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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF JULY, 2021 PRESENT THE HON’BLE MR. JUSTICE ALOK ARADHE AND THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR ITA NO.511 OF 2017 BETWEEN: MRS. PREMALATHA PAGARIA, 768, 17TH "A" MAIN, 5TH BLOCK, RAJAJINAGAR, BENGALURU-560 010, PAN: AEOPP218608. ... APPELLANT (BY SRI SHANKAR SR.COUNSEL, ADVOCATE FOR SRI ANNAMALAI S, ADVOCATE) AND: INCOME TAX OFFICER, WARD-9 (2), PRESENTLY WARD-2(2)(2), BMTC BUILDING, 80 FEET ROAD, 6TH BLOCK, KORAMANGALA, BENGALURU-560 095. ... RESPONDENT (BY SRI K.V.ARAVIND, ADVOCATE)
2 THIS ITA IS FILED UNDER SECTION 260-A OF INCOME TAX ACT 1961, ARISING OUT OF ORDER DATED:23/02/2017 PASSED IN ITA NO.1800/BANG/2016, FOR THE ASSESSMENT YEAR 2009-2010, PRAYING TO: A) TO FORMULATE THE SUBSTANTIAL QUESTION OF LAW AS STATED ABOVE AND ANSWER THE SAME IN FAVOUR OF THE APPELLANT. B) TO ALLOW THE APPEAL AND SET ASIDE THE FINDINGS TO THE EXTENT AGAINST THE APPELLANT IN THE ORDER PASSED BY THE INCOME TAX APPELLATE TRIBUNAL, BENGALURU 'SMC-A' BENCH, BENGALURU IN ITA NO. 1800/BANG/2016 DATED 23/02/2017 FOR THE ASSESSMENT YEARS 2009-2010 RESPECTIVELY VIDE ANNEXURE-A AND ETC., THIS ITA COMING ON FOR HEARING, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING: JUDGMENT Mr. A. Shankar, learned senior counsel for the assessee. Mr. K.V. Aravind, learned counsel for the revenue. This appeal under Section 260A of the Income Tax Act, 1961 (hereinafter referred to as the Act for short) has been filed by the assessee against the order dated 23.02.2017 passed by the Income Tax Appellate Tribunal by which the appeal filed by the assessee has been dismissed. The subject matter of the appeal
3 pertains to the Assessment year 2009-10. The appeal was admitted by a bench of this Court vide order dated 05.12.2017 on the following substantial questions of law: 22. Whether the Tribunal was justified in law in not condoning the delay of 350 days in filling appeal before the Tribunal even though there was sufficient and bonafide cause for such delay has been explained by the appellant and consequently passed a perverse order on the facts and circumstances of the case? 23. Whether the Tribunal was justified in law in dismissing the appeal without adjudicating the specific grounds raised by the appellant on merits of the matter on the facts and circumstances of the case? 24. Whether the Tribunal was justified in law in not setting aside the intimation u/s 143(1) of the Act wherein the income was computed at Rs. 9,14,040/- as against the returned income at Rs.4,24,480/- on the facts and circumstances of the case. 25. Whether the Tribunal was justified in law in not condoning the delay in filing the appeal
4 before the learned Commissioner of Income-tax (Appeals) on the facts and circumstances of the case. 26. Whether the Tribunal was justified in law in not appreciating that the Assessing officer ought to have treated the return as defective and should have called upon the Assessee to rectify the return of income filed by her by giving sufficient period of time on the facts and circumstances of the case. 2. Facts leading to filing of this appeal briefly stated are that the appellant who is an individual filed the return for the assessment year 2009-10 returning total income of Rs.4,24,480/-. The return of income was processed and an intimation under Section 143(1) of the Act dated 24.06.2010 was issued by assessing the income of the assessee at Rs.9,14,040/- against the returned income of Rs.4,24,480/-. The Assessing Officer assessed the income of the assessee under Section 143(1) of the Act and demanded Rs.1,44,170/-. 3. The assessee thereupon filed the request for
5 rectification under Section 154 of the Act and revise the demand raised by the Assessing Officer. The aforesaid request for rectification was rejected by the Assistant Commissioner of Income-Tax, CPC, Bengaluru on 07.02.2011. 4. The assessee thereafter filed another rectification application on 11.04.2011, which was rejected by the Assessing Officer on 16.09.2011. Thereafter the assessee filed an appeal against the order of rejection of application under Section 154 of the Act on 29.11.2012 along with a application for condonation of delay. The Commissioner of Income Tax (Appeals) by order dated 3.09.2015 rejected the application for condoning the delay in filing the appeal. The assessee thereupon filed an appeal before the Appellate Tribunal. The Appellate Tribunal, by order dated 23.02.2017 has also dismissed the appeal before it which was preferred by the assesses for not showing sufficient cause for the delay. In view of the same, this appeal has been filed.
6 5. Learned Senior Counsel for the appellant submitted that the finding recorded by the Tribunal that there is no sufficient cause for condoning the delay of 310 days in filing the appeal is adverse and the Tribunal ought to have appreciated the explanation given by the appellant would constitute "sufficient cause" for condoning the delay in order to advance the cause of justice. 6. On the other hand, learned counsel for the revenue, supported the order passed by the Tribunal and submitted that in the facts and circumstances of the case, the assessee failed to make out any sufficient cause to condone the delay of 310 days in filing the appeal. 7. We have considered the submissions made by the learned counsel for the parties and has perused the record.
7 8. The well settled legal principles that the expression 'sufficient cause' should receive liberal consideration so as to advance the cause of justice may be taken note of for the purpose of reference: "The words “sufficient cause”, as appearing in Section 5 of Limitation Act, should receive a liberal construction when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the applicant/appellant, in order to advance substantial justice. The words “sufficient cause for not making the application within the period of limitation” should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case. The decisive factor in condonation of delay is not the length of delay but sufficiency of a satisfactory explanation. The degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. [See:' Perumon Bhagavathy Devswom v. Bhargavi Amma (Dead) by LRS 2008 (8) SCC 321, 'Katari Suryanarayana vs. Kpoisetti Subba Rao and Ors AIR 2009 SC 2907,
8 'Assistant Commissioner (CT) LTU, Kakinada & Ors. v. M/s Glaxo Smith Kline Consumer Health Care Limited', 2020[36] G.S.T.L. 305]
In the backdrop of the well settled legal principles, the facts of the case on hand may be examined. 10. The reasons assigned by the assessee for the delay in filing the appeal is that the impugned order dated passed by the Commissioner of Income Tax (Appeals) was delivered to the assessee some time in the September 2015 and immediately after receipt of the said order, the assessee had supplied the order passed by the Commissioner of Income Tax (Appeals) to the office of the Auditor so far as to take action for filing of an appeal. It is the case of the assessee that the aforesaid order was not brought to the notice of the Chartered Accountant namely RAjendra Karnavat by his staff, and the same remained in his office files without any action. The appellant thereupon made an enquiry
9 and learnt about the fact on 7.10.2016 that the appeal has not been filed and the appellant took action to contact another Chartered Accountant and filed the appeal thereon.
The appellant in the facts and circumstances of the case should not suffer on account of inadvertence on the part of her Chartered Accountant.
Thus, in the facts and circumstances of the case, the assessee has made out sufficient cause to condone the delay of 310 days in filing the appeal before the Tribunal.
The aforementioned substantial questions of law framed by this Court is answered in favour of the assessee.
In the result, order dated 23.02.2017 passed by the Tribunal is hereby quashed and delay in filing the appeal is condoned.
The matter is remitted to the Tribunal for decision afresh in accordance with law.
In the result, the appeal is disposed of. Sd/- JUDGE Sd/- JUDGE HR