank statement with bank ledger, purchase ledger to the tune of Rs.1,32,60,402/- with purchase invoices, date-wise cash sales ledger for Rs.1,35,51,879/-, cash book showing date-wise cash sales, expenditure statement etc. for the AY 2017-18 (pages 20- 185). 2. In the above backdrop of the case, the explanation of the appellant submitted for the delay of 1900 days in filing the appeal appeared to the Ld. CIT(A) to be manipulative and hence the Ld. CIT(A) vide the impugned order dated 01/09/2025 rejected the condonation prayer. The Ld. AR relied on a number of authorities to canvass the point that the Ld. CIT(A) should have condoned the delay considering the 5 Bhuban Mondal peculiar circumstances in which the assessee found himself and should have adjudicated on merits. The Ld. AR relied on several authorities to canvass the point that condonation of delay is the rule and denial of the same is the exception. 2.1 The Ld. DR relied on the orders of the authorities below. 3. We have carefully considered the rival submissions and perused the documents before us and heard the Ld. AR/DR. It is a settled position of law that while the duration of delay could be a material factor in deciding whether the same deserves to be condoned or not but the more important factor would be the reasons for the said delay. In this case, we are considerably persuaded by the arguments of the Ld. AR, the written submissions presented before us and the case relied upon by him, to come to the conclusion that the delay deserves to be condoned in this case. At this stage, we need to remind ourselves of the critical pronouncements by the Hon’ble Apex Court on the subject of “sufficient cause”. In Collector, Land Acquisition Anantnag v. Mst. Katiji AIR 1987 SC 1353, the Supreme Court has observed that the message with regard to a liberal approach does not appear to have percolated down to all the other Courts in the hierarchy. As per the Hon’ble Court, the following guidelines should be borne in mind while interpreting the concept of “sufficient cause”:- [1] The Litigant does not stand benefited by lodging an appeal late; [2] Refusal to condone may result in meritorious matters being thrown out at the very threshold and the cause of justice being defeated; [3] In the matter of explanation of a very day's delay, pedantic approach should be avoided. Rational common sense, pragmatic approach should be invariably adopted; [4] Substantial justice is to be preferred against technical flaws; [5] There is no presumption that delay is always deliberate; and [6] Injustice is to be removed.

CIT(DR)