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Facts
The assessee filed an appeal which was found to be time-barred by 391 days. The assessee sought condonation of delay, stating the CIT(Appeals) order was not served and they came to know of the disposal only when a demand notice was received. The assessment and CIT(Appeals) orders were ex-parte.
Held
The Tribunal condoned the delay, holding that the assessee's lack of awareness about the CIT(Appeals) order was a bonafide error and not a deliberate strategy. The Tribunal set aside the ex-parte orders and remitted the issue to the AO for re-adjudication, allowing the assessee to raise objections.
Key Issues
Whether the delay in filing the appeal was sufficiently explained and whether the ex-parte orders of the lower authorities should be set aside and the matter remanded for fresh adjudication.
Sections Cited
253, 249, 5
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, DIVISION BENCH, ‘A’ CHANDIGARH
Before: SHRI RAJPAL YADAV & SHRI KRINWANT SAHAY
The assessee is in appeal before the Tribunal against the order of the ld. Commissioner of Income Tax [in short ‘the CIT ] dated 12.09.2023 passed for assessment year 2012-13.
2. The Registry has pointed out that appeal is time barred by 391 days. The assessee has filed application for condonation of delay. He has pleaded that his appeal was A.Y.2012-13 2 dismissed ex-parte by the CIT (Appeals). The order was not served upon the assessee nor any SMS etc. was sent by the Department, therefore, he could not have the knowledge about the alleged decision of the CIT (Appeals). He further contended that on 19.11.2024, Income Tax Department has served notice upon him for demand, only then he came to know about the disposal of this appeal. He prayed that delay be condoned and appeal be decided on merits.
3. The ld. DR, on the other hand, submitted that once the order is being uploaded on the portal, it is automatically intimated to the assessee. He should be more vigilant about prosecuting income tax litigation.
Sub-section 5 of Section 253 contemplates that the Tribunal may admit an appeal or permit filing of memorandum of cross- objections after expiry of relevant period, if it is satisfied that there was a sufficient cause for not presenting it within that period. This expression sufficient cause employed in the section has also been used identically in sub- section 3 of section 249 of Income Tax Act, which provides powers to the ld. Commissioner to condone the delay in filing A.Y.2012-13 3 the appeal before the Commissioner. Similarly, it has been used in section 5 of Indian Limitation Act, 1963. Whenever interpretation and construction of this expression has fallen for consideration before Hon’ble High Court as well as before the Hon’ble Supreme Court, then, Hon’ble Court were unanimous in their conclusion that this expression is to be used liberally. We may make reference to the following observations of the Hon’ble Supreme court from the decision in the case of Collector Land Acquisition Vs. Mst. Katiji & Others, 1987 AIR 1353:
Ordinarily a litigant does not stand to benefit by lodging an appeal late.
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.
"Every day’s delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic A.Y.2012-13 4 manner.
4. 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.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
Similarly, we would like to make reference to authoritative pronouncement of Hon’ble Supreme Court in the case of N. Balakrishnan Vs. M. Krishnamurthy (1998) 7 SCC 123 dated 03.09.1998. It reads as under:
“Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer A.Y.2012-13 5 causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finislitium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi lain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss.”
In the light of above, if we peruse the application of the assessee for condonation of delay as well as his affidavit, then it would reveal that appeal has become time barred simply for the reason that assessee was not aware about the disposal of A.Y.2012-13 6 his appeal by the CIT (Appeals) which was physically not communicated to him nor any SMS was sent. It was decided and uploaded on the Portal which is very difficult for a person in the rural background to continuously keep a watch of his Income Tax Portal. Therefore, we are of the view that it is just a bonafide error at the end of the assessee and appeal has not been made time barred as a strategy to litigate with the Revenue. The assessee will not get any benefit by making the appeal time barred. Accordingly, we condone the delay and proceed to decide the appeal on merit.
We find that assessment order as well as order of the CIT (Appeals) are ex-parte. The allegation of the AO against the assessee is that he did not file his return of income and a land was sold measuring 47 kanal 11 marla in village Fatehullapur, Tehsil-Kharar, District – Mohali. This land was owned by 9 persons including the assessee. A perusal of the assessment order would reveal that if total sale consideration was of Rs.61,47,000/- of a land owned by 9 persons, then how the total could be added in the hands of the assessee. A.Y.2012-13 7 7.1 On the other hand, ld. counsel for the assessee submitted that no such land was sold by him, though he has sold a land but not the one stated by the AO for re-opening of the assessment. Therefore, we are satisfied that ends of justice would meet if we set aside both the orders and remit the issue to the file of AO for re-adjudication. The assessee will be at liberty to raise objection against re-opening of the assessment because if he has not sold the land as alleged by the AO, then how a basis has been made by the AO demonstrating the escapement of income. Therefore, if objections are being filed by the assessee qua re-opening of assessment, then such objections are to be decided by a speaking order and thereafter, if necessity arises, assessment be framed.
In the result, appeal of the assessee is allowed for statistical purposes.
Order pronounced on 08.09.2025.