ANIL TURAKHIA,INDORE vs. ITO-5(1), INDORE, INDORE

Ld. AR for assessee submitted that the assessee has filed applications/affidavits in all these matters for condonation of delay. The applications/affidavits filed by assessee are identical, therefore we re- produce below one of those:

The averments made by assessee in above application, which are self- explanatory and which do not require repetition, were discussed. The Ld. AR for assessee explained the various physical and financial setbacks/ challenges faced and still being faced by assessee due to which the delays have occurred in filing these appeals. Ld. AR, with folded hands on behalf of assessee, made a humble prayer to consider assessee’s situation liberally and judicially and condone delays. Ld. DR for revenue, being fair enough, does not have any objection if the bench condones delay and accordingly left it to the wisdom of bench. We have considered the explanation advanced by assessee and in absence of any contrary fact or material on record, the assessee is found to have a “sufficient cause” for delay in filing present appeals. We find that section 253(5) of the Act empowers the ITAT to admit an appeal after expiry of prescribed time, if there is a “sufficient cause” for not presenting appeal within prescribed time. It is also a settled position by Hon’ble Supreme Court in Collector, Land Acquisition Vs Mst. Katiji and others 1987 AIR 1353, 1987 2 SCC 387 that whenever substantial justice and technical considerations are opposed to each other, the cause of substantial justice must be preferred by adopting a justice-oriented approach. Thus, taking into account the facts of case, the provision of section 253(5) and the decision of Hon’ble Supreme Court, we take a judicious view, condone delay, admit appeal and proceed with hearing.

Ld. AR next submitted that the section 250(6) of the Income-tax Act, 1961 provides “The order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision.”. He submitted that in present case, the Ld. CIT(A) has dismissed assessee’s first appeals although due to non-prosecution by assessee on the dates of hearing but still without complying with the mandate of section 250(6). Therefore, the impugned first appeal-orders passed by Ld. CIT(A) deserves to be set aside. In so far as the reasoning of non-prosecution before CIT(A) is concerned, Ld. AR narrated the very same physical and financial setbacks/challenges faced by assessee as stated by assessee in the applications for condonation of delay. However, Ld. AR acknowledged, that the assessee is having in his possession all required details/documents and is willing and ready to make a proper representation before CIT(A) if an opportunity is given and hence prays that in the interest of justice, these matters ought to be remanded to CIT(A) for adjudication afresh.

Ld. DR for revenue agreed to the submission of Ld. AR but made a request to direct the assessee to represent his case before CIT(A) and do not seek unnecessary adjournments.

In view of above submissions of parties, having regard to the principle of natural justice and also bearing in mind that no prejudice would be caused to revenue if the present matter is restored at the level of CIT(A), we

We also find that the assessee has been suffering from physical and financial challenges. Therefore, we are not imposing any cost upon assessee although there might be some element of lethargy on the part of assessee in making representation before lower authorities. However, we direct the assessee to remain vigilant and ensure participation in the hearings as may be fixed by CIT(A) and do not seek unnecessary adjournments failing which the CIT(A) shall be at liberty to pass appropriate order(s) in accordance with law. Ordered accordingly.

Resultantly, these appeals are allowed for statistical purpose.