PRABHA VINIMAY (P) LTD.,KOLKATA vs. I.T.O.,WARD-10(2), KOLKATA

At the outset itself, the Ld. Counsel for the assessee Shri Subash Agarwal , Advocate brought to our notice that the Ld. CIT(A) has dismissed the appeal of the assessee on the ground that the delay cause in filing the appeal of 799 days cannot be condoned since there is no reasonable cause to do so. The Ld. Counsel brought to our notice that the assessee company’s director’s brother was suffering from acute kidney ailment and, therefore, they were taking care of his health as well as there was a survey action taken by the department against the assessee company which triggered the department taking action against the assessee for which the assessee’s directors were totally engaged and, therefore, did not come to know about the impugned action of the AO, which resulted in delay of 799 days in filing the appeal and, therefore, the Ld. Counsel for the assessee prays for condonation of delay and has filed an affidavit as well as medical certificate to support the averments made in the affidavit. Ld. DR opposes the prayer of the Ld. Counsel for the assessee to remand back the issue before the Ld. CIT(A).

Having heard both the parties and perused the records, it is found that due to the reasons stated in para 2 supra, the assessee company’s directors could not initiate filing of appeal which was due to the reason stated above, which I find to be supported by medical certificate and sworn affidavit. After perusal of the affidavit as well as the medical Prabha Vinimay Pvt. Ltd. AY- 2014-15 certificate supporting the same, I am of the opinion that since there is reasonable cause, I condone the delay and while doing so, it is noted that the Hon’ble Supreme Court in the case of Collector of Land Acquisition vs Mst Katiji & Others 167 ITR 471 (SC) has explained the principle that need to be kept in mind while considering the application for condonation of delay. The Hon’ble Apex Court has emphasized that substantial justice should prevail over technical consideration. The Hon’ble Apex Court has also observed that a litigant does not stand to benefit by lodging the appeal late. The Hon’ble Apex court has also observed that every day’s delay must be explained does not mean that a pedantic approach should be taken. The doctrine must be applied in a rational, common sense and pragmatic manner. In the case of Vedabai Alias Vaijayantabai Baburao Patil Vs. Shantaram Baburao Patil & Ors. 253 ITR 798(SC), the Hon’ble Supreme Court while considering the issue of condonation of delay observed that substantial justice is of prime importance. Hence, I condone the delay of 799 days. Since the Ld. CIT(A) has not decided the appeal on merits I set aside the order of Ld. CIT(A) and condone the delay in filing the appeal before the Ld. CIT(A) and direct him to decide the appeal on merits after hearing the assessee in accordance to law.

In the result, the appeal of assessee is allowed for statistical purposes. Order is pronounced in the open court on 20th December, 2019.