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Income Tax Appellate Tribunal, SMC BENCH KOLKATA
Before: SHRI GEORGE MATHAN
This is an appeal filed by the assessee against the order of the Id. CIT(A), National Faceless Appeal Centre (NFAC), Delhi, dated 31.05.2023, passed for the assessment year 2010-11. 2. An adjournment application has been filed wherein one Ms. Ruchi Agarwal, appeared, who is CA and she was not in uniform. Consequently, the adjournment application is rejected and the appeal is disposed off.
The appeal filed by the assessee is delayed by 465 days for which the assessee has filed an application for condonation of delay stating as under :- “08 November, 2024 The Hon'ble Members, Income Tax Appellate Tribunal, 225С. А. Ј. С Bose Road Kolkata-700020 P. A. N. AFFPP 2940A Dear Sir. Re: Sampat Mal Parakh
Assessment Year 2010-11 2 Petition for Condonation of Delay in filing appeal against order of CIT (Appeals) - NFAC, Delhi dated 31-05-2023
0 This is to bring to your notice that order u/s 250 dated 31-05-2023 for the captioned Assessment Year was passed by Ld. CIT (Appeals) NFAC, Delhi.
0 As per the provision of Sec. 253(3), appeal before Hob'ble ITAT against the said order needs to be filed within sixty days from the date of service of the notice of demand. Further, as per the provision of Sec. 253(5), the Hon'ble ITAT may admit an appeal after expiry of the said period, if he is satisfied that the appellant had sufficient cause for not presenting it within that period.
0 In this connection, we would like to submit that the aforesaid order u/s 250 was issued to the email. However, the said email was missed and/or overlooked by the me. I am a super senior citizen, aged about 82 years and not completely comfortable with the online mechanism. I was made aware of the said order being passed on receipt of the penalty notice u/s 271(1)(c) of the IT Act, 1961 and immediately on being made aware, the copy of the order was downloaded and immediately forwarded to the consultant for filing of the appeal before the Hon'ble ITAT, Kolkata.
0 In this context, reference is made to the decision of the Hon'ble Madras High Court in the case of Sreenivas Charitable Trust -vs.- DCIT (2006) 280 ITR 357 (Mad). The brief facts of the case are that aggrieved by the order of CIT(Appeals), the assessee preferred an appeal before the Appellate Tribunal with a petition to condone the delay of 38 days in filing the appeal. The Appellate Tribunal dismissed the appeal as barred by limitation. On an appeal by the assessee, the Hon'ble High Court referred, among others, to the judgment of the Apex Court in the case of Vedabai alias Vaijayanatabai Baburao Patil -vs. Shantaram Baburao Patil (2002) 253 ITR 798 (SC) wherein it has been held that, "In exercising discretion under section 5 of the Limitation Act the courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard. The court has to exercise the 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."
1 Reliance is also placed on the decision of the Hon'ble Calcutta High Court in the case of CIT -vs. Orissa Concrete and Allied Industries Ltd. (2003) 264 ITR 186 (Cal) wherein it is held that, 3 "... what is really indicated in the various decisions cited and in section 5 of the Limitation Act itself, is that a litigant would be required to explain why the appeal and/or application could not be filed within the period prescribed by limitation and explain the delay for such period for the purpose of linking up the circumstances which had caused the delay during the period of limitation and thereafter."
2 Further, the Hon'ble High Court stated that on the perusal of the petition filed by the assessee for condonation of delay, it was found that the assessee on finding the misplaced order copy, had sent the same to the counsel for preparing the appeal and then, the appeal was prepared and filed before the Tribunal and in that process, the delay of 38 days occurred. It further stated that the Apex Court has held that no hard and fast rule can be laid down in the matter of condonation of delay and the courts should adopt a pragmatic approach and the courts 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. Hence, the Appellate Tribunal ought to have condoned the delay in filing the appeal, considering the reasons given by the assessee for the delay.
3 Further, reference is made to the decision of the Hon'ble High Court in the case of Voltas Ltd, -vs- DCIT and Another (2000) 241 ITR 471 (AP) wherein, the Hoyble High Court stated that u/s 256 of the Act, the application for reference has to be filed within 60 days from the date it was served and the proviso therein contemplates condoning the delay up to a period of 30 days. Further, it is evident from the affidavit filed that the delay has occurred due to misplacement and not tracing the original order in the office of the counsel. It further stated that it has been laid down in various pronouncements that the delay aspect has to be liberally considered, so as to provide an opportunity to the parties to have a decision on the merits Accordingly, the High Court condoned the delay contending that the explanation and the reasons given in the affidavit does not give scope for any doubt as to bona fides of the assessee.
0 Reference is also made to the decision in the case of Collector, Land Acquisition -vs.- Mst. Katiji (1987) 167 ITR 471 (SC) wherein the apex court has observed that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in injustice being done because of a non- 209 (SC)&Jaya Engineering Works Ltd. -vs.- GOI 1997 (90) ELT 19 (SC).
2 In this regard, reference is also drawn to the decision of Hon'ble Apex Court in the case of Improvement Trust -vs.- Ujagar Singh & Ors. (2010) 6 SCC 786 (SC) wherein it has been held that unless malafide intention exists in the conduct of the party, generally as a normal rule, delay should be condoned. In the legal arena, an attempt should always be made to allow the matter to be contested on merits rather than to throw it on such technicalities. Apart from the above, the appellant would not have gained in any manner whatsoever, by not filing the appeal within the period of limitation.
0 In view of the aforesaid legal pronouncements, it is humbly submitted that your goodself has the power to condone the delay, which needs to be exercised liberally. The matter relating to condonation of delay has to be judged broadly and not in a pedantic manner, and the provisions limiting the time must be liberally interpreted. The word "sufficient cause" needs to be given liberal construction so as to advance substantial justice. Reference in this regard is made to the decision of the Allahabad High Court in the case of Ganga Sahai Ram Swarup -vs.- ITAT (2004) 271 ITR 512 (All) wherein, it was held that a liberal view ought to have been taken by the authority where the delay was only of a very short period and the appellant was not going to gain anything from it.
0 In light of the aforesaid factual and legal position, it is humbly prayed that the delay in filing appeal of 465 days be condoned and appeal memo be admitted and the appeal be decided on merits. Yours faithfully, (Sampat mal Parakh) (Sampat Mal Parakh). The assessee claims that the assessee is not completely comfortable with online mechanism as he is a super senior citizen. A perusal of the facts and circumstances shows that the assessee is involved in commodity transaction which are bogus and which are practically online transactions. The assessee claims that he is not comfortable with the online mechanism but he is able to do online commodity transactions. This clearly shows that the reasons given by the assessee is absolutely false. This being so, the condonation application filed by the assessee is rejected and the appeal of 5 the assessee is not admitted for hearing on account of delay. Consequently, the appeal of the assessee is dismissed.
In the result, appeal of the assessee is dismissed. Order dictated and pronounced in the open court on 03/07/2025. (जार्ज माथन) (GEORGE MATHAN) न्यायिक सदस्य / JUDICIAL MEMBER कोलकाता Kolkata; दिनांक Dated 03/07/2025 Prakash Kumar Mishra, Sr.P.S. आदेश की प्रतिलिपि अग्रेषित/