JAYANT GRAMIN BIGAR SHETI SAHAKARI PAT SANSTHA,SANGLI vs. ITO WARD 5 SANGLI, SANGLI

Since the appeal filed before the Ld. CIT(A) / NFAC was delayed by 132 days, the Ld. CIT(A) / NFAC dismissed the appeal by observing as under: “1. Present appeal is filed against the order passed u/s 147r.w.s. 144 of the Income Tax Act, 1961 (the 'Act') dated 24/05/2023 by the ITO, ward-5, Sangli. 2. The appeal is filed late by 132 days as the impugned order was served on 24.05.2023. The appellant has filed application for condonation of delay in filing of appeal. This application is reproduced below- 15. If reply to 14 is yes, enter the There is delay in submission of appeal grounds for condonation of delay (not the assessee Cooperative Society Due to exceeding 500 words) technical issues copy of technical problems enclosed requesting to condone the same. 3. In the 'Statement of Facts', the appellant has stated that its consultant created one e-mail id and mentioned it in its ITR but he did not give it the details to the appellant. 3.1 I have examined facts of the case and request for condonation of delay in filing of appeal. In this case, appeal is filed late by 132 days. The appellant, in Form -35 has requested for condonation of delay on Technical issue ground. As regard, negligence of its consultant, shifting of burden over the consultant and making him responsible for the delay is not acceptable. The appellant chose the consultant and it is responsible for his acts. In view of above discussion, I am satisfied that this case is not a fit case for condonation of delay. It is, therefore, not condoned. The appeal is, therefore, dismissed with no comments on grounds of appeal

The Ld. Counsel for the assessee 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) submitted that the delay in filing of the appeal before the Ld. CIT(A) / NFAC should have been condoned by him and should have decided the appeal on merit. He accordingly requested the Bench that the matter may be restored to the file of the Ld. CIT(A) / NFAC to condone the delay and decide the appeal on merit.

The Ld. DR on the other hand strongly opposed the above submissions of the Ld. Counsel for the assessee. He submitted that the assessee never filed the return in response to notice u/s 148 of the Act nor participated in the assessment proceedings. Further, there is a delay in filing of the appeal before the Ld. CIT(A)/ NFAC as well as before the Tribunal. The assessee has not filed any details to substantiate the source of huge cash deposits into the bank account. In view of these circumstances, the order of the Ld. CIT(A) / NFAC be upheld and the grounds raised by the assessee be dismissed.

We have heard the rival arguments made by both the sides and perused the orders of the Assessing Officer and Ld. CIT(A) / NFAC. It is an admitted fact that the appeal has been filed before the Ld. CIT(A) / NFAC with a delay of 132 days and the assessee has explained the reasons for such delay before the Ld. CIT(A) / NFAC by mentioning as under: “3. In the 'Statement of Facts', the appellant has stated that its consultant created one e-mail id and mentioned it in its ITR but he did not give it the details to the appellant.”

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. Respectfully following the decision of the Hon'ble Supreme Court in the case of Collector, Land Acquisition vs. Mst. Katiji & Ors. (supra), the delay in filing of the appeal is condoned and the appeal is admitted for adjudication.

In light of the decision of the Hon'ble Supreme Court in the case of Collector, Land Acquisition vs. Mst. Katiji & Ors (supra), we deem it proper to restore the issue to the file of the Ld. CIT(A) / NFAC with a direction to condone the delay and decide the appeal on merit and as per fact and law. Needless to say the Ld. CIT(A) / NFAC shall give due opportunity of being heard to the assessee.

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