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Income Tax Appellate Tribunal, “B” BENCH, MUMBAI
AadoSa / O R D E R महावीर स ुंह, न्याययक दस्य/ PER MAHAVIR SINGH, JM: This appeal filed by the assessee is arising out of the order of Commissioner of Income Tax (Appeals)-I, Mumbai [in short CIT(A)], in appeal No. CIT(A)-I/E-I(24)/2014-15, dated 02.08.2017. The Assessment was framed by the Income Tax Officer(E), Ward-1(1), Mumbai (in short ITO/ AO) for the A.Y. 2012-13 vide order dated 27.10.2014, under section 143(3) of the Income-tax Act, 1961 (hereinafter ‘the Act’).
2 2. At the outset, it is noticed that the assessee has raised the ground that the CIT(A) has dismissed the appeal in limine without condoning the delay of 129 days despite the fact that reasonable cause was adduced before him. The learned Counsel for the assessee stated that before the Tribunal also there is a delay of 75 days and qua that condonation petition was filed. The assessee has filed condonation petition stated that the reasons and the relevant portion is being reproduced as under: - “1. The Trust is assessed to tax with the Income tax officer (E) 1 (1), Mumbai.
We received the order dated 02-08-17 passed by the CIT (A)-1 for the A.Y. 2012-13 on 22- 09-17.
3. The appeal against the said order was required to be filed within 60 days of the receipt of the order i.e. on or before 21-11-2017 but was (lied on 05-02-18, thus there is a delay of 75 days.
When we consulted the professional recently we were advised that the only course of action is to submit an appeal to the Income Tax Appellate Tribunal as was also done for earlier A.Y. 2009-10 and 2010-11 in order to keep alive the proceeding before tax authorities.”
When these facts were confronted to the learned Sr. Departmental Representative, she contested the condonation of delay.
After hearing both the sides and going through the facts, we noted that cause stated is reasonable and hence, we condone the delay and admit the appeal.
3 4. The only issue in this appeal of assessee is that the CIT(A) has dismissed the appeal in limine without condoning the delay of 129 days despite the fact that reasonable cause was adduced before him. For this assessee has raised the following ground: - “I. The Appellant Trust, being aggrieved by the order dated 02.08.2017 received on 22.09.2017 passed by CIT (A), Mumbai 1, in Appeal No. CIT (A)-l/E-I (24)1201445 for the Assessment Year 2012-2013, prefers this appeal on the grounds, amongst other, each of which is without prejudice to the others, which are set out herein in Statement of Fact/Memorandum of appeal.
2. The Ld. CIT (A) Mumbai 1, erred in law in dismissing the appeal filed by the Appellant Trust on technical ground of limitation without appreciating the (acts and circumstances of the case & denying the condonation of delay of 129 days in filling appeal before CIT(A)-
1. 1.
3. The Id CIT (A) Mumbai 1, erred in law in denying substantial justice to the Appellant Trust by not considering & apprising the facts and merits in proper perspective and dismissing the appeal as not admitted.
4. The order of CIT (A) may kindly be set aside by condoning the delay in filling appeal the case may kindly be heard on facts and merits.”
Now, before us, the learned Counsel for the assessee filed copy of order of Hon’ble Bombay High Court in assessee’s own case for AY 2009-10, wherein delay on exactly identical facts was condoned by 4 Hon’ble Bombay High court by directing the assessee to deposit a sum of ₹ 50,000/- vide Para 7 as under: - “7. In view of such facts and circumstances, taking a liberal view of the delay, the delay not condoned in filing the Appeal before the Tribunal, is ordered to be condoned. The Assessee shall deposit a sum of Rs.50,000/- (Rupees Fifty Thousand Only) by way of costs with the High Court Legal Aid Services within two weeks from today. The question is answered in favour of the Assessee. The impugned decision of the Tribunal is reversed. The Tribunal shall decide the Assessee's Appeal on merits.”
On the same reasoning, we also condoned the delay and direct the assessee to deposit a sum of ₹ 25,000/- to High Court Legal Aid Services. We noted that learned Departmental Representative relied on the order of CIT(A) for AY 2009-10 and dismiss this appeal in limine by observing in Para 6 as under: - “6. The issue and the facts in present case are identical to the issue and facts of the A.Y. 2009-10. I also note that the appeal for the A.Y. 2009-10 was filed by the assesse on 31.10.2013 and for the condonation of the delay in filing the appeal, the appellant had stated that they were not aware of the further action to be taken in respect of the order u/s. 143(3) which was communicated to them in the month of December, 2011 and when they consulted the professionals, they were advised that the only course of action was to submit the appeal to Commissioner of Income Tax (Appeals). I further note that the order u/s. 143(3) for the A.Y. 2012- 13 was communicated to the assesse on 03.11.2014 5 and the assesse has filed the appeal after a delay of 129 days. The reason given by the assessee for explaining this delay as the same as was given by it for the A.Y. 2009-10. By its own admission, the assesse was aware that if at all any appeal is to be preferred by it before the CIT(A), it was to be done within 30 days from the receipt of the assessment order. Therefore, the reason now given by the assesse explaining the delay in filing the appeal for the A.Y. 2012-13 cannot be accepted to be correct or satisfactory.
In view of the aforesaid reasons, the appeal filed by the assessee is not admitted.”
We noted that on the same reasoning, the Hon’ble High Court has condoned the delay. Respectfully, following the Hon’ble High Court, we condone the delay before CIT(A) and direct the CIT(A) to decide the issue on merits. The assessee will show the proof of payment of this cost to be paid to legal Aid Services of Hon’ble High court of ₹ 25,000/- to CIT(A) before the commencement of the proceedings.
In the result, the appeal of assessee is allowed for statistical purposes.
Order pronounced in the open court on 12.06.2019. (एन. के. प्रधान/ NK PRADHAN) (महावीर ससंह /MAHAVIR SINGH) (लेखा सदस्य / ACCOUNTANT MEMBER) (न्याययक सदस्य/ JUDICIAL MEMBER) मुंबई, ददनांक/ Mumbai, Dated: 12.06.2019. दीप रकार, व.यनजी धिव / Sudip Sarkar, Sr.PS