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Income Tax Appellate Tribunal, BANGALORE BENCH ‘SMC-C’, BANGALORE
Before: SHRI A.K.GARODIA, ACCOUNANT MEMBER
Assessee by : Shri Tulajappa Kalburgi, Advocate Revenue by : Shri Balakrishnan .N, Addl. CIT (DR) Date of hearing : 21-02-2019 Date of pronouncement : 27-02-2019 O R D E R PER A. K. GARODIA, A.M.: This appeal is filed by the assessee and it is directed against the order of CIT (A) – Hubballi dated 22.10.2018 for A. Y. 2011 – 12.
The grounds raised by the assessee are as under:- Tax effect relating to each Sl No. Grounds ground of appeals
(a) That the learned Respondent erred in dismissing an appeals declining to condone the delay on the ground that Rs. 1,42,341/- 1 the explanation given by the an appellant assessees to condone the delay was untenable without laying due emphasis on the report of pathologist and of ultrasonography. An appellant assessee explained the reasons for delay in filing an appeal by written argument dated 31-5-2018 and submitted that the delay of 327 days reckoned from date of rectification of order u/s 154 may be taken instead of delay 586 days reckoned from the date of the impugned order. (b) The learned Respondent ought to have consider the ratio emerged in decision of Hon'ble Supreme Court in Collector, Land Acquisition v. Mst. Katiji and Ors. (1987) 167 1TR 471 (SC) wherein it was observed that 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 a vested right in injustice being done because of a non-deliberate delay and principal laid out in Esha Bhattacharjee V. Managing Committee of Raghunathpur, Nafar Academy and others 2013 (5) CTC 547. That the addition made to the returned income by the Income tax officer was without any necessary finding therefore the order passed is arbitrary, illegal and bad in law liable to be quashed.
That the Appellant-assessee seek leave of this Hon'ble Tribunal to raise all other grounds in 2 support of their contention at the time of arguments. 3 Total Tax effect Rs.1,42,341/-
Learned AR of the assessee reiterated the same contentions which were raised before CIT (A) for condoning the delay of 586 days in filing the appeal before CIT (A). He submitted that the affidavit filed before CIT (A) in this regard is available on pages 14 & 15 of the Appeal Memo. He pointed out that as per this affidavit, this is the submission of the assessee that his income mainly consisted of deemed income declared u/s 44AE and share of profit from firm. He also pointed out that in reply to notice u/s 148, the assessee filed return himself without any professional help. He submitted that he approached a chartered accountant also but he declined to take up his case for the attitude of the assessee regarding payment of fees. He submitted that under these facts, the delay should be condoned. He placed reliance on a judgment of Hon’ble apex court rendered in the case of MST. Katiji & others as reported in 167 ITR 471. Learned DR of the revenue supported the order of CIT (A) and submitted that no reasonable cause for delay in filing the appeal could be shown by the assessee and hence, the delay should not be condoned.
I have considered the rival submissions. In Para 3 of his order, it is stated by CIT (A) that it was the explanation of the assessee about delay in filing of appeal of 586 days that the delay is due to illness but as per the affidavit of the assessee, the main reason given by the assess for delay is this that the assessee was not aware about the requirement of filing appeal. In Para 4 of his order, learned CIT (A) has stated that since the assessee was able to maintain books of accounts for hiring of car and has multiple bank accounts, it cannot be said that the assessee is an ignorant person who is unaware of the provisions of law. For ready reference, I reproduce Para 3 & 4 from the order of CIT (A). These are as under:- “3. In the course of appellate proceedings, the assessee submitted that the delay in filing of appeal of 586 days was due illness of the assessee. The assessee submitted copy of pathological report and ultrasound report Dt.26.06.2017, to show that he had mildly high levels of cholesterol and that he had normal sized bladder and biliary tract and that his ultrasound report showed that he had normal functions. The AR was unable to explain as to how the delay in filing of appeal on grounds of ill health was reasonable, given that the assessee was not hospitalised and was quite healthy, for a 51 year old man, and was admittedly carrying on all his normal business activities. He has also failed to adduce details or proof in support of the legal grounds raised
in the grounds of appeal.
4. The assessee is a partner in a firm carrying on business and runs proprietary business of hiring of car and transport business. He is able to maintain books of accounts for hiring of car and has multiple bank accounts. Thus, the assessee cannot be said to be an ignorant person who is unaware of the provisions of law, as running a transportation business and hiring of cars requires compliance with various facets of law and dealing with various agencies. He had also failed to appear or respond to the opportunities afforded to him during the course of assessment proceedings.”
5. In the light of these facts, now I examine the applicability of the judgment of Hon’ble apex court rendered in the case of MST. Katiji & ors. (Supra). Ratio of this judgment is this that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred. Respectfully following this judgment, I hold that in the facts of the present case, the delay deserves to be condoned. I condone the delay and restore the matter back to CIT (A) to decide the appeal of the assessee on merit after granting adequate opportunity of being heard to both sides. In view of this decision, no adjudication on merit is called for at the present stage.
In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on the date mentioned on the caption page.