ATHIYUR NATESAN RADHAKRISHNAN,CHENNAI vs. DCIT CENTRAL CIRCLE 2(1), CHENNAI

आदेश / O R D E R

PER RAMIT KOCHAR, ACCOUNTANT MEMBER:

The assessee has filed this appeal before the Income Tax Appellate Tribunal, Chennai Benches, Chennai (hereinafter called “ the tribunal”) challenging the appellate order passed by learned Commissioner of Income Tax (Appeals)-16, Chennai ( hereinafter called “the CIT(A)” ), in ITA No.36/CIT(A)-18/2017-18 dated 10.04.2019 for assessment year (ay) 2009-10. The appellate proceedings had arisen before learned CIT(A) from penalty order dated 27.09.2016 passed by learned Assessing

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Officer(hereinafter called “ the AO”) u/s 271(1)(c) of the Income-tax Act 1961(hereinafter called “the Act”).It was at the outset brought to the notice of the Bench by learned counsel for the assessee that assessee filed its first appeal with learned CIT(A) late by 345 days beyond the time prescribed by Section 249(2) of the 1961 Act, for which the assessee had sought for condonation of aforesaid delay of 345 days in filing this appeal before the learned CIT(A) , but learned CIT(A) refused to condone the aforesaid delay and dismissed the appeal of the assessee, vide appellate order dated 10.04.2019. The learned counsel for the assessee stated before the Bench that assessee is a senior citizen of 80 years of age and is suffering from multiple diseases and was also hospitalized which prevented him from filing its appeal in time before learned CIT(A). The learned counsel for the assessee submitted that learned CIT(A) ought to have condone the delay in filing appeal late beyond time prescribed u/s 249(2) of the 1961 Act and then ought to have proceeded to adjudicate the issues in appeal on merits but learned CIT(A) shut the doors of justice to assessee by not condoning the delay and dismissed the appeal of the assessee at the threshold on technicalities for filing appeal late by 345 days. The learned counsel for the assessee brought our attention to an affidavit dated 03.12.2019 filed by assessee before the tribunal. The said affidavit is placed in file and is also reproduced hereunder: On India non Judicial stamp paper of Rs.20/- 73AB 230529 TAMIL NADU A . N.Radha Krishnan Chennai 600 078

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02.12.2019 BEFORE THE INCOME TAX APPELLATE TRIBUNAL, CHENNAI I.T.A. No. 1503/2019 (A.Y. 2009-10) A.N. Radhakrishnan, Appellant Chennnai. AFFIDAVIT OF A. N. RADHAKRISHNAN I., A.N. Radhakrishnan, aged 80 years, S/o Athiyur Natesan, residing at No. 931, 11th Sector, 69th Street, K.K. Nagar, Chennai 600078 do hereby solemnly affirm and sincerely state as follows: 1. I am the Appellant in the above appeal and as such I am fully conversant with the facts of the case and competent to swear this Affidavit. 2. The order of the Assessing Officer levying penalty u/s 271(1)(c) dated 27.09.2016 was received by some of my family members on the same date. The appeal before the Commissioner of Income Tax (Appeals) ought to have been filed on or before 27.10.2016 but was filed only on 07.10.2017 with a delay of 345 days. 3. During this intervening period, I was admitted in Chennai Meenakshi Hospital, Mylapore, for my severe spinal cord problem coupled with hypertension and high blood sugar level. l am undergoing chemotherapy treatment also. The penalty order was not brought to my notice immediately by my family members only because of my precarious health condition. Only after I returned back home, the penalty order was brought to my notice. Immediately I instructed my Chartered Accountant to prepare and file the appeal. 4 I submit that the delay in filing the appeal is neither wilful nor wanton, but due to the circumstances mentioned above, which is clearly not in my control. I would be put to loss and hardship if the delay in filing the appeal before the Ld. CIT(A) is not condoned and the matter is not disposed on merits. 5. lt is, hence, prayed that this Hon'ble Tribunal be pleased to — (a) Condone the delay of 345 days in filing the appeal before the Commissioner of Income Tax (Appeals); (b) direct the Ld. CIT(A) to admit, hear and dispose of the appeal on merits in accordance with law; and pass such further order or orders as this Hon’ble Tribunal may deem fit and proper in the circumstances of the case and thus render justice. 6. I verify and state that what is stated in Paragraph 1 to 4 are true and correct. Sd/- Solemnly affirmed at Chennai, DEPONENT On this the 3rd day of December, BEFORE ME 2019 and signed in my presence

NOTARY PUBLIC M. P. Senthil Kumar, B.A,B.L.D.L.T Advocate & Notary

The learned counsel for assessee fairly submitted that in the interest of justice, the matter may be restored to the file of learned CIT(A) for fresh

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adjudication of all issues raised in its appeal with learned CIT(A) on merits in accordance with law. The learned DR objected to restoring the matter to the file of learned CIT(A) and submitted that assessee could not explain reasons for delay in filing appeal late before learned CIT(A) which led to dismissal of appeal of the assessee. We have carefully gone through material on record and contentions of both the parties including orders of authorities. We have observed that assessee filed its appeal with learned CIT(A) late by 345 days beyond the time prescribed u/s 249(2) of the 1961 Act . The learned CIT(A) has powers to admit appeal filed late beyond time prescribed u/s 249(2) of the 1961 Act if he is satisfied that the appellant has sufficient cause for not presenting appeal in time. The assessee has shown before us that he is a Senior Citizen of 80 years and is suffering from multiple diseases. Normally , no person will be benefitted by filing its appeal late beyond the time prescribed by statute. It is also well settled that whence technicalities are pitted against substantial justice, the Courts will normally lean towards substantial justice, unless malafide is shown to be at writ large on the part of litigant. There is no such allegation by Revenue that the assesse filed its appeal late with learned CIT(A) deliberately with some ulterior motive. Rather the assessee is a Senior Citizen of 80 years of age and has claimed to be suffering from multiple diseases. The affidavit to that extent is filed before us and is reproduce above in this order. We have no reasons to disbelieve version of assessee rather assessee being a Senior Citizen of 80 years of age deserve liberal approach in condoning the delay in filing appeal late with

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learned CIT(A). By condoning this delay what will happen at the most is that then the issues will be decided on merits by learned CIT(A) in accordance with law which could not be said to have prejudiced Revenue in any manner more-so no malafide in filing appeal late on part of the assessee has been brought on record by Revenue. No doubt, the opposite party has right to enjoy fruits of litigation whence the aggrieved party has not perused further litigation in time as the rights get crystalized and vested in favour of opposite party when aggrieved party donot file further litigation at higher forums in time , but Courts are vested with discretionary powers to condone delay’s in deserving cases and also keeping in view that substantial justice is paramount vis-à-vis technicalities. Thus, each case for condonation is to be decided on its own facts and merits . The facts may differ from case to case and there is no straight jacket formula for deciding application for condonation of delay . Thus, we in exercise of our powers u/s. 254(1) of the 1961 Act condone the delay in filing appeal late by 345 days with learned CIT(A) by assessee in the instant case as in our considered view the assessee has shown sufficient cause and hence we set aside appellate order dated 10.04.2019 passed by learned CIT(A) and restore the matter back to the file of learned CIT(A) for fresh adjudication. The learned CIT(A) is directed to adjudicate all the grounds raised by assessee in its appeal filed with learned CIT(A). Needless to say that the learned CIT(A) shall give proper and adequate opportunity of being heard to the assessee in accordance

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with principles of natural justice in accordance with law. We order accordingly.

Order pronounced in open court on the conclusion of the hearing on the 05th December , 2019 in Chennai.

Sd/- Sd/- (एन.आर.एस. गणेशन) (रमित कोचर) (N.R.S. GANESAN) (RAMIT KOCHAR) न्याधयक सदस्य/JUDICIAL MEMBER लेखा सदस्य/ACCOUNTANT MEMBER चेन्नई/Chennai, ददनाांक/Dated:05th December, 2019. KSS आदेश की प्रतततलतप अग्रेतषत/Copy to: 1. अपीलार्थी/Appellant 4. आयकर आयुक्त/CIT 2. प्रत्यर्थी/Respondent 5. तवभागीय प्रतततनति/DR 3. आयकर आयुक्त (अपील)/CIT(A) 6. गार्ड फाईल/GF