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Facts
The assessee filed an appeal which was time-barred by 952 days. The assessee cited serious illness of their mother and change of advocate as reasons for the delay. The Revenue opposed the condonation of delay, citing a Madras High Court judgment.
Held
The Tribunal acknowledged the statutory right to appeal and the conditions under which delays can be condoned, emphasizing the need for sufficient cause and considering bona fides and due diligence. Despite the delay, the Tribunal condoned it, finding the reasons provided by the assessee to be substantial enough to advance justice.
Key Issues
Whether the delay in filing the appeal can be condoned due to the serious illness of the assessee's mother and change of advocate; Whether the CIT(A) erred in dismissing the appeal without providing adequate opportunity of hearing.
Sections Cited
253(3), 253(5)
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Income Tax Appellate Tribunal, CUTTACK BENCH, CUTTACK
Before: S/SHRI DUVVURU RL REDDY(KZ) & RAJESH KUMAR
Assessment Year : 2017-18 Tapan Kumar Sethy Vs. ITO, Ward-2(4), Purighat Road, Telenga Bazar , Cuttack Cuttack- 753009 PAN/GIR No. BLZPS 1048 F (Appellant) .. ( Respondent) Assessee by : Shri Sudhanshu Kr Das, AR Revenue by : Shri Prateek Kr Mishra, Sr. DR Date of Hearing : 02 /07/2025 Date of Pronouncement : 02 /07/2025 O R D E R Per Bench The present appeal is directed at the instance of assessee against the order of ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NAFC), New Delhi NFAC), Delhi dated 15/06/2022 in Appeal No.CIT(A), Cuttack/10917/2019-20 passed for Assessment Year 2017-18.
The appeal is time barred by 952 days. The assessee has filed condonation petition dated 7.4.2025 supported with affidavit stating the reasons that due to serious illness of the assessee’s mother and change of P a g e 1 | 5 conducting advocate, the second appeal could not be filed within the stipulated period, therefore, there was delay of 952 days. In support of the illness of his mother, the assessee has filed medical certificate and prescription alongwith statement of bank account. It is prayed that the delay in filing the appeal be condoned.
On the other hand Ld. Sr. D.R. submitted that the delay is inordinate and therefore vehemently opposed to condone such a huge delay and relied upon Madras High Court Judgment in the case of Royal Stitches (P.) Ltd. Vs. DCIT reported in [2023] 156 taxmann.com 361 (Madras) wherein it is held that where assessee had not given 'sufficient cause' for condoning huge delay in filing appeal, therefore, the delay could not be condoned.
We have considered the rival submissions and also the condonation petition filed by the assessee. It is an undisputed fact that the assessee has right to appeal against the order. The right to appeal is a statutory right and it can be circumscribed by the condition in the grant. If a statute gives right to appeal upon certain conditions, it is upon fulfilment of those conditions that the right becomes vested in and exercisable by the appellant. As per section 253(3) of the Act, an appeal is required to be filed by the assessee or the Department within sixty days from the date of communication of the order to be appealed against on the assessee or the CIT, as the case may be and under s. 253(5), Tribunal may admit an appeal
P a g e 2 | 5 after expiry of relevant period referred to in s. 253(3) if it is satisfied that there was sufficient cause for not presenting the appeal within that period. No doubt, it is specifically provided that appeal can be admitted after the prescribed period if the assessee satisfies the Tribunal that the assessee had sufficient cause for not preferring the appeal within period as prescribed. The appeal preferred or made after the expiry of the prescribed period can be admitted only if the assessee satisfied the Tribunal that there was sufficient cause for not preferring the appeal within such period. The Tribunal has power to condone the delay only when sufficient cause is shown with a view to advance substantial justice and even after sufficient cause has been shown the party is not entitled to condonation of delay, as a matter of right. If sufficient cause is shown then Tribunal has to enquire, whether in its discretion, it should condone the delay, consideration of bona fides or due diligence is always material. Since all other circumstances are also to be taken into account before applying the provisions of law in this regard and in this case the assessee did not file the appeal within due time in this case and cause shown by it does not conclusively show that same is reasonable or sufficient. The cause shown by the assessee in the petition is that his mother was seriously ill and for her treatment, he was under mental depression. In support of the illness, the assessee has submitted bank statement as well as purchased of medicines for her month. Considering the above as also the assessee would not get any benefit by P a g e 3 | 5 delaying the appeal, we condone the delay of 952 days in filing the appeal and admit the appeal for hearing.
At the time of hearing, ld. Counsel for the assessee stated that the ld CIT(A) has dismissed the appeal without giving adequate opportunity of hearing to the assessee. He prayed before the Bench that the impugned order be set aside and remitted back to the file of ld. CIT(Appeals) for deciding it afresh.
On the other hand, ld Sr DR supported the orders of the lower authorities.
We have heard the rival contentions and perused the material available on record. A perusal of the impugned order clearly shows that as there was no response to the notices to substantiate the claim with documentary evidences and submissions, ld CIT(A) confirmed the addition made by the AO. Before us, ld AR undertakes that the assessee will cooperate the proceedings, if the matter is restored back to the file of the Assessing Officer. Considering the facts and circumstances of the case, we are inclined to set aside the order passed by the ld. CIT(Appeals) in order to meet the principle of natural justice, and remit the matter back to the file of the Assessing officer with a direction to provide one more opportunity of being heard to the assessee. At the same breath, we also hereby caution the assessee to promptly co-operate with the proceedings before the AO,
P a g e 4 | 5 failing which the AO shall be at liberty to pass appropriate order in accordance with law and merits based on the materials available on the record. Thus, the grounds raised by the assessee are allowed for statistical purposes
In the result, appeal of the assessee stands allowed for statistical purposes.
Order dictated and pronounced in the open court on 2/7/2025.