LATE VISHWAS GAJMAL SONAWANE,DHULE vs. ITO, WARD-1, DHULE, DHULE

When the case called for, none appeared on behalf of the assessee despite due service of notice of hearing. I therefore proceed to adjudicate the appeal with the assistance of ld. Departmental Representative.

Brief facts of the case are that the assessee is an individual and has not filed the regular return u/s.139 of the Act and based on the information that assesee sold immovable property for sale consideration of Rs.45.10 lakh,

Dissatisfied assessee preferred appeal before ld.CIT(A) but with a delay of 971 days and ld.CIT(A) dismissed the appeal of the assessee in limine by observing as under :

In view of the above legal position and considering the facts of the case and submissions of the appellant, it appears that there is no reasonableness in appellant’s in-ordinate delay of 971 days in filing of the appeal. The adjudicating authority is not satisfied that the delay in filing of appeal is bona-fide and the appellant was not prevented by the good and sufficient reason which prevented the appellant in the presenting the appeal within the stipulated time period. Hence, in my considered opinion, appellant was not prevented by the good and sufficient cause in delayed filing of appeal and therefore delay in filing appeal is not condoned and without condoning the delay the appeal cannot be admitted. Once the delay in filing condonation is rejected, deciding the appeal on merits doesn’t arise.

In view of the above discussion, appeal is rendered as inadmissible, hence stand DISMISSED IN LIMINE.

Now the assessee is in appeal before this Tribunal assailing the impugned order passed by ld.CIT(A).

At the time of hearing before me, I note that as per Form No.36 appeal has been filed by the legal heir of the deceased assessee. Further, the statement of facts before this Tribunal are filed by his Legal heir Mr. Milind Vishwas Sonawane through Digital Signature. It is stated that the assessee aged 82 years was an Agriculturist. At the relevant time, he was bedridden and eventually passed away on 19.10.2022. Eventhough the Rectification u/s.154 was posted on income tax portal, the assessee being an octogenarian and bedridden is not supposed to watch the income tax portal. The order was not served on the assessee physically. The legal heir came to know only when he received the notice of hearing from ld.CIT(A) in respect of penalty u/s.271(1)(c) for A.Y. 2012-13 requiring the assessee to file the submission of appeal upto 15.10.2024. Considering the above facts, the ld.CIT(A) ought to have condoned the appeal and relied on various decisions condoning the delay including that of Hon’ble Juri ictional High Court in the case of Vijay Vishin Meghani Vs. DCIT (2017) 398 ITR 250. On merits of the case, it is further contended that the assessee has a strong prima- facie case as the said land which was sold by the assessee is not a capital asset as per Municipality and Cantonment Board Gazette No.SO 91 dated 08.02.1991. 7. On the other hand, ld. DR supported the order of ld.CIT(A).

I have heard the ld. DR and perused the record placed before us. In the instant case, the rectification order was passed on 18.01.2022 and the assessee expired on 19.10.2022. In the Form No.35, assessee furnished the reasons for delay. Considering the same in the peculiar facts of the case, the delay ought to have been condoned by ld.CIT(A) in light of judgment of the Hon’ble Bombay High Court in the case of Vijay Vishin Meghani Vs. DCIT & Anr (2017) 398 ITR 250 (Bom) holding that none should be deprived of an adjudication on merits unless it is found that the litigant deliberately delayed the filing of appeal. In that case, delay of 2984 days crept in due to improper legal advice. Relying on Concord of India Ins. Co. Limited VS Nirmala Devi (1979) 118 ITR 507 (SC), the Hon’ble juri ictional High Court condoned the delay.

The Hon’ble Supreme Court in the case of Collector of Land Acquisition vs. Mst. Katiji, 167 ITR 471 (SC) held that 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. The Hon’ble Juri ictional High Court in the case of Vijay Vishin Meghani vs. DCIT, 389 ITR 250 (Bom.) held that in the matter of condonation of delay an overall view in the larger interest of justice has to be taken.

In light of above discussion, I hereby condone the delay of 971 in filing of the appeal before ld.CIT(A). Since ld.CIT(A) had no occasion to decide the issues on merit, I am of the considered opinion that the issues on merit deserves to be 5 Late Vishwas Gajmal Sonawane remitted back to the ld.CIT(A)/NFAC for denovo adjudication in light of statement of facts filed by the legal heir of the assessee. In view thereof, without dwelling into merits of the issue, the issues on merits are being remitted to the file of ld.CIT(A)/NFAC. Needless to mention that in the set aside proceedings, legal heir should remain vigilant and not to take adjournment unless otherwise required for reasonable cause, failing which the ld.CIT(A)/NFAC shall be free to proceed in accordance with law. Findings of the CIT(A)/NFAC is set aside and Grounds of appeal raised by the assessee are allowed for statistical purposes.

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

The Pr. CIT concerned. विभ गीय प्रतितनधि, आयकर अपीलीय अधिकरण, “SMC” बेंच, 4. पुणे / DR, ITAT, “SMC” Bench, Pune. ग र्ड फ़ इल / Guard File. 5. आिेश नुस र / BY ORDER,