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Income Tax Appellate Tribunal, “C’’ BENCH: BANGALORE
Before: SHRI WASEEM AHMED & SHRI KESHAV DUBEY
PER KESHAV DUBEY, JUDICIAL MEMBER:
These appeals at the instance of the assessee are directed against the order of ld. Addl/JCIT(A)-2, Pune dated 14.5.2024 vide DIN & Order No.ITBA/APL/S/250/2024-25/1064851386(1) as well as order dated 31.5.2024 vide DIN & Order No.ITBA/APL/S/250/2024-25/1065317902(1) for the assessment years 2018-19 & 2019-20 respectively. Since both the appeals were dismissed by the ld. ADDL/JCIT(A) of the same assessee on the ground of not condoning the delay in filing the appeals as well as relying upon judgement of Hon’ble Supreme Court n the case of Checkmate Services Pvt. Ltd. (2022) 143 taxmann.com 178 (SC). Hence, these appeals were clubbed together, heard together and disposed of by this common order for the sake of convenience.
&1685/Bang/2024 QPAVE Solutions Pvt. Ltd., Bangalore Page 2 of 9 2. At the outset, the ld. A.R. of the assessee submitted that there is a delay of 51 days for the AY 2018-19 and 34 days for the assessment year 2019-20 in filing the appeal before this Tribunal. On perusal of the record, we find that assessee has filed an application for condonation of delay along with an affidavit dated 21.11.2024, sworn before the Notary public stating that the e-mail listed on the e-filing portal belongs to the aged Director, who was the signatory and the e-mails were not periodically checked by the Director at regular intervals. Further, the ld. A.R. of the assessee submitted that assessee has not received any notices by post or courier and due to over-looking of the e-mail by the Managing Director who is of very old age could not file the appeal on time. Thereafter, the assessee immediately sought professional advice and was advised to file the appeal before the Tribunal with a petition for condonation. Finally, the ld. A.R. of the assessee prayed that the petitioner would be put to great hardship and irreparable injury if the delay is not condoned. Reliance is also placed on the decision of the Hon’ble Apex Court in the case of Collector, Land Acquisition Vs. Mst. Katiji & Others (1987) 167 ITR 471 and also in the case of Concorde of India Insurance Company Ltd. Vs. Smt. Nirmala Devi Vs. 118 ITR 507. Further, the assessee relied on another decision of Hon’ble Apex Court in the case of Radha Krishna Rao Vs. Allahabad Bank & Others (2000) 9 SCC 733.
The ld. D.R. on the other hand, have opposed for the condonation of delay stating to be a habitual but could not controvert the submissions made therein.
We have heard the rival submissions and perused the materials available on record. In our opinion, it cannot be said that assessee is very callous in its approach in filing the appeal before us. The affidavit placed before us is reproduced below for ease of reference and record.
&1685/Bang/2024 QPAVE Solutions Pvt. Ltd., Bangalore Page 3 of 9 &1685/Bang/2024 QPAVE Solutions Pvt. Ltd., Bangalore Page 4 of 9 &1685/Bang/2024 QPAVE Solutions Pvt. Ltd., Bangalore Page 5 of 9 &1685/Bang/2024 QPAVE Solutions Pvt. Ltd., Bangalore Page 6 of 9 4.1 At this juncture, it is appropriate to mention the judgement of Apex Court in the case of Collector Land Acquisition v. Mst. Katiji and Ors. (167 ITR 471) laid down six principles. For the purpose of convenience, the principles laid down by the Apex Court are reproduced hereunder: (1) Ordinarily, a litigant does not stand to benefit by lodging an appeal late (2) Refusing to condone delay can result in a meritorious matter being thrown at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties.
(3) 'Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational, commonsense and pragmatic manner.
(4) When substantial justice and technical consideration are pitted against each other, the 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.
&1685/Bang/2024 QPAVE Solutions Pvt. Ltd., Bangalore Page 7 of 9 (5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk.
(6) It must be grasped that the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
4.2 Being so, when substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserve to be preferred for the other side and claimed to have vested right for injustice doing so because of non-deliberate delay. Therefore, in our opinion, these are fit case to condone the delay of 51 days for the AY 2018-19 and 34 days for the AY 2019-20 in filing the appeal before this Tribunal. Accordingly, the delay is condoned and appeals are admitted for adjudication.
Now on going through the order of the ld. ADDL/JCIT(A) for both these assessment years, we find that the assessee has belatedly filed appeals before the ld. ADDL/JCIT(A) by 1283 days for the AY 2018-19 and 386 days for the AY 2019-20 and the ld. ADDL/JCIT(A) has not condoned the delay as per the provisions of section 249(3) of the Act in the absence of sufficient cause for not presenting the appeal within the time allowed. The ld. ADDL/JCIT(A) is of the view that on the issue of delay in filing the appeal before him, no reason was given by the assessee. Further, the assessee was given opportunity to file the reason vide issuing notice u/s 250 of the Act. However, the assessee has not responded with respect to substantial delay of about 1283 days and 386 days respectively for the AYs 2018- 19 & 2019-20 and accordingly, in the absence of sufficient cause, the ld. ADDL/JCIT(A) declined to condone the delay and held that appeal is non-maintainable being out of time. Further, we find that the ld. ADDL/JCIT(A) in the interest of natural justice has adjudicated appeal on merit also and by relying in the case of Checkmate Services Pvt. Ltd. Vs. CIT (2022) 143 Taxamann.com 178 (SC) dated &1685/Bang/2024 QPAVE Solutions Pvt. Ltd., Bangalore Page 8 of 9 22.10.2022 has also dismissed the appeal on merits too. Aggrieved by the aforesaid orders of the ld. ADDL/JCIT(A) in both the years, the assessee has filed the present appeals before this Tribunal. 5.1 It is an undisputed fact that the assessee could not file any application for condonation of delay and also could not explain the “sufficient cause” for inordinate delay. Before us ld. A.R. of the assessee produced summary of PF statement for the financial years 2017-18 & 2018-19 by showing the details of return month, salary disbursement date, payment date and amount and submitted that all these details could not be filed before the ld. ADDL/JCIT(A) and requested to remand back the case to the file of AO for considering the same afresh in accordance with law. Being so, we are of the considered opinion that in the interest of justice and fair play, one more opportunity may be granted to the assessee to substantiate his case and accordingly, we set aside the entire issue in dispute to the file of ld.ADDL/JCIT(A) to decide in accordance with law. The assessee is directed to file petition for condonation of delay before the ld. ADDL/JCIT(A) for both these years and explain sufficient cause for such inordinate delay and thereafter the ld.ADDL/JCIT(A) will take decision as per law and may consider the case on merits. The assessee is also directed to update the e-mail ID, mobile number etc. on the income tax web portal of the active director and cooperate with the proceedings before the ld. ADDL/JCIT(A) for early disposal. It is ordered accordingly.