JYOTI RANJAN ROY REPRESENTED BY LIMITED GUARDIAN SUVAJIT ROY ,KOLKATA vs. ACIT, CIR. 50, KOLKATA

Your petitioner states that the said order dated December 31, 2009 was received by the Assessee on January 1, 2010. The period of 60 days prescribed by section 253(3) of the Act for preferring the appeal expired on March 1, 2010. The said appeal has been filed on May 1, 2024 and as suchthere has been a delay of 5174 days in preferring the said appeal.

Being aggrievedby the aforesaid assessment order dated December 31, 2008, the Assessee preferred an appeal before the Commissioner of Income Tax (Appeals). However, in the course of the appellate proceedings, proceedings under section 263 of the Act were initiated by the Commissioner of Income Tax vide a notice dated October 26, 2009. As revision proceedings were initiated, the Assessee was advised by histax consultant that the entire assessment proceedings would be at large as no order had been passed by theCommissioner of Income Tax (Appeals)at the time when the notice under section 263 of the Act was issued and the said issue of addition under section 68 of the Act would again be examined.

On the basis of the said opinion received, the Assessee, under the said bona fide belief that the aforesaid issue of addition under section 68 of the Act would be re-examined, did not pursue the appeal filed before the Commissioner of Income Tax (Appeals) and also did not file any appeal against the order dated December 31, 2009 passed by the Commissioner of Income Tax (Appeals), subsequently.

Being aggrieved, the Assessee preferred an appeal before the Commissioner of Income Tax (Appeals). There was a delay of eighteen months in instituting the said appeal owing to the health condition of the Assessee and his wife and also on account of the certain personal difficulties arising in the life of the children of the Assessee. However, the Commissioner of Income Tax (Appeals) did not accept the aforesaid reasons and thereafter by his order dated October 1, 2013 dismissed the appeal of your petitioner on the ground that your petitioner hadfailed to show sufficient cause for the delay in instituting the said appeal. Copy of the order dated October 1, 2013 is annexed hereto and marked "C".

Being aggrieved the Assessee preferred an appeal before this Hon'ble Tribunal being ITA No. 2857/Kol/2013. However, during the pendency of the said proceedings, once again proceedings under section 263 of the Act were initiated by the Commissioner of Income Tax. The Commissioner of Income Tax by his order dated March 21, 2014 set aside the assessment order dated August 25, 2011 passed by the Assessing Officer and directed him to pass a fresh assessment order after examining the issues raised by the Commissioner of Income Tax. Copy of the order dated March 21, 2014 is annexed hereto and marked "D".

Your petitioner states that in the course of the second give effect proceedings, the Assessing Officer issued a show cause notice dated March 23, 2015 wherein he raised queries on the basis of the directions of the Commissioner of Income Tax and vide the query no. 2(vii) once again enquired into the investments made by your petitioner in the RBI Bonds. The Assessee by his letter dated March 26, 2015 duly replied to the Assessing Officer and, inter alia, provided explanations pertaining to the aforesaid investments. However, the Assessing Officer by his order dated March 31, 2015 again added the said investments to the income of the Assessee under section 68 of the Act. Copies of the notice dated March 23, 2015, reply dated March 26, 2015 and the order dated March 31, 2015 are annexed hereto and are collectively marked "E".

Being aggrieved by the order dated March 31, 2015, passed by the Assessing Officer, the Assessee preferred an appeal before the Commissioner of Income Tax (Appeals) wherein the Assessee had objected to the aforesaid addition pertaining of investments made in RBI Bonds under section 68 of the Act. However, the Commissioner of Income Tax (Appeals) by his order dated December 5, 2016 rejected the appeal on the said issue on the ground that same had been already adjudicated by the Commissioner of Income Tax (Appeals) in his order dated December 31, 2009. Copy of the order dated December 5, 2016 is annexed hereto and marked "G".

Against the aforesaid order dated December 5, 2016 the Assessee has filed an appeal bearing which is pending before the "C" Bench of this Hon'ble Tribunal wherein the issue pertaining to said addition has also been taken as a ground.

During the review of the said appeal papers, the said tax consultant advised the Assessee to approach an advocate regularly appearing in tax matters before this Hon'ble Tribunal and the Hon'ble Calcutta High Court (hereinafter referred to as the "Tax Advocate"). Accordingly, the Assessee asked the said tax consultant to brief the said Tax Advocate.

Your petitioner states that the said Tax Advocate called for papers from time to time and held conferences with the said tax consultant from time to time and even filed paper books. After much deliberation and after reviewing all the documents, the said Tax Advocate pointed out that the advices previously received by the Assessee may not be correct and advised that the Assessee would have to file appeal against the order dated December 31, 2009 along with an application for condonation of delay.

Your petitioner states that the said tax consultant immediately gave directions to the said Tax Advocate to draft the application for condonation of delay. Thesaid Tax Advocate prepared the necessary documents and shared it with the Assessee and the said tax consultant vide an email dated March 11, 2020. The said Tax Advocate also advised that after filing of the instant appeal, an application should be made for hearing the instant appeal along with the appeal being (hereinafter referred to as "2017 Appeal"). Copy of the email dated March 11, 2020 is annexed hereto and marked "H".

Your petitioner states that before the next date of hearing, the Tax Advocate again approached the said tax consultant for instructions, however, no instructions were received.Later the said tax consultant asked the Tax Advocate to withdraw himself from the appeal owing to the lack of instructions. Accordingly, the said Tax Advocate filed an application before this Hon'ble Tribunal vide an email dated January 12, 2021 and appeared before this Hon'ble Tribunal on January 13, 2021 to inform this Hon'ble Tribunal about the same. Copy of the email dated January 12, 2021 is annexed hereto and marked "J".

Your petitioner states that at the time of the hearing the Hon'ble Tribunal asked the Tax Advocate to inform the Assessee or its representative of thenext date of hearing and allowed him to retire from the matter. Accordingly. the Tax Advocate informed the said tax consultant of the next date of hearing.

Your petitioner states that the Assessee had qualified as an architect in the year 1967 and had started a Partnership Firm in the name of CICCOI with one Md. Rafiq, Architect, with its registered office at DD-2, Salt Lake City, Kolkata. The said Partnership Firm was dissolved sometime in the year 1982- 83. Since then, the Assessee carried on his business activity under the name of Jyoti Roy & Associates, as a proprietorship firm, at the same address ("Firm"). Your petitioner states that he had joined the Firm in and has since been in charge of management and the projects of the said Firm. However, the entire personal file of the Assessee was handled by the Assessee himself and the petitioner was not aware of the assessments and issues in the tax files of the Assessee.

Your petitioner states that the Assessee has been suffering from a progressive disorder affecting his nervous system (Parkinsondisease) since July 2018 and his mental health had steadily been deteriorating with him having temporary loss of memory every now and then and had severe difficulty in understanding the current state of affairs or remembering the events of the last few years but would remember old facts and events. Your petitioner states that the said ailment had 6 &I.T.A. No.261/Kol/2024 Assessment Year: 2006-07 Jyoti Ranjan Roy progressed significantly by December, 2019-January, 2020 and the mental health of the Assessee continued to deteriorate. Your petitioner states that on July 2, 2022 the Assessee had suffered a complete loss of memory and was advised complete rest by the doctors and the family members of the Assessee were advised to start certain medications and procedures and to ensure that the Assessee is not faced with any kind of stress. Your petitioner states that since 2023 the Assessee there has been some improvements but the Parkison's disease irreversible and has no cure and as such it would not be possible for the Assessee to take any decisions on his own and/or understand the implications of his actions. Copies of the medical records of the Assessee are annexed hereto and are collectively marked "K".

Your petitioner states that he was not aware of the aforesaid 2017 Appeal or the advice given by the said advocate to file an appeal against the order dated December 31, 2009 or any tax disputes or issues of the Assessee.

Your petitioner states that on he received a notice from this Hon'ble Tribunal mentioning that the 2017 Appeal was fixed for hearing on September 6, 2022. Copy of the notice is annexed hereto and marked "L".

Your petitioner immediately approached his friend, who was also an advocate practicing in tax matters (hereinafter referred to as the "Second Advocate") with the said notice. Your petitioner states that the Second Advocate asked him to provide the papers but the petitioner stated that he did not have any papers. The said Second Advocate thereafter looked into the website of this Hon'ble Tribunal and found that the appeal had been adjourned from time to time but the details of the tax practitioner appearing could not be found. The Second Advocate thereafter examined the records of this Hon'ble Tribunal and became aware of the fact that the said Tax Advocate was previously looking into the said 2017 Appeal but had retired and also that the Assessee had written a letter to this Hon'ble Tribunal asking for settlement of the issue but was not of sound mind at the time of writing the said letter and not in a position to understand the implications of his actions. The Second Advocate also approached the said TaxAdvocate and informed about the medical issues being the reasons for the lack of instructions. The said Tax Advocate was thereafter requested to again take up the 2017 Appeal.

Your petitioner states that the said Tax Advocate again took up the matter but informed the petitioner that as the Assessee had become a person of unsound mind and that neither Assessee nor the petitioner can prosecute the 2017 Appeal or institute the appeal against the order dated December 31, 2009 and the only way forward is to have the petitioner appointed as a guardian of the Assessee. Your petitioner states that the said 2017 Appeal was listed for hearing on September 6, 2022 when both the advocates appeared and informed the Hon'ble Tribunal of the predicament being faced and that neither the Assessee nor the petitioner can give instructions to prosecute the said 2017Appeal or file the instant 7 &I.T.A. No.261/Kol/2024 Assessment Year: 2006-07 Jyoti Ranjan Roy appeal. After hearing the said advocates, the Hon'ble Tribunal adjourned the hearing of the 2017 Appeal. Your petitioner states that the aforesaid appeal has been adjourned from time to time as the petitioner was in the process of being appointed as a Limited Guardian under the Rights of Persons with Disabilities Actand the said appeal has been fixed for hearing on 2nd May, 2024, Copy of the adjournment application for the hearing on September 6, 2022 is annexed hereto and marked "M". Your petitioner craves leave to refer to other documents filed before this Hon'ble Tribunal in connection with the matters pertaining to the said Assessee, if necessary.

Your petitioner states that he had asked the Tax Advocate about how to proceed with the matter for having him appointed as his father's legal guardian and the said advocate advised the petitioner to approach an advocate who would practice before the Court of the Learned District Judge North 24 Parganas and even gave him reference of a lawyer.

Your petitioner states that he had immediately approached the advocatebut he could not assist your petitioner. The said Tax Advocate then advised your petitioner to approach another lawyer. Your petitioner accordingly approached another advocate who after understanding the issue called for documents from time to time and thereafter filed a petition under the Rights of Persons with Disabilities Act read with Mental Health Care Act, 2017, being Miscellaneous Case-74/2023 (CNR WBNP01- 002174-2023) being Suvajit Roy (Petitioner) and Debashree Roy Biswas and Others (Consentee Petitioners) before the court of the Learned District Judge North 24 Parganas, Barasat. The said petitionfirst came up for hearing on March 2, 2023 and was thereafter heard from time to time.

Your petitioner states thatthe aforesaid application was not progressing much. The Second Advocate advised your petitioner to file a petition before the Hon'ble Calcutta High Court requesting the Hon'ble High Court to direct the Learned District Judge to expeditiously decide the aforesaid application. Accordingly, your petitioner and other members of the Assessee's family filed and a petition under Article 227 of the Constitution being CO. 3199 of 2023 in Re: Suvajit Roy and the Hon'ble High Court vide the order dated September 21, 2023 directed the Learned District Judgeto expeditiously take up the hearing of the said application filed before it and dispose the same on an urgent basis. Copy of the order dated September 21, 2023 is annexed hereto and marked "N". Your petitioner craves leave to refer to the petition filed before the Hon'ble Calcutta High Court, at the time of hearing, if necessary.

Your petitioner states that the Learned District Judge by his order dated December 1, 2023, appointed Advocate Mr. Rajnish Moulik as a special officer (hereinafter referred to as the "Special Officer") to visit and examine the Assessee and his ability to engage in any effective consultations and convey the implications arising from appointment of 8 &I.T.A. No.261/Kol/2024 Assessment Year: 2006-07 Jyoti Ranjan Roy your petitioner as a Limited Guardian under the Rights of Persons with Disabilities Act and file a report. The said Special Officer filed his report whereby the Learned District Judge was satisfied about the incapacity of the Assessee but the Learned. District by its order dated December 12, 2023, found that the Special Officer did not convey the implications of appointment of a Limited Guardian to the Assessee and directed the Special Officer to again visit the Assessee and convey the same. Your petitioner states that the Special Officer complied with the directions of the Learned District Judge and filed a second report, and after being satisfied with the same, the Learned District Judge by his order dated January 11, 2024, appointed the petitioner as the Limited Guardian of the Assessee in terms sections 14 and 17 of the Rights of Persons with Disabilities Act read with sections 14 and 16 of the Mental Health Care Act, 2017. The certified true copy of the said order was received by the petitioner on January 22, 2024. Copies of the orders passed by the Learned District Judge are annexed hereto and are collectively marked "O". Your petitioner craves leave to refer to the petition and other documents filed in the course of the proceedings before the Learned District Judge, at the time of hearing, if necessary.

Your petitioner states that he approached the Second Advocate on January 24, 2024, with the aforesaid order who advised that they sit with the said Tax Advocate for examining the matter for the assessment year 2006-07.Accordingly, your petitioner and the Second Advocate met the Tax Advocateon January 27, 2024 and appraised him of the order passed by the Learned District Judge. Your petitioner states that the said Tax Advocate examined the papers and again advised that the appeal against the order dated December 31, 2009 ought to be filed but the same would have to be amended and also an application for condonation of delay would have to be prepared.

Your petitioner states that he was advised by the Second Advocate that they should also approach a Senior Advocate practicing before this Hon'ble Court with the respect to the appeal sought to be filed.Accordingly, your petitioner approached a Senior Advocate on February 12, 2024, who after examining the papers concurred with the view of the Tax Consultant.

Your petitioner states that he again approached the said Tax Advocate on February 14, 2024 and requested him to take steps for filing the appeal along with the Second Advocate and provided with the drafts previously sent on February 22, 2024. Your petitioner states that the said Tax Advocate held conferences from time to time and sought for various documents and details and prepared the application for condonation of delay and the Form 36 on April 17, 2024 and shared a copy of the same over an email. Copy of the email is annexed hereto and marked "p".

Your petitioner states that it took him some time to provide further details sought and ready the annexures and that the instant appeal. Further, there were some factual issues that needed to be clarified. Accordingly, the petitioner and the Second Advocate met the said Tax 9 &I.T.A. No.261/Kol/2024 Assessment Year: 2006-07 Jyoti Ranjan Roy Advocate on April 25, 2024 to review the papers and revise the appeal and the application for condonation of delay. After making the necessary changes and adding the necessary documents, the instant petition and the appeal were filed on May 1, 2024 after a delay of 5174 days.

Your petitioner states that he has at all times acted in a bona fide manner and that the instant delay has occurred due to the incorrect understanding that once proceedings under section 263 of the Act had been initiated the entireassessment is at large and the mental health or disability of the Assessee. The said understanding is evident from the letter dated July 11, 2016 filed on behalf of the Assessee with this Tribunal. Further, the said understanding was reinforced by the manner in which both the give effect assessment proceedings were conducted by the Assessing Officer with the Assessing Officer raising queries pertaining to the said investments and adding the same in the computation of income.

Your petitioner states that the Assessee has a good case on merits. There has been no negligence or laches on your petitioner's or the Assessee's part and that your petitioner has been bonafide and diligent in pursuing the matter. The delay in preferring the instant appeal was occasioned by circumstances completely beyond your petitioner's control.

In the circumstances, it is just and proper that the delay of 5174 days which has occurred in preferring the instant appeal be condoned. Unless the said delay in preferring the appeal is condoned, your petitioner and/or the Assessee will suffer irreparable loss and prejudice.

This application is made bona fide and in the interest of justice. In the circumstances, your petitionerMost humbly prays for- (a)Condonation of the delay of5174days in preferring the appealagainst order dated December 31, 2009; (b)Such further or other order or ordersbe made and/or directions be given as would affordcomplete relief to your petitioner. And your petitioner, as in duty bound, shall ever pray.”

Besides, the ld. AR vehemently submitted that since the assessee was advised by the counsel not to file the appeal and hence this delay has happened which was totally beyond the control of the assessee. The subsequent counsel appointed thereafter advised the assessee to file the appeal with condonation of delay. The ld. AR contended that the assessee should not penalised for the wrong advice given by the counsel and therefore, the delay may kindly be condoned. The ld. AR relied on 10 &I.T.A. No.261/Kol/2024 Assessment Year: 2006-07 Jyoti Ranjan Roy the decision of N. Balakrishnan vs. M. Krishnamurthy in Civil Appeals Nos.4575-76 of 1998 dated 03.09.1998 and Mool Chandra vs. UOI reported in (2025) 1 Supreme Court Cases 625.

The ld. DR strongly opposed the contentions made by the ld. AR of the assessee and stated that such an inordinate delay may not be condoned though he admitted that the assessee is a disabled person who is being represented by limited guardian. The ld. DR submitted that the reasons stated by the assessee are insufficient and inadequate and therefore, the appeal of the assessee may be dismissed in limine on the ground of being barred by limitation.

After hearing both the parties and perusing the materials on record, we are of the opinion that this matter/issue also requires fresh examination at the end of the Assessing Officer. Accordingly, we restore the matter to the file of the Assessing Officer to examine the matter de novo and decide accordingly. – Since the issues involved in this appeal is 12. identical to one as decided by us in . Therefore, our decision in ITA No.963/Kol/2024 would, mutatis mutandis, apply to this appeal i.e. ITA No.314/Kol/2017. Accordingly,ITA No.314/Kol/2017 is restored to the file of AO and the appeal also allowed for statistical purposes.