KANAKA LANDMARK HOLIDAYS PRIVATE LIMITED,MUMBAI vs. ITO WARD 6(3)(4), MUMBAI

However, with regards to balance 704 days we wish to state that assessee was neither knowing the fact that rectification order has been passed by the Id. Assessing Officer nor the appellant was intimated by the auditors appointed by the assessee company regarding such order. When the assessee got the knowledge of the same the assessee was advised by his auditor that issue would get resolved by filing grievances. Therefore, assessee has duly filed grievance several times as can be seen from the portal same is tabulated below: Sr. No. Grievance Ack A.Y. Date Logged No. 1 14159835 2018-19 12-Sep-23 2 14199961 2018-19 13-Sep-23 M/s. Kanaka Landmark Holidays Private Limited; A. Y.2018-19 3 15779573 2018-19 01-Jan-24 4 16245683 2018-19 22-Feb-24 6. after getting consulted by another Chartered Accountant, assessee came to know that the issue would get resolved only through filing of appeal and not simply by grievance application. He immediately proceeded to file appeal against the Rectification order issued u/s. 154 of the Act vide Form 35 which was filed on 03-02-2024. Consequently, on enablement of Communication window the appellant has duly submitted affidavit in respect of delay in filing of appeal but id. Commissioner of Income Tax (Appeal) (CIT- A) has passed order u/s. 250 of the Act dt. 26-04- 2024 and has declined condonation on the basis that the assessee has no sufficient or good reason for condoning inordinate delay of more than 704 days in filing appeal.

In this regards, we wish to submit that delay did not occurred deliberately, or on account of culpable negligence, or on account of malafides. Without considering relevant facts and circumstances of this case and that the assessee was trying to get relief under the other alternative. Further, 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.

In support we wish to place reliance on the decision in case of Smt. Rupa Maheshbhai Gandhi vs. ITO, Ward-3(2)(10) Ahmedabad (ITA No.2224/Ahd/2018) "7. In the light of the above, if I consider explanation of the assessee before the Id. CIT(A), then it would reveal that the assessee was not aware about the assessment order or about the proceedings at the level of the assessment officer. Immediately, when she came into the knowledge about the order, she e-filed the appeal, and in the process delay of 66 days was occurred. To my mind, looking to the quantum of delay of 66 days, and also of the fact that on similar set of facts, in the case of relative of the assessee viz. Kuntalal Mahesh Gandhi for the Α.Υ. 2012-13 to 2014-15, the delay of 870 days has been condoned by the Id.CIT(A), substantial justice demands a practical approach on the part of the Id. CIT(A) in condoning the delay. It is pertinent to take note that by making delay in filing appeal before the Id. CIT(A), the assessee would not achieve anything. Thus, such delay cannot be adopted as a strategy. I condone the impugned delay, and set aside order of the Id. CIT(A). I remit all other issues to the file of M/s. Kanaka Landmark Holidays Private Limited; A. Y.2018-19 the Id. CIT(A) for adjudication on merit. Needless to say, the assessee will cooperate with the CIT(A) in the appellate proceedings, and will not resort to unnecessary delay tactics. As a result, appeal of the assessee is allowed"

Hon'ble Delhi High Court in case of HL Malhotra & Company Pvt. Ltd. Vs DCIT (ITA No. 211/2020 & CM Appeals 32045- 32047/2020 dated 22nd December, 2020) wherein delay of 498 days in filing was condoned by the Hon'ble Delhi High Court and it was held that in absence of anything male fide or deliberate delay as a dilatory tactic, the Court should normally condone the delay as the intent is always to promote substantial justice 10. In view of the above facts and circumstances, the delay in filing appeal before Hon'ble CIT (A) was due to bonafide reasons and reasonable cause and in no manner whatsoever to frustrate the proceedings with any malafide intent”.

Besides above, the appellant has also taken ground that the order passed by the CPC u/s. 154 of the Act is bad in law and in violation of principles of natural injustice as the rental income was taxed twice- under the head ‘income from business and profession’ and ‘income from house property’ and made a prayer that the Hon’ble ITAT may decide this issue on merit.

We have considered the facts of the case and the submissions made by the appellant and we are of the view that since the Ld. CIT (A) has not decided the case on merit and rejected the appeal on the ground of delay in filing appeal, it would be in the interest of justice if the matter is sent back to the file of the Ld. CIT(A) to decide, on merit, the grounds of appeal filed by the appellant against the order u/s.154 passed by the CPC dated 14/02/2020 by condoning the delay considering the submissions made by the appellant. The matter is, thus, remanded back to the file of M/s. Kanaka Landmark Holidays Private Limited; A. Y.2018-19 the Ld. CIT (A) to decide the issue on merit by providing reasonable opportunity of being heard to the appellant. The appellant is also directed to explain its case before the Ld. CIT (A). 10. In the result, the appeal is allowed for statistical purpose. Order pronounced in the open court on 28.08.2024.