NOBORU FUCHIMOTO,ALWAR vs. DCIT CIRCLE-3(1), GURGOAN

In view of this submission, we have gone through the record and found that the ld. CIT(A) from the details of Form No.35 came to know that the appellant had left India; that they are not aware of the assessment going on against them in India; and that for filing the appeal, the employer took all the efforts to identify the appellant working in other company for approvals in the form of Power of Attorney and authorization which process was time consuming and resulted in delay.

Learned CIT(A), however, observed that there was no sufficient cause for the delay beyond the control of the petitioner and the delay cannot be condoned. Ld. CIT(A), therefore, proceeded to dismiss both the appeals on the ground of delay.

On the same lines as was submitted before the ld. CIT(A), ld. AR submitted that it is a fact the assesses left India and thereafter the returns were fraudulently revised from an IP address on 18.7.2016 without the knowledge of the assessees or their employer disclosing the income lower than the original income claiming a refund.

It is submitted that assessees had no knowledge of the assessment proceedings going on in India and when the employer came to know of the assessment order, the employer made every attempt to secure the POA etc. from the assessees in order to enable them to file an appeal and since it is time consuming process which resulted in the delay of filing these appeals. It is submitted that there are no malafidies on the part of the assessees for making the delay in filing appeals.

It is further submitted on behalf of the assessees that on finding the information from Form No.35, ld. CIT(A) proceeded to decide the issue by concentrating on the question as to why the delay shall not be condoned without seeking any information from the assessees and such an approach is incorrect since ld. CIT(A) was duty bound to verify whether there was sufficient cause on the part of the assessees in the delay occurred.

Ld. DR submitted that there are no plausible grounds for the assessee in delay and the delay cannot be condoned. She further submitted that no case was made out on the financial hardship etc. 8. We have gone through the record. There is nothing abnormal in the submissions made on behalf of the assessees that since the assessees left employment in India and also left India, there was no information left with the employer and, therefore, the employer making attempts to identify the whereabouts of the assessees and to take all the legal formalities forward for filing the appeals took some time. It is not the case of the revenue that the assessees were making any false statement on this score or that they stood to gain by allowing the appeal to be barred by limitation. 9. When it is an admitted fact that the assessees do not stand to gain by filing the appeal with delay, there are no reasons to believe the bonafides of the assessees as to the reason for the delay. It is the settled principle of law that in the absence of any rights being crystallized by afflux of time, the highest that would happen by condoning the delay that a case would be decided on merits. When the technicalities are pitted against the delivery of substantial justice, the former must give way to the latter.

We, therefore, while accepting the reasons for delay in condonation of delay, remand the matter to the file of the ld. CIT(A) for disposing the appeals on merits.

In the result, whereas both the appeals are allowed for statistical purposes, stay applications became infructuous and are dismissed as such. Order pronounced in open court on 30th August, 2019.