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Facts
The appeal arises from an order dated 14.06.2023 passed by NFAC, Delhi for AY 2015-16. The assessee, M/s. Maverick Properties Pvt. Ltd., filed the appeal with a delay of 320 days. The delay was attributed to the resignation of the auditor's employee who was handling the email communications, leading to a lack of awareness of the order.
Held
The Tribunal condoned the delay of 320 days in filing the appeal, finding sufficient and reasonable cause for the delay, citing Supreme Court judgments that advocate for a liberal approach to condone delays to ensure substantial justice. The Tribunal also noted that no hearing notice was served to the assessee and directed the CIT(A) to provide the remand report to the assessee for further proceedings.
Key Issues
Whether the delay in filing the appeal can be condoned due to the negligence of the auditor's employee and lack of notice of hearing? Whether the grounds raised by the assessee are to be allowed for statistical purposes?
Sections Cited
250 of the Income Tax Act, 1961, Section 51 of the Limitation Act of 1963
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Income Tax Appellate Tribunal, ‘B’ BENCH : BANGALORE
Before: SMT. BEENA PILLAI & SHRI LAXMI PRASAD SAHU
ORDER PER BEENA PILLAI, JUDICIAL MEMBER Present appeal arises out of order dated 14.06.2023 passed by NFAC, Delhi for A.Y. 2015-16.
None appeared before this Tribunal even after notice being served. However it is noted that on 06.08.2024, representative one Ms. Anchal, CA had appeared however as on the date of which the appeal was heard, none appeared on behalf of assessee. As the issue raised by the assessee is small, we do not find it necessary to further adjourn the appeal. The vakalat of the representative of the assessee is on record dated 08/07/2024. The assessee has also filed an affidavit dated 28/06/2024 seeking condonation of delay in filing the present appeal before this Tribunal. In the affidavit, it is submitted that there was a delay of 320 days in filing the present appeal before this Tribunal. The affidavit of the assessee is scanned and reproduced herewith as under:
2.1. As per the affidavit, the email ID mentioned in Form 35 was of the employee of assessee’s auditor who did not communicate the notices issued by the first appellate authority and also resigned in the month of February 2024. It is submitted that later on, upon appointing another person, the failure of non- appearance before the Ld.CIT(A) was brought to the notice of the assessee. In our view, the delay cannot be attributed to the assessee as assessee immediately upon becoming aware of the lapse, took necessary steps to file the present appeal before this Tribunal. The Ld.DR did not have any contrary argument regarding the delay.
2.2. From the submissions of assessee reproduced in the impugned order, there does not arise any malafide intention on behalf of assessee for not filing the present appeal before this Tribunal in the period of limitation.
2.3. In our view, the assessee has made out reasonable cause for the delay caused in filing the appeal before this Tribunal. Nothing to establish any contrary intention was brought on record by the revenue before this Tribunal. In our opinion there is sufficient cause and reasonable cause to condone the delay of 320 days as observed by Hon’ble Supreme Court in case of Collector Land Acquisition Vs. Mst. Katiji & Ors., reported in (1987) 167 ITR 471 in support of his contentions.
2.4. We place reliance on following observations by Hon’ble Supreme Court in case of Collector Land Acquisition Vs. Mst. Katiji & Ors., reported in (1987) 167 ITR 471 wherein, Hon’ble Court observed as under:- “The Legislature has conferred the power to condone delay by enacting section 51 of the Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on de merits". The expression “sufficient cause” employed by the Legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose of the existence of the institution of courts. It is common knowledge that this court has been making a justifiably liberal approach in matters instituted in this court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that :
1. 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 out 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.
......................................................1.Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.”
2.5. Considering the submissions by both sides and respectfully following the observation by Hon’ble Supreme Court, we find it fit to condone the delay caused in filing the present appeals as it is not attributable to the assessee. In any event, though the procedural law pertaining to the limitation has been drafted to construe it strictly, the fact remains that, considering such technicalities will not advance the cause of justice. Accordingly, we condone the delay in filing the present appeals before this Tribunal.
At the outset, it is noted that, no notice of hearing was received by the assessee, though various notices were generated and alleged to be issued by the Ld.CIT(A)/NFAC as per the impugned order. It is submitted that, about 9 notices are said to be issued which is during the covid period and subsequently 4 notices are said to be issued to the assessee. It is further noted that the Ld.CIT(A) called for remand report from the assessing officer does not appear to be served upon the assessee as there is no mention regarding the same. We note that based on the remand report, the Ld.CIT(A) decided the issues without carrying out any verification.
3.1. The Ld.DR objected for the remand of the appeal however we do not find any basis for such objections.
It is noted that the assessee had requested for the copy of the remand report which appears to be not served upon the assessee and the Ld.DR also do not have any documents to prove the service of the remand report.
4.1. It is directed that the Ld.CIT(A) shall provide the copy of the remand report to the assessee and the assessee shall file all necessary documents in support of its claim and rejoinder to the remand report. The Ld.CIT(A) shall consider the issues on merits in accordance with law. Needless to say that proper opportunity of being heard must be granted to assessee. Accordingly, the grounds raised by the assessee stands partly allowed for statistical purposes. In the result, the appeal filed by the assessee stands partly allowed for statistical purposes. Order pronounced in the open court on 14th August, 2024.