ARVIND METALS & MINERALS PRIVATE LIMITED,KOLKATA vs. DCIT, CIRCLE - 4(1), KOLKATA, KOLKATA

आदेश /O R D E R PER S.S.Godara, Judicial Member:- This assessee’s appeal for assessment year 2013-14 arises against the Commissioner of Income Tax (Appeals)-2, Kolkata’s order dated 20.07.2018 passed in case No.10058/CIT(A)-2/17-18, involving proceedings u/s 143(3) of the Income Tax Act, 1961; in short ‘the Act’. Heard both the parties. Case file perused. 2. Learned authorized representative’s only plea during the course of hearing is that CIT(A) has erred in law and on facts in not condoning the delay of 320 days’ in filing of the lower appeal despite the fact that he had called for a remand report from the Assessing Officer on various issues. The Revenue’s

ITA No.1785/Kol/2018 A.Y.2013-14 Arvind Metals & Minerals Pvt. Ltd. Vs. DCIT, Cir-4(1), Kol. Page 2 case on the other hand is that the CIT(A) has rightly declined the condonation of the above stated delay as under:- “Delay filing of appeal The order in this case was served to the assessee on 01.06.2016 as per Form 35 filed by the assessee and the appeal was filed on 17.05.2017, which is delayed. The assessee has mentioned reasons for delay filing the appeal in the Form 35 while filing the online appeal as under:- 1. That the appellant Company received order U/s 143(3) alongwith demand notice etc., on 01.06.2016. 2. That the due date of filing appeal as reckoned from date of receipt expired on 30.06.2016. 3. That appeal u/s.1246A against order us. 143(3) dated 29.03.2016 could not be filed in time because of compelling reasons explained below: (i) The Managing Director looking after the entire affairs of the Company including taxation matter was not well and ultimately admitted to the hospital during the material time and he had to go through cervical spine surgery. (ii) Even after release from the hospital he was advised bed rest for six months. (iii) The managing Director was ultimately allowed to join his duties in January 2017, with restricted movement and minimum pressure of work free from any tension. (iv) Subsequently, in the month of Fe. 2017 he was suffering from eye problem and ultimately Cataract survey was made in the last week of February 2017. (v) In the process, the matter of filing appeal against order u/s.143(3) dated 29.03.2016 escaped attention. (vi) The adverse order was ultimately discussed with the legal representative in last week of April 2017 who asked for certain documents. The required documents were handed over to the legal representative on 09.05.2017. (vii) The legal representative took 7 days time for study of case papers, drafting grounds of appeal and finalization etc., In the circumstances, it is prayed that your Honour may be pleased to accept the enclosed appeal papers by condoning the delay of 320 days.

The AR of the appellate has also file his submissions at the time of appellate proceeding regarding condonation of delay filing of appeal vide his letter dated 18.07.2018 as under:- ‘In respect of Condonaton of delay, we submit as under:- A perusal of the Condonation petition clearly point towards medical reasons which should be held to be sufficient for condoning the delay and deciding the appeals on merits of the case. In view of the medical examination papers and discharge summary report of Breach Candy Hospital, Mumbai it should be held that the delay in filing appeal is not intentional or deliberate with a view to gain any undue advantage by the appellant. We place our reliance upon following decisions: (i) Rafiq vs. Munshilal, AIR 1981 SC 1400 (ii) Collector, Land Acquisition, Anantanag Vs. Katiji AIR 1987 SC 1353

ITA No.1785/Kol/2018 A.Y.2013-14 Arvind Metals & Minerals Pvt. Ltd. Vs. DCIT, Cir-4(1), Kol. Page 3 (iii) S. Ganeshraju (Deceased) Through LRs Vs. Narasemma (Deceased) Through LRs & other (2013) 11 SCC 341 Your Honour, it is submitted that the appellant does not stand to benefit by filing the appeal late. If the delay is not condoned it can result in meritorious matte being thrown out at very threshold as the AO has accepted all the arguments of appellant in remand report dated 06.07.2018. In fact, if the delay is condoned the highest that can happen is that the matter will be decided on merits after considering the assessment order, written submission and remand report. We are enclosing herewith an Affidavit in support of our contention regarding delay in filing of appeal along with discharge summary report of Breach Candy Hospital, Mumbai Reliance is placed on the judgment of Hon'ble Supreme Court in the case of N. Balakrishnan Vs. M. Krishnamurthy reported in (1998) Air ()SC) 3222 wherein it has held as under:- ’12 A court knows that refusal to condone delay would result in foreclosing a suit or from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the word “sufficient cause” under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jam v. Kuntal Kumari (A/R 1969 SC 575 (1969) 1 SCR 1006) and State of WB v. Administrator, Howrah Municipality (1972) 1 SCC 366: A/R 1972 SC 749) 13. It must be remembered that in every case of delay, three can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanting does not smack of mala fides or it is not put forth as art of a dilator strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the curt should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to latches on the part of the appellant, the court shall compensate the opposite party for his loss.’ Reliance is also placed on the judgment of the Hon'ble Supreme Court in the case of Collector, Land Acquisition, Anantnag & Anr. Vs.Mst. Katiji & Ors. (1987) 167 ITR 471 (SC) has held as under:- ‘4. 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 facts he runs a serious risk. 6. 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. Making a justice oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal….’

ITA No.1785/Kol/2018 A.Y.2013-14 Arvind Metals & Minerals Pvt. Ltd. Vs. DCIT, Cir-4(1), Kol. Page 4

In view of the above, the delay in filing the appeal by the assessee before Your Honour deserved to be condoned.” I have considered the application of the appellate for condonation of delay filing of appeal. On the basis of reply and affidavit filed by the appellate company the date sheet of the case is as under:- Narration Dates Remarks Date of order 29.03.2016 Date of service of the order 01.06.2016 Due date of filing the appeal 30.06.2016 No action was taken during June 2016 to Feb 2017 It is Nin Months’ time with the this period appellate Eye operation • Date of admission - The appellate was having whole of the March, April and 27.02.2017 half of the May to file the • Date of discharge – appeal. 27.02.2017 • Follow up – 28.02.2017 and 07.03.2017 • Follow up for glasses – 31.03.2017 Cervical spine surgery The appeal was filed during • Date of admission - this period i.e. on 14.05.2017 17.05.2017. • Date of discharge- 26.05.2017 Shri Sudarshan Kumar Newar filed an affidavit regarding delay filing the appeal stating as under:- I, SUDARSHAN KUMAR NEWAR son of LT KISHAN LAL NEWAR in my capacity as a director of M/s Arvind Metals & Minerals (P) Ltd., having its registered office at 23/24 Radha Bazar Stdreete,Kolkata-700001 do hereby solemnly affirm on oath and declare as follows:- 1. That the appellant Company received order u/s.143(3) along with demand notice etc., for A.Y 2013-14 on 01.06.2016. 2. That the due date of filing appeal as reckoned from date of receipt expired on 30.06.2016. 3. That the appeal u/s 246A against order u/s. 143(3) dated 29.03.2016 could not be filed in time because of compelling reasons specified hereunder. 4. That the Managing Director looking after the entire affairs of the Company including taxation matter was not well and ultimately admitted to the hospital during the material time and he had to go through cervical spine surgery. 5. That even after release from the hospital he was advised bed rest for six months. 6. That the Managing Director was ultimately allowed to join his duties in January 2017 with restricted movement and minimum pressure of work free from any tension. 7. That subsequently, in the month of Feb’ 2017 he was suffering from eye problem and ultimately Çataract surgery’ was made in the last week of February 2017. 8. That in the process, the matter of filing appeal against order U/s 1543(3) dated 29.03.2016 escaped attention.

ITA No.1785/Kol/2018 A.Y.2013-14 Arvind Metals & Minerals Pvt. Ltd. Vs. DCIT, Cir-4(1), Kol. Page 5 9. That the adverse order was ultimately discussed with the Legal representative in last week of April, 2017 who asked for certain documents. The required documents were handed over to the legal representative on 09.05.2017 who took 7 days time for drafting etc and ultimately the appeal was filed on 17.05.2017 resulting in delay of 320 days. That the statements made at 1 to 9 are true and correct to the best of my knowledge and belief. While going through the date chart as mentioned above and affidavit, it is clear that Shri Sudarshan Kumar Newar has filed a false affidavit with wrong facts. The order was served on -01.06.2016 and his eye cataract surgery was done in 27.02.2017 and thereafter he was admitted in the hospital during the period of 14.05.2017 to 26.05.2017 for another cervical spine surgery and the appeal was filed during this period i.e. on 17.05.2017. The Appellate company did not taken any action or tried to file appeal during the period of June, 2016, 2016 to May,2017. The paras 4 to 5 of the affidavit says that the cervical spine surgery was done firs and thereafter as per para 6 to 8 of the said affidavit the eye operation was done but as per hospital papers as filed with the affidavit reveals that the eye operation was done first in Feb, 2017 and thereafter the spine surgery was done in May,2017. Hence, it is false affidavit with wrong facts to justify the delay filing of appeal by the appellate company and its director Shri Sudarshan Kumar Newar. Shri Sudarshan Kumar Newar is trying to justify the delay by filing the wrong facts and false affidavit. This type of explanation with wrong facts and false affidavit as given by the representative of the assessee is false, vague and evasive and does not constitute sufficient cause as is required to condone the delay under the law of limitation. It is a case of gross negligence, inaction and latches not only on the part of the assessee but also on the part of his representative. All these facts show sheer negligence, carelessness and non-application of mind on the part of the representative of the assessee. The explanation and affidavit put forward is false, vague and evasive and does not constitute any sufficient cause for condonation of delay. There is no merit in the case of the assessee for condonation of delay. This is not a case wherein the appellant is an illiterate person, who may not know the repercussion in law. The Supreme Court in the case of Swadeshi Cotton Mills Co. Ltd. v. Government of U.P. [1974] 4 SCC 378, has held that ignorance of law is not an excuse for not taking appropriate steps within limitation. Keeping in view of above, the request of the appellate for condonation of delay of appeal is hereby rejected.” 3. We have given our thoughtful consideration to rival contentions. We make it clear that the assessee’s sole grievance at this stage is only that the CIT(A) ought to have condoned the delay of 320 days’ in filing of the lower appeal. We wish to reiterate that there is no rebuttal coming from the department side that the CIT(A) had first sought a remand report and then rejected assessee’s condonation petition. It is therefore clear that the assessee had made out a case of ill health of its managing director indicating

ITA No.1785/Kol/2018 A.Y.2013-14 Arvind Metals & Minerals Pvt. Ltd. Vs. DCIT, Cir-4(1), Kol. Page 6 cataract surgery and other ailments. That being the case, the same sufficiently indicated that the above stated delay of 320 days’ in filing was neither intentioned nor deliberate but on account of persistent health problems only. Hon'ble apex court’s decisions (supra) settled the law long back all technical consideration must give way to the cause of substantial justice. We therefore conclude that the assessee’s condonation petition filed before the CIT(A) sufficiently proved that the impugned delay of 320 days’ was on account of circumstances beyond its control. The same stands condoned therefore and the CIT(A) is directed to adjudicate all substantive grounds on merits in terms with sec. 250(6) of the Act as per law within three effective opportunities of hearing. 4. This assessee’s appeal is allowed for statistical purposes. Order pronounced in the open court 31/01/2020 Sd/- Sd/- (लेखा सद&य) (�या(यक सद&य) ( A.L.Saini) (S.S.Godara) (Accountant Member) (Judicial Member) Kolkata, *Dkp )दनांकः- 31/01/2020 कोलकाता । आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. अपीलाथ�/Appellant-Arvind Metals & Minerals Pvt. Ltd, 23/24, Sethia House, Radha Bazar Street, Kolkata-700001 2. ��यथ�/Respondent-DCIT, Cir-4(1), Aaykar Bhawan, P-7, Chowringhee Sq. Kolkata-69 3. संबं4धत आयकर आयु5त / Concerned CIT Kolkata 4. आयकर आयु5त- अपील / CIT (A) Kolkata 5. 8वभागीय �(त(न4ध, आयकर अपील�य अ4धकरण, कोलकाता / DR, ITAT, Kolkata 6. गाड= फाइल / Guard file. By order/आदेश से, /True Copy/ सहायक पंजीकार आयकर अपील�य अ4धकरण, कोलकाता ।