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Income Tax Appellate Tribunal, “B” Bench, Mumbai
Before: Shri Shamim Yahya (AM) & Shri Ramlal Negi (JM)
O R D E R Per Bench : These are appeals by the assessee against respective orders of learned CIT(A) for concerned assessment years.
At the outset, it is noted that there is delay of 698 days in quantum appeals for A.Y. 2004-05 and 2005-06. Further, there is delay of 317 days in filing appeals for A.Y. 2006-07 and 2010-11 against the order of learned CIT(A) relating to levy of penalty u/s. 271(1)(c) of the I.T. Act. As regards issue of condonation of delay, the assessee has filed affidavit and submissions.
These submissions are to the effect that the assessee was undergoing great financial stress. It was subject to proceedings before NCLT, proceedings before Metropolitan Magistrate on complaint filed by Provident Fund Inspector also before the Magistrate upon complaint filed by Registrar of companies.
Further proceedings were there before Hon'ble Bombay High Court relating to BIFR proceedings. In these circumstances referring to these documents, learned counsel of the assessee has submitted that since the assessee was undergoing great financial stress and was involved in various other court matters, the delay in filing the appeals occurred. In this regard, learned counsel of the assessee further referred to this Tribunal decision in recall order of earlier ex-parte order passed in this case. While recalling the order, the ITAT has found substantial cogency in assessee’s submission about financial stress and consequent non-appearance by the assessee’s counsel on the date of hearing. Furthermore the assessee has also produced affidavit from the concerned consultant/chartered accountant. Consultant has stated that there was some issue of payment of fees by the assessee and hence consultant had failed to file the appeal in time despite receiving papers in time. In view of the aforesaid, learned counsel placed reliance upon several case laws for the proposition that in substantiate interest of justice, delay should be condoned.
Per contrary, learned DR strongly opposed condonation of delay. He submitted that there is no evidence on record that the assessee was not financially able to engage consultant to file appeal and/or appear before the ITAT. He further submitted that the affidavit by the chartered accountant is a self serving document. He submitted that it is not every default of consultant which should be condoned. In this regard, learned DR placed reliance upon Hon'ble Apex Court decision and decision from Hon'ble Madras High Court.
Upon careful consideration, in our considered opinion facts and circumstances duly show that the assessee was undergoing financial stress and several litigation initiated by the Provident Fund Commissioner, Registrar of companies and other issues arising out of BIFR proceedings and NCLT proceedings were going on. These in our considered opinion have considerable cogency. In our considered opinion financial stress indicated and involvement of several litigations construed reasonable cause for delay in this case. Furthermore, affidavit from the consultant/chartered accountant also supports the case of the assessee. The same cannot be brushed aside. Case laws quoted by learned DR, in view of overwhelming evidence referred above in support of the reasonable cause for delay, do not warrant a denial of condonation of delay. Hence, in the substantial interest of justice, we condone the delay in filing the appeals in this case.
As regards merit of the case at the threshold it is noted that all the orders of learned CIT(A) are ex-parte orders. The assessee remained un- presented before learned CIT(A). Learned counsel of the assessee stated that this was all due to financial stress and other proceedings as mentioned above. Learned counsel submitted that the assessee has various submissions to make on merits in the matter before learned CIT(A). Hence, learned counsel prayed that since these are ex-parte order by learned CIT(A), they may be remitted to the file of learned CIT(A). Learned counsel undertook that now the assessee shall be represented before the authority to canvas appeal. Upon careful consideration and hearing both the counsel in our considered opinion interest of justice demands that these appeals may be remitted to learned CIT(A). Hence, these appeals are remitted to the file of learned CIT(A). Learned CIT(A) is directed to pass a speaking order on merits of the case after giving adequate opportunity of being heard. The assessee is also directed to duly cooperate before learned CIT(A).
We make it clear that we have not adjudicated the issues on merit involved in these cases in any manner whatsoever.
In the result, these appeals are allowed for statistical purposes. Order has been pronounced in the Court on 19.3.2019.