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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI PAWAN SINGH & SHRI B.M. BIYANI
आदेश/ O R D E R
Per B.M. Biyani, A.M.:
Feeling aggrieved by order of first-appeal dated 11.07.2019 passed by learned Commissioner of Income-Tax (Appeals)-II, Indore [“CIT(A)”] which in turn arises out of assessment-order dated 11.12.2017 passed by learned ITO-3(5), Indore [“AO”] u/s 143(3) of Income-tax Act, 1961 for Assessment- Year [“AY”] 2015-16, the assessee has filed this appeal on the grounds mentioned in Appeal Memo (Form No. 36).
2. The assessee in this appeal was “Shri Kishan Yadav” who has expired on 13.09.2019, therefore present appeal has been filed and is being pursued by Legal Representative Shri Ashok Yadav, eldest son of assessee.
Accordingly, the case title is modified to “Late Kishan Yadav (Th. Legal Rep.
Ashok Yadav)” and taken on record. For convenience, “Shri Kishan Yadav” shall be referred as “assessee or deceased assessee” and “Shri Ashok Yadav” shall be referred as “Legal Representative [“L/R”]” in subsequent discussions.
The registry has informed that the present appeal is delayed by 1731 days and therefore time-barred. Ld. AR for assessee submitted that the L/R has filed an application for condonation of delay with his affidavit dated 04.06.2024 on stamp paper. Referring to contents of same, Ld. AR submitted that the impugned order was passed by CIT(A) on 11.07.2019 and the time available to assessee for filing present appeal was 60 days. But the deceased assessee was in the phase of last days of life and ultimately expired on 13.09.2019. Hence, the deceased assessee could not file. After death of assessee, the L/R was not aware of any proceeding pending against deceased assessee and the impugned order of first-appeal passed by CIT(A).
However, the “date of order” and “date of service or communication of the order” both dates have been filled as 11.07.2019 in Form No. 36 to enable online filing of appeal. It is only when the tax authorities stressed for recovery of demand that the L/R became aware of impugned order.
Immediately, the L/R initiated steps for filing of appeal by paying appeal fee on 29.01.2024; co-ordinated with all survivors of deceased assessee which Page 2 of 9 again was a difficult task for him since it is an agriculturist family and nobody is aware of income-tax and legal matters; ultimately prepared his own affidavit dated 04.06.2024 for condonation of delay and filed present appeal on 05.06.2024. Hence, there occurred a delay in filing appeal. Ld. AR very humbly submitted that there is no lethargy, negligence, mala fide intention or ulterior motive in making delay and the assessee or L/R does not stand to derive any benefit because of delay. He submitted that the sole reason of delay is as narrated which is a “sufficient cause”. Ld. AR went ahead to submit that the assessee’s case is quite meritorious. He submitted that although the CIT(A) has passed an ex-parte order dismissing first appeal due to non-prosecution by deceased assessee but at the same time, the CIT(A) has upheld AO’s order in just 2-3 sentences without complying the mandate of section 250(6) of the Income-tax Act, 1961 which provides that “The order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision.”. Further, the case of assessee before AO was such that the assessee sold an agricultural land and re-invested sale proceed in another agricultural land within the prescribed period of 2 years from the date of sale and accordingly claimed exemption u/s 54B but the AO rejected assessee’s claim of exemption for a technical reason that before making new investment, the assessee did not deposit the proceed of sold land in Capital Gain Deposit Scheme, 1988. Ld. AR submitted that this very issue has already been decided by judicial forums including ITAT, Indore in Page 3 of 9 Rajendra Singh Yadav, wherein it was held that the exemption u/s 54B is a beneficial provision and when the assessee has made investment in new land within the prescribed time-period of 2 years, the exemption cannot be denied for a hyper-technical reason of procedural lapse in depositing money in Capital Gain Deposit Scheme, 1988. Therefore, there can hardly be any hesitation about meritorious nature of assessee’s case. With these submissions, Ld. AR relied upon Collector, Land Acquisition Vs Mst. Katiji and others 1987 AIR 1353, 1987 2 SCC 387 (SC); Shree Rajendra Suri Sah Sakh Sanstha Myd, & 361/Ind/2023 (ITAT, Indore); Shree Swamy Samarth Prassana Oshiwara Vs. ITO, Mumbai, (ITAT, Mumbai); Chirag P. Thummar Vs. The PCIT, Valsad, (ITAT, Surat) and prayed to condone the delay and also remand this matter back to the file of CIT(A) for adjudication afresh in accordance with section 250(6) after giving necessary opportunity to L/R.
4. Per contra, Ld. DR for revenue strongly opposed the submission and prayer of Ld. AR. He filed a Written-Note also in this regard. The points raised by Ld. DR are such that the CIT(A) passed impugned order on 11.07.2019 ex-parte to assessee because the assessee did not respond to the notices sent by CIT(A). Further, the assessee had time of about 64 days before his death on 13.09.2019 but did not file appeal. These facts show a complete disinterest of assessee in availing legal remedy. Even after death of assessee, the L/R did not file appeal for nearly 4 years and 4 months and Page 4 of 9 the claim of unawareness of impugned order is just an excuse; it is unbelievable. That apart, the appeal fee was paid on 29.01.2024 but the appeal was filed on 05.06.2024, thus there is an extra delay of 128 days for which the assessee has no explanation. Thus, Ld. DR contended, there is a non-compliant attitude of deceased assessee as well as L/R. Hence, the inordinate delay of 1,731 days should not be condoned. Ld. DR prayed to dismiss present appeal.
We have considered submissions of both sides and perused the case record.
6. Section 253(5) of the Income-tax Act, 1961 prescribes thus:
“(5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section (3) or sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period.” 7. Further, the Hon’ble Supreme Court has given following guidelines in Collector, Land Acquisition Vs Mst. Katiji and others 1987 AIR 1353, 1987 2 SCC 387 in the matter of condonation of filing delay:
“1. 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. 3. "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 manner.
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.
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.” 8. In present case, the impugned order was passed on 11.07.2019 when the assessee was passing through last days of his life and ultimately expired on 13.09.2019 without filing appeal against impugned order. Ultimately, the L/R of assessee has filed this appeal on 05.06.2024 and therefore the delay is filing appeal is stated to be 1731 days which is reckoned with reference to the date of order (11.07.2019). The L/R of assessee is seeking condonation of delay with the submission that the impugned order was never known to him and it is only when the tax authorities stressed for recovery of demand that he became aware of impugned order. It is a further submission of L/R that he immediately paid appeal fee on 29.01.2024; coordinated with all survivors of deceased; prepared affidavit on 04.06.2024 and was able to file this appeal finally on 05.06.2024. Hence, there is a delay in filing this appeal. The reason explained by L/R is credible and there is no evidence that the same is not factual. When it is so, the length of delay cannot be a sole reason for declining the condonation of delay ignoring the fact that there is no malafide or deliberate act on the part of the L/R in filing this appeal. There is no quarrel on the point that the expression "sufficient cause" must be construed liberally in favour of the litigant approached the court belatedly so that the dispute could be decided as far as possible on merits and not on technicalities. At the same time litigant is not allowed to Page 6 of 9 use the process of law to achieve an ulterior purpose in underhand way by filing the appeal belatedly. Therefore, the concept of liberal interpretation of expression "sufficient cause" would not obliterate the requirement of some reasonable cause to justify the delay specially when there is an inordinate delay. In present case, the L/R has sufficiently explained the reason due to which the filing of this appeal was delayed. On consideration, the explanation given by L/R is not found as contrary to the facts and circumstances or in the category of malafide or deliberate delay on the part of L/R to achieve any ulterior purpose or an attempt to save a limitation in underhand way. Ld. DR’s contention that the assessee was not having interest in pursuing legal remedy is, in our considered view, not convincing because the assessee was passing through last phase of life and ultimately expired also. Further, the L/R has given a proper explanation showing a “sufficient cause” for not presenting appeal in time. Hence, taking into account the provision of section 253(5), the guidelines given by Hon’ble Supreme Court in Collector, Land Acquisition Vs Mst. Katiji (supra) and other decisions quoted by Ld. AR, we take a judicious view, condone delay, admit appeal and proceed with hearing.
Going forward, we find that in present case, the Ld. CIT(A) has dismissed assessee’s first appeal although due to non-prosecution by assessee on the dates of hearing but still without complying with the mandate of section 250(6). Therefore, the impugned order passed by Ld. CIT(A) deserves to be set aside and the matter is fit for restoring to him for a Page 7 of 9 proper adjudication. Ld. AR for assessee also agrees that the L/R is ready and willing to make representation before CIT(A) if an opportunity is given and hence prays that the present matter should be remanded to CIT(A) for an apt adjudication in terms of section 250(6). Considering these aspects, we deem it fit to remand this matter back to the file of CIT(A) for an apt adjudication on merit. The CIT(A) shall give necessary opportunity of hearing and pass an appropriate order. The L/R is also directed to ensure participation in the hearings as may be fixed by CIT(A) and do not seek unnecessary adjournments failing which the CIT(A) shall be at liberty to pass appropriate order in accordance with law. Ordered accordingly.
Resultantly, this appeal is allowed for statistical purpose.
Order pronounced by putting on notice board as per Rule 34 of ITAT Rules, 1963 on 21/02/2025