SUVARNA PEZARKAR,PUNE vs. COMMISSIONER OF INCOME TAX (APPEALS), DELHI

Although a number of grounds have been raised by the assessee, however, these all relate to the order of the Ld. CIT(A) / NFAC in dismissing the appeal filed by the assessee on account of delay.

Facts of the case, in brief, are that the assessee is an individual. On the basis of information available with the department that the assessee, during the financial year 2014-15 relevant to assessment year 2015-16, had sold immovable property for a consideration of Rs.2,06,00,000/- and had not filed her return of income, the Assessing Officer after recording the reasons reopened the case of the assessee as per the provisions of section 147 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’). Accordingly, notice u/s 148 of the Act was issued and served on the assessee. However, the assessee did not respond to the said notice. Subsequently, the Assessing Officer issued notice u/s 142(1) of the Act twice, still there was no response. The Assessing Officer therefore, issued another notice to the assessee asking as to why the order should not be passed u/s 144 of the Act. Since there was no compliance from the side of the assessee despite number of opportunities granted, the Assessing Officer determined the short term capital gain at Rs.2,06,00,000/- without giving any benefit of indexation in absence of any details.

Since the assessee filed the appeal before the Ld. CIT(A) / NFAC with a delay of 158 days, the Ld. CIT(A) / NFAC, rejecting the various explanations given by the assessee for condoning the delay, dismissed the appeal filed by the assessee as inadmissible.

Aggrieved with such order of the Ld. CIT(A), the assessee is in appeal before the Tribunal.

The Ld. Counsel for the assessee at the outset submitted that the assessee is a housewife and does not know the intricacies of the Income Tax Act. He submitted that the impugned income determined by the Assessing Officer has already been offered to tax by the husband of the assessee. Further, the assessee came to know the assessment order passed by the Assessing Officer only when a persistent notification appeared on her cell phone alerting her to the existence of the tax demand. Realizing the urgency of the matter, the assessee promptly sought the help of a professional consultant to address the issue and manage the necessary procedure. He submitted that despite bringing all facts to the notice of the Ld. CIT(A) / NFAC, the Ld. CIT(A) / NFAC rejected the condonation application and dismissed the appeal on account of delay. Referring to the decision of the Hon'ble Supreme Court in the case of Collector, Land Acquisition vs. Mst. Katiji & Ors. reported in 167 ITR 471 (SC) and various other decisions, he submitted that the delay in filing of the appeal before Ld. CIT(A) / NFAC should be condoned and the appeal should be decided on merit.

The Ld. DR on the other hand heavily relied on the orders of the Assessing Officer and the Ld. CIT(A) / NFAC.

We have heard the rival arguments made by both the sides, perused the orders of the Assessing Officer and Ld. CIT(A) / NFAC and the paper book filed on behalf of the assessee. We have also considered various decisions cited before us. It is an admitted fact that due to delay in filing of the appeal by 158 days, the Ld. CIT(A) / NFAC dismissed the same being not maintainable. It is the submission of the Ld. Counsel for the assessee that the assessee is a housewife and is not aware of the intricacies of the Income Tax law. Only when SMS alerts came on her cell phone alerting her to the existence of the tax notices, she came to know of the fact of an order passed by the Assessing Officer for which she promptly approached the professional consultant who thereafter filed the appeal before the Ld. CIT(A) / NFAC. It is also his submission that the amount has already been offered to tax by the husband of the assessee and therefore, bringing to tax the same amount again will cause grave injustice to the assessee.

We find the Hon'ble Supreme Court in the case of Collector, Land Acquisition vs. Mst. Katiji & Ors. (supra) has held that when substantial justice and technical considerations are pitted against each other, 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 non-deliberate delay. Refusing to condone delay can result in a meritorious matter being thrown out 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.

Following the decision of Hon'ble Supreme Court cited (supra) and considering the totality of the facts of the case and in the interest of justice, we are of the considered opinion that the Ld. CIT(A) / NFAC should have condoned the delay and decided the issue on merit. We, therefore, set aside the order of the Ld. CIT(A) / NFAC and restore the issue back to his file with a direction to condone the delay in filing of the appeal by the assessee and decide the appeal on merit as

In the result, the appeal filed by the assessee is allowed for statistical purposes.