KUMAR BUILDERS,,PUNE vs. DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE - 7,, PUNE

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “B”, PUNE – VIRTUAL COURT BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI S. S. VISWANETHRA RAVI, JUDICIAL MEMBER आयकर अपील सं. / ITA No.1322/PUN/2018 िनधा�रण वष� / Assessment Year: 2013-14 Kumar Builders, Vs. DCIT, Circle-7, 10th Floor, Kumar Business Pune. Centre (KBC), Opp. Pune Central, Bund Garden Road, Pune- 411001. PAN : AACFK1478L Appellant Respondent Assessee by : Shri Nikhil Pathak Revenue by Shri Kalika Singh : Date of hearing : 13.01.2022 Date of pronouncement : 13.01.2022 आदेश / ORDER PER INTURI RAMA RAO, AM: This is an appeal filed by the assessee directed against the order of ld. Commissioner of Income Tax (Appeals)- 5, Pune [‘CIT(A)’ for short] dated 29.09.2017 for the assessment year 2013-14. 2. Briefly the facts of the case are that the appellant is a partnership firm engaged in the business developing the residential and commercial properties. The return of income for the assessment year 2013-14 was filed on 30.09.2013 declaring total income of

2 ITA No.1322/PUN/2018 Rs.29,77,157/-. Against the said return of income, the assessment was completed by the Deputy Commissioner of Income Tax, Circle- 7, Pune (‘the Assessing Officer’) vide order dated 30.03.2016 passed u/s 143(3) of the Income Tax Act, 1961 (‘the Act’) at total income of Rs.6,71,49,739/- after making the following additions :- (i) Addition on account of unsecured loan u/s 68 of Rs.3,85,00,000/-. (ii) Addition on account of interest on the said unsecured loan of Rs.37,55,932/-. (iii) Disallowance of interest expenditure u/s 36(1)(iii) of Rs.1,56,31,290/-. (iv) Disallowance on commission payment of Rs.57,30,908/-. 3. Being aggrieved by the above additions, an appeal was filed before the ld. CIT(A) who vide impugned order dismissed the appeal in-limine for non-prosecution. 4. At the outset, there is a delay in filing the present appeal by 269 days. The appellant filed a petition praying for condonation of delay through an affidavit dated 11.01.2022 stating that the delay had occurred due to the mistake committed by the Accounts Assistant, namely, Shri Kalpesh Pingle by not intimating the receipt

3 ITA No.1322/PUN/2018 of the order of the ld. CIT(A) to the concerned person. The order of the ld. CIT(A) was lying with the Accounts Assistant who noticed while clearing his cupboard and thereafter, he immediately informed to the concerned person, who in turn taken necessary steps for filing the appeal. Thus, it was explained that the delay of 269 days was occurred on account of factors which are beyond the control of the appellant. 5. On the other hand, ld. CIT-DR opposed the condonation of delay. 6. Having heard the rival submissions and perused the averments made in the affidavit, we find that it is not the case of CIT-DR that the appellant had deliberately delayed filing of the appeal. Therefore, keeping in view of the decision of the Hon’ble Supreme Court in the case of N. Balakrishnan v. M. Krishnamurthy, 7 SCC 123 (SC) wherein, it was held as follows :- “the primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice; and that rules of limitation are not meant to destroy the right of parties, but they are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. It held that there is no presumption that delay in approaching the Court is always deliberate, and the words "sufficient cause" under section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice. It held that in every case of delay there can be some lapse on the part of the litigant concerned, but that alone is not enough to turn down his plea and to shut the door against him; and if the explanation does

4 ITA No.1322/PUN/2018 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. It also observed that if the delay is deliberate, then the Court should not accept the explanation. It held that while condoning the delay, the Court should compensate the opposite party with costs.” 7. The above principles have been followed by the Hon’ble Telangana High Court in the case of Thunuguntla Jagan Mohan Rao vs. DCIT, 427 ITR 204 (Telangana). Applying the above principles laid down in the above case to the present case, we are of the considered opinion that in the facts and circumstances of the case the explanation offered by the appellant cannot said to be smack of mala-fides nor can it be said that the appellant adopted a dilatory practice in filing the appeal. Therefore, it is fit case for condonation of delay of 269 days. Accordingly, we condone the delay and admit the appeal for adjudication. 8. On perusal of the order of the ld. CIT(A), it is clear that the ld. CIT(A) had dismissed the appeal in-limine for want of prosecution. However, the law mandates that the appellate authority like CIT(A) should even in the absence of representation by an assessee, the appeal should be disposed of on merits. In view of this, we remit the matter to the file of the ld. CIT(A) to adjudicate the de-novo issues in appeal in accordance with law after affording an opportunity of being heard the appellant herein.

5 ITA No.1322/PUN/2018 9. In the result, the appeal filed by the assessee stands partly allowed for statistical purposes. Order pronounced on this 13th day of January, 2022. Sd/- Sd/- (S. S. VISWANETHRA RAVI) (INTURI RAMA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; �दनांक / Dated : 13th January, 2022. Sujeet आदेश क� �ितिलिप अ�ेिषत / Copy of the Order forwarded to : अपीलाथ� / The Appellant. 1. ��यथ� / The Respondent. 2. 3. The CIT(A)-5, Pune. 4. The Pr. CIT-4, Pune. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, “B” ब�च, 5. पुणे / DR, ITAT, “B” Bench, Pune. गाड� फ़ाइल / Guard File. 6. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune.