BRIHAN MUMBAI KREEDA & LALITKALA PRATISTHAN,MUMBAI vs. ITO (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.

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.”

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.

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.

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.