ENAYAT EBADAT HUSSAIN,NASHIK vs. ITO WARD 1(1), NASHIK, NASHIK

ORDER

PER DR. DIPAK P. RIPOTE, AM:

“1 The Id CIT(A) erred in law and on facts in dismissing appeal by not condoning the delay when the appellant was prevented by reasons beyond his control

Submission of ld.DR : 3. Ld.DR for the Revenue relied on the order of AO and ld.CIT(A).

Findings & Analysis : 4. We have heard both the parties and perused the records. Ld.CIT(A) has held as under : “In the present appeal, the appellant has not mentioned any reason for delay in filing appeal. Since, the appellant has not furnished any genuine reason supported with any evidence to that effect, the appeal is dismissed on grounds of late filing of appeal.” 4.1 Thus, ld.CIT(A) has stated that Assessee has not furnished any reasons for delay. However, on perusal of Form No.35, it is noted that Assessee had filed an Affidavit. We have perused the Affidavit filed by the Assessee and observed that there were sufficient reasons for the delay in filing appeal before the ld.CIT(A).

4.2 The Hon’ble Supreme Court in the case of Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and others Civil Appeal Nos.8183-8184 of 2013 vide order dated 13/09/2013 has laid down following principles for deciding Condonation Application: Quote, “ 15. From the aforesaid authorities the principles that can broadly be culled out are: i) There should be a liberal, pragmatic, justice-oriented pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation. iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. 4.3 The Hon’ble Bombay High Court in the case of EBR Vs. UOI [2018] 89 taxmann.com 194 (Bombay)[06-11-2017] has observed as under while condoning the delay in that case : Quote ,“ 12. In view of the law laid down by the Apex Court, it was not necessary for the petitioner to have explained each and every day's delay. On the contrary, the Apex Court held that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice is to be preferred. The Apex Court also held there is no presumption that delay is intentional and deliberate, as normally a litigant does not stand to benefit by resorting to delay” Unquote. 4.4 In these facts and circumstances of the case, we are convinced that grave injustice is caused to the assessee by not condoning the delay, by ld.CIT(A). Substantial justice is more important than procedural delay. Therefore, we set aside the order of ld.CIT(A) to ld.CIT(A) for denovo adjudication. Assessee shall file all details before the ld.CIT(A). The ld.CIT(A) shall provide opportunity of hearing to the assessee. Accordingly, grounds of appeal raised by the assessee are allowed for statistical purpose.