SEASTEM LIMITED,JAMNAGAR vs. ACIT CIR - 1,, JAMNAGAR

That the assessee filed an appeal against the order dated 29.12.2019 of the AO, in the office of the Ld. CIT(A), (NFAC) Rajkot. The Ld. CIT(A) has dismissed the appeal with following observation:

That the assessee has filed an appeal against the impugned order dated 28.02.2023 before the Tribunal.

Your honour may kindly appreciate that appellant is unaware of passing of order by Ld. CIT(A), which was served online. When appellant comes to know about dismissal of appeal by LD. CIT(A), immediately she has approached Chartered Accountant for filing of appeal.

Your honour may kindly appreciate that there was no ill motive behind not filling appeal in time.

This being meritorious case, we kindly request your honour to condonation delay in filing appeal and decide the case on merits.”

During the Course of hearing of the case, the Ld. AR submitted that the assessee is not having knowledge about online order passed by the Ld. CIT(A), when the assessee came to know about the appeal is dismissed by the Ld. CIT(A), the assessee immediately approached to the new CA (Appellant Representative) for filing the appeal. In view of the above, the Ld. AR prayed for condonation of delay in filing the appeal and one more opportunity for hearing may kindly be given to the assessee to present the case before authority.

On the other hand, the Ld. Sr. DR has relied upon the order of the Ld. CIT(A) and not objected to the prayer of the Ld. AR for condonation of delay. 9. We have heard both the parties and perused the documents available on record. We note that delay of filing the appeal before this Tribunal was that the assessee was not having knowledge about the case proceedings. The Ld. AR relied on judgement of the Hon’ble Supreme Court. In Collector, Land Acquisition. Anantras Mst. Kat&Ors (1987). SCC 107] (AY 2017-18) Seastem Limited Jamnagar a Bench of two Judges considered the Ges the state and held that Section s of the limitation in an appeal fied by ented in order to enable the court to do substantial justice to the parties by disposing of matters on merits. The expression "sufficient cause is adequately elastic to life the court to apply the law in A meaningful manner which subserves the ends of the justice that being the life-purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberate approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. This Court reiterated that the expression "every day's delay must be explained" does not mean that a pedantic approach should be made. The doctrine must be applied in a rational common sense pragmatic manner. 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. 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 fact he runs a serious risk. Judiciary is not respected 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. The fact that it was the State which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step-motherly treatment when the State is the applicant. The delay was accordingly condoned. The courts, therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression of sufficient cause. Merit is preferred to scuttle a decision on merits in cause of the community, does not turning down the case on technicalities of delay in presenting the appeal. Delay was accordingly condoned, the order was set aside and the matter was remitted to the High Court for disposal on merits after affording opportunity of hearing to the parties.” After considering the reason explained by the Ld. AR, the assessee was not aware of online proceedings going on before the Ld. CIT(A) in the case of the assessee. There was no service of notice or impugned order through physical mode upon the assessee, therefore, the assessee did not have any information about fixation of hearing or passing the impugned order. There is no letheragy, negligence mala fide intention or motive of assessee in making delay in filing the appeal. In the absence of any contrary fact on record the assessee found to have a sufficient cause for delay in filing the present appeal. We find that sec. 253(5) of the Act empowers the Tribunal to admit an appeal after the expiry (AY 2017-18) Seastem Limited Jamnagar of prescribed period, if there is sufficient cause for not presenting the appeal within the prescribed time, having a justice, orient approach and taking into account the provision of s. 253(5) of the Act. We take a judicious view that we condoned the delay of 381 days in filing the appeal and the appeal heard on merit.

We note that the assessee has not made the compliance with the notices for hearing issued by the Ld. CIT(A). We note that the assessee was not aware about the online proceedings. The Ld. CIT(A) issued three notices for filing the submission dated 07.02.2021, 06.02.2021 & 13.02.2021, but there was no response submitted by the assessee. Besides this, the Ld. CIT(A) dismissed the appeal of the assessee by passing an ex-parte order, after considering the material available on record. we further note that the Ld. AO passed assessment order was also ex-parte. Therefore, we are of the view that one more opportunity should be given to the assessee to present his case before the Ld. AO. We remand the matter back to the file of the Ld. AO for fresh adjudication, after giving due opportunity of being heard to the assessee. We direct the assessee to participation in the hearing of the case, fixed by the Ld. AO and do not seek for unnecessary adjournment.

In the result, the appeal of the assessee is allowed for statistical purposes.