F. RACEK & CO. P.LTD,MUMBAI vs. DCIT 4(2)(2), MUMBAI

Brief facts are, the assessee a company is engaged in the business of trading in lanterns, mantles, stoves, etc. For the assessment year under dispute, the assessee filed its return of income on 30th September 2012, declaring total income of ` 4,35,68,920. The return of income filed by the assessee was selected for scrutiny and 2 F. Racek & CO. Pvt. Ltd. the Assessing Officer ultimately completed the assessment under section 143(3) of the Act by determining the total income at ` 4,81,18,670. The enhancement of income by the Assessing Officer was on account of addition made towards unexplained cash credit and short term capital gain. Being aggrieved of the assessment order so passed, the assessee preferred appeal before the learned Commissioner (Appeals).

As it appears from the facts on record, the appeal filed by the assessee before the learned Commissioner (Appeals) was delayed by 178 days. The assessee filed an application seeking condonation of delay, inter–alia, on the ground that the senior partner of assessee’s tax consultant who was taking care of all tax matters having passed away, there was communication gap resulting in delay in filing the appeal. The learned Commissioner (Appeals), however, did not find the explanation of assessee satisfactory. He opined that the death of senior partner of tax consultant firm did not affect the tax proceeding in any manner. Accordingly, he refused to condone the delay of 178 days. Consequently, the appeal was dismissed in limine without deciding on merits.

The learned Authorised Representative reiterating the stand taken before the first appellate authority submitted that the delay in filing the appeal before the learned Commissioner (Appeals) was due

Learned Departmental Representative relied upon the observations of the learned Commissioner (Appeals).

Having considered the rival submissions and perused the material on record, we are of the considered opinion that the delay in filing of appeal before the first appellate authority is due to a reasonable cause. Therefore, the learned Commissioner (Appeals) should have condoned the delay and decided assessee’s appeal on merit. In view of the aforesaid, we set aside the impugned order of the learned Commissioner (Appeals) and restore the matter back to his file with a direction to decide the appeal on merits after reasonable opportunity of being heard to the assessee.

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