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Facts
The Assessee filed an appeal with a delay of 209 days, claiming their business had been closed for 5-7 years and directors were unaware of the order until receiving a demand notice. The Revenue opposed the condonation of delay. The Tribunal noted the Assessee's business closure and lack of employees, finding the claim for condonation to be somewhat genuine.
Held
The Tribunal condoned the 209 days delay in filing the appeal subject to a deposit of Rs. 10,000/-. However, the case was remanded to the Commissioner for a fresh decision, allowing the Assessee a reasonable opportunity to substantiate the delay in condonation. If successful, the Commissioner would decide the appeal on merits.
Key Issues
Whether the delay in filing the appeal should be condoned, and if so, whether the appeal should be decided on merits or remanded for fresh consideration.
Sections Cited
250, 147, 143(3)
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Income Tax Appellate Tribunal, MUMBAI BENCH “A”, MUMBAI
Before: SHRI NARENDER KUMAR CHOUDHRY & SHRI OMKARESHWAR CHIDARA
Per : Narender Kumar Choudhry, Judicial Member:
This appeal has been preferred by the Assessee against the order dated 23.08.2023, impugned herein, passed by the National Faceless Appeal Center (NFAC)/ Ld. Commissioner of Income Tax (Appeals) (in short Ld. Commissioner) under section 250 of the Income Tax Act, 1961 (in short ‘the Act’) for the A.Y. 2009-10.
At the outset, we observe that there is a delay of 209 days in filing the instant appeal, on which the Assessee vide application for condonation of delay has submitted that business activities of the company has been completely closed down for the last 5-7 years and all the employees of the company have also left the job and the Directors of the company do not know much about the Income Tax. They only came to know about the impugned order when they received the demand notice and therefore your honour is requested to condone the delay which is unintentional and beyond the control of the Assessee.
The Ld. D.R. on the contrary refuted the claim of the Assessee and submitted that reason for delay as demonstrated by the Assessee is not based on any reason and totally unconvincing.
We have given thoughtful considerations to the peculiar facts and circumstances of the case. Though in the application submitted for condonation of delay, the Assessee has not substantiated its reason for delay, however, as we can understand that the Assessee’s claim for the condonation of delay is that its business activity has already been closed down for the last 5-7 years and the Assessee does not have any employee and the Directors of the Assessee company only came to know about the impugned order after receiving the demand notice and thereafter the Assessee company has appointed one consultant for filing the appeal against the impugned order before the Tribunal. Hence, considering the aforesaid factual aspect as the Assessee’s business is undisputedly closed down since long time therefore the claim of the Assessee seems to be slight genuine and consequently we are inclined to condone the delay of 209 days in filing the instant appeal, however, subject to deposit of Rs.10,000/- in the Revenue Department within 30 days from the date of receipt of this order.
Now coming to the merits of the case, we observe that before the Ld. Commissioner the Assessee challenged the assessment order dated 30.12.2016 u/s 147 r.w.s. 143(3) of the Act by filing first appeal, however, with a delay of 179 days. Before the Ld. Commissioner, the Assessee failed to demonstrate the valid reason for the delay except stating that the delay was under bonafide reasons
and compelling circumstances, beyond control of the Assessee, however, the Assessee has not substantiated any reason. We further observe that the Ld. Commissioner during the appellate proceedings, though issued various notices to the Assessee, however, the Assessee till passing of the impugned order dated 23.8.2023 neither made any compliance nor submitted any written submission and therefore by considering the non-compliance as well as for not substantiating the delay, the Ld. Commissioner dismissed the appeal of the Assessee on technical ground qua delay of condonation and proceeded not to decide the appeal on merits.
We have given thoughtful considerations to the peculiar facts and circumstances of the case. The Assessee has submitted the same contention as submitted before the Ld. Commissioner in respect of the 209 days delay in filing the instant appeal before us. As admittedly the Assessee’s business has already been closed down and does not have any employees and therefore the delay occurred before the Ld. Commissioner in filing the first appeal also appears to be justifiable. Even otherwise we observe that appeal before the Ld. Commissioner was filed on 2nd August 2017 whereas the same was taken into consideration only after six years i.e. on 25.04.2023. Considering the peculiar facts and circumstances in totality, we deem it appropriate to give one more opportunity to the Assessee to substantiate its claim qua condonation of delay before the Ld. Commissioner, hence the case is remanded to the file of the Ld. Commissioner for decision afresh by giving reasonable opportunity to the Assessee to substantiate its claim qua condonation of delay and in case the assessee would be successful in establishing the reason for condonation of delay then the Ld. Commissioner will decide the appeal on merits.
In the result, the appeal of the Assessee is allowed for statistical purposes.
Order pronounced in the open court on 31.07.2024.