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Facts
The assessee, a senior citizen and housewife, faced a delay in filing an appeal before the CIT(A) due to not being accustomed to e-proceedings and not receiving timely notices. The CIT(A) dismissed the appeal without condoning the 71-day delay. Subsequently, the assessee also faced a delay in filing an appeal before the ITAT.
Held
The Tribunal, considering the assessee's status as a senior citizen and housewife, and that substantial justice should be preferred over technical considerations, condoned the delay of 169 days in filing the appeal before the ITAT. The Tribunal also directed the CIT(A) to condone the 71-day delay in filing the appeal before him, subject to a cost.
Key Issues
Whether the delay in filing the appeal before the CIT(A) and ITAT was to be condoned, and whether the matter should be decided on merits.
Sections Cited
250, 253(3), 253(5), 147, 148, 69, 144B, 250(6)
AI-generated summary — verify with the full judgment below
Before: SHRI PAWAN SINGH & SHRI BIJAYANANDA PRUSETH
आदेश / O R D E R
PER BIJAYANANDA PRUSETH, AM:
This appeal by the assessee emanates from the order passed under section 250 of the Income-tax Act, 1961 (in short, ‘the Act’) dated 28.02.2024 by the learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi [in short, ‘CIT(A)’] for the assessment year (AY) 2014-15.
The grounds of appeal
raised by the assessee are as under: “1. The learned CIT(A) grossly erred in dismissing the appeal on issue of non-condonation of delay in filing the appeal for 71 days though delay was for reasonable cause.
2. The learned CIT(A) grossly erred in confirming the additions by dismissing the appeal on ground of delay.
/AY.2014-15 Saroj Tilakraj Juneja 3. the learned CIT(A) grossly erred in not appreciating the ground regarding stay of reassessment proceedings by the Hon’ble Gujarat High Court for this particular year. 4. The appellant reserves right to add, alter and withdraw any grounds of appeal
.”
3. The appeal filed by assessee is barred by 169 days in terms of provisions of section 253(3) of the Act. The learned Authorized Representative (ld. AR) filed an affidavit of the assessee where it is submitted that the assessee is a senior citizen house wife and is not used to verify e-proceedings either on e-mail or mobile. It is also submitted that at the time of assessment proceedings also, no notice was issued on assessee’s e-mail address and all notices were simply uploaded on her portal. It is stated that the notice ought to be sent on her e-mail address. The assessee came to know in the month of September, 2023 that ex parte order has been passed in May and recovery notice was sent at her address in September. Hence, appeal to CIT(A) was filed late by 71 days. No message was received at the time of passing of appellate order. She came to know about the appellate order of CIT(A) when the AR of assessee opened the portal for filing return of income. Therefore, delay of 5 months has occurred in filing the appeal before ITAT. Hence, the ld. AR requested to condone the delay in filing before ITAT.
4. On the other hand, learned Senior Departmental Representative (ld. Sr. DR) for the revenue submitted that the reasons given by the appellant /AY.2014-15 Saroj Tilakraj Juneja are general in nature and appellant has not established sufficient cause for not filing appeal in time.
We have heard both the parties on this preliminary issue of delay of 169 days. The appellant has stated that she is a senior citizen and was not used to e-proceedings either on e-mail or mobile. At the same time, she had submitted the notice ought to be sent at least on mail address. She came to know about the ex parte order only when recovery notice was sent to her address. She had not received any message about the appellate order. Only when the e-filing portal was opened to file return of income, she came to know about the appellate order. Hence, impugned delay has occurred. We find that the reasons given by the appellant are general in nature without proper elaboration. However, we find that assessee is a senior citizen and house wife and the delay is inordinate. The expression "sufficient cause" used in section 253(5) of the Act is sufficiently elastic to enable the Tribunal to apply the law which subserves the ends of justice. It has been held in a number of cases that when substantial justice and technical considerations are pitted against each other, the 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. Hence, we condone the delay of 169 days and admit the appeal for hearing.
Brief facts of the case are that the assessee filed return of income for AY.2014-15 on 30.08.2014, declaring income of Rs.17,31,010/-. Based on /AY.2014-15 Saroj Tilakraj Juneja information received from the Investigation Wing that assessee had invested unaccounted money in a project by the name West Field Shopping Centre, the case was reopened u/s 147 and notice u/s 148 was issued on 29.06.2021. Subsequently, Assessing Officer (in short, ‘AO’) issued various notices on eight occasions but no reply was filed by the assessee. Therefore, AO added Rs.2,66,01,850/- u/s 69 of the Act, being payment of unaccounted on-money in cash of Rs.2,66,01,850/- over and above document rate of Rs.48,50,000/- as per the registered deed.
Aggrieved by the order of AO, the assessee filed this appeal before the CIT(A). The appeal was filed late by 71 days. The appellant had filed application for condonation of delay which is extracted at para 2 of the appellate order. In the said application, the assessee submitted that the order of AO was not issued on mail of AR and it was simply uploaded on portal. The assessee came to know about the order only when penalty notice was received on mail. It was submitted that there was reasonable cause and the delay may be condoned. The CIT(A) did not accept the explanation of assessee because the impugned order was passed under faceless assessment scheme where notices are automatically despatched to assessee’s mail, eliminating concern about non-delivery. The mails were directed at the email Id of the assessee. Hence, the CIT(A) observed that assessee failed to furnish plausible explanation for the delay and therefore /AY.2014-15 Saroj Tilakraj Juneja he did not condone the delay and dismissed the appeal with no comments on the grounds of appeal
8. Aggrieved by the order of CIT(A), the assessee filed appeal before the Tribunal. The learned Authorized Representative (ld. AR) of the assessee submitted the affidavit for condonation of delay and filed additional ground regarding validity of re-assessment proceedings.
9. On the other hand, the learned Senior Departmental Representative (ld. Sr. DR) for the revenue stated that the delay in filing appeal before ITAT is not satisfactorily explained. He requested to reject the prayer of appellant to condone the delay.
10. We have heard both the parties and perused the materials available on record. The AO has passed the order u/s 147 r.w.s. 144B of the Act after observing that assessee chose not to file any reply till passing of the order. The CIT(A) has refused to condone the delay of 71 days and dismissed the appeal in limine without discussing the appeal on merit. We have already condoned the delay of 169 days in filing appeal before Tribunal by the assessee in para 5 of this order. The reasons given by assessee before CIT(A) was almost similar to the reasons given by the assessee before the Tribunal. Hence, following the reasons given by us at para 5 of this order, the CIT(A) is directed to condone the delay of 71 days in filing appeal before him and decide the case on merit as per the mandate u/s 250(6) of the Act subject to payment of cost of Rs.25,000/- (Rupees twenty-five thousand only) by the /AY.2014-15 Saroj Tilakraj Juneja assessee to the credit of the ‘Gujarat High Court Legal Aid Authority’ within two weeks from receipt of this order. Subject to payment of above cost, we set aside the order of CIT(A) and remit the matter back to the file of CIT(A) with a direction to pass fresh order u/s 250 of the Act in accordance with law after granting adequate opportunity of hearing to the assessee. The assessee is directed to be more vigilant and diligent and to furnish all the details and explanations as needed by the CIT(A) by not seeking adjournment without valid reasons. The assessee is also given the liberty to raise any issue in accordance with law. We make it clear that we have not expressed any opinion on the merits of the case. The ground is allowed for statistical purposes.
In the result, appeal of the assessee is allowed for statistical purpose. Order is pronounced in the open court on 13/01/2025.