BETHALA PETROPACKS PVT LTD., (FORMERLY KNOWN AS DEEPAK EXTRUSIONS PVT LTD.,),BANGALORE vs. ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1(4), BENGLALURU

2.5 AY 2015-16 The applicant is filing this appeal against the assessment order dated 29.12.2017. In the normal circumstances, the appeal should have been filed within 30 days of the receipt of the order. The appellant had received order, well in time. Immediately on receipt of the order and in view of the facts that the assessment was high pitched assessment, the appellant was advised to approach an Advocate for filing writ petition. Therefore, the assessment order was given to the Advocate for filing writ petition. However, the writ petition was not filed and the appellant on follow up was assured that the writ petition will be filed. However, despite the assurance, writ petition could not be filed. The appellant was under an impression that the writ petition was filed. However, recently the appellant got notice for payment of demand for the yar, then the appellant enquired with the Advocate and it turned out that the to 284/Bang/2024 Bethala Petropacks Pvt. Ltd., Bangalore Page 5 of 15 writ petition was prepared but was not filed and the matter was lost sight of. Immediately, on coming to know of this, the appellant consulted the tax experts and then the appellant was advised to file appeals with a petition for condonation of delay. Accordingly, the appellant made arrangements to file this appeal. This delay in filing appeal is due to sufficient cause. It is therefore, prayed that the delay in filing appeal may kindly be condoned and the appeal may be admitted for hearing in the interest of natural justice and equity. The appellant prays accordingly.”

5.2 The ld. CIT(A) observed that the conduct of the assessee is not appreciable as the assessee had not availed several opportunities given to it, neither before ld. AO nor before ld. CIT(A) and hence, he observed as follows:

Date of Notice Scheduled Appellant’s response issued Hearing date 27.12.2023 On or before Nobody appeared on behalf of the 08.01.2023 appellant and no written submission was filed. Letter seeking adjournment was also not filed. 09.01.2024 On or before Nobody appeared on behalf of the 16.01.2024 appellant and no written submission was filed. Letter seeking adjournment was also not filed. 17.01.2024 On or before Nobody appeared on behalf of the 25.01.2024 appellant and no written submission was filed. Letter seeking adjournment was also not filed.

5.3 Accordingly, ld. CIT(A) dismissed all the appeals of the assessee holding that assessee was not interested in prosecuting the appeals and also by not condoning the delay in filing the appeals before ld. CIT(A). Against this assessee once again is in appeal before us. to 284/Bang/2024 Bethala Petropacks Pvt. Ltd., Bangalore Page 6 of 15 5.4 The ld. A.R. for the assessee submitted that assessee has been pursuing alternative remedy before the Hon’ble High Court since the assessment orders have been passed ex-parte except the reopened assessment for the assessment years 2012-13 & 2015-16 passed u/s 143(3) r.w.s. 147 of the Act. As such, there is a gross violation of principles of natural justice and prayed that the delay may be condoned in filing the appeals before ld. CIT(A) since the orders are passed by ld. AO ex-parte and may be remitted back to the file of ld. AO, so as to render substantial justice.

7.1 The above table shows the chronological events for delay in filing the appeals before ld. CIT(A). Thus, the contention of the ld. A.R. is that the delay was due to pursuing alternative remedy by way of writ and writ appeals and review of petition to recall earlier order to 284/Bang/2024 Bethala Petropacks Pvt. Ltd., Bangalore Page 7 of 15 in writ appeals before Hon’ble jurisdictional High Court against the assessment order passed by ld. AO for the assessment years 2012- 13, 2013-14 & 2014-15. For the assessment year 2015-16 dated 29.12.2017, assessee has not opted to file writ against the assessment order on the reason that assessee has been waiting the outcome of writ filed against the assessment order in assessment year 2012-13, 2013-14 & 2014-15 and it was the contention of the ld. A.R. that the assessee has no malafide intention in filing the appeals belatedly before ld. CIT(A). It is to be noted that u/s 253(5) of the Act, the Tribunal may admit the appeals filed beyond the period of limitation where it has established that there exists a sufficient cause on the part of the assessee company for not presenting the appeals within the prescribed time. The explanation therefore, becomes relevant to determine whether the same reflects sufficient and reasonable cause on the part of the assessee in not filing these appeals within the prescribed time. In the instant case, the ld. AO has passed the ex-parte orders for the following assessment years: Sl.No. AY I.T. Act Section 1 2012-13 144 2 2012-13 147* 3 2013-14 144 4 2014-15 144 5 2015-16 143(3)* (not ex- parte)

7.2 However, all the orders of CIT(A) passed for all these assessment years are ex-parte without participation of assessee, wherein he has not condoned the delay in filing these appeals before him. The ld. A.R. further made a contention that similar was the position for the assessment year 2011-12, wherein ld. AO has passed high-pitched assessment, against which assessee has filed writ petition in Appeal No.33123 of 2017 before Hon’ble High Court and the High Court vide order dated 18.11.2021 quashed the assessment to 284/Bang/2024 Bethala Petropacks Pvt. Ltd., Bangalore Page 8 of 15 orders being violative of principles of natural justice and mater was remanded back to the ld. AO for reconsideration afresh in accordance with law. In the light of above, the ld. A.R. pleaded before us that considering these precedents, the Tribunal may also condone the delay in filing the appeals before ld. CIT(A) and remitted the matter to the file of ld. AO since most of the orders passed by ld. AO/CIT(A) are ex-parte. 7.3 It was also submitted before us that the assessee after receiving the high-pitched assessment orders, the assessee had consulted the advocate and, on his advice, the assessee opted to file a writ before the High Court as the assessment orders were passed in violation of principles of natural justice and that was the opinion of the advocate that filing writ is the proper remedy available to the assessee. The assessee went by its legal advisor’s advice and accordingly, filed the writs in these cases, where the writs are dismissed by High Court. Later, the assessee filed writ appeals against the writ orders. These writ appeals were also dismissed by Hon’ble jurisdictional High Court. Once again, the assessee filed review petitions to recall order of writ appeals. Had it assessee got the right relief, then the assessee would not have faced the problem of filing appeals belatedly before ld. CIT(A). Thus, the reason explained by the assessee was that due to wrong advice of the advocates, appeals could not be filed in time as the assessee was pursuing alternative remedy, therefore, there is a reasonable cause in not filing the appeals in time. At this time, it is appropriate to mention the judgement of Hon’ble Supreme Court in the case of Concord of India Insurance Company Ltd. Vs. Smt. Nirmala Devi & Ors. Reported in 118 ITR 507 (SC), wherein it has been held that “the mistake of the counsel may in certain circumstances be taken into account in condoning the delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground”. Accordingly, the Hon’ble Supreme Court has held that to 284/Bang/2024 Bethala Petropacks Pvt. Ltd., Bangalore Page 9 of 15 there is a mistake of the counsel and therefore, the delay in filing the appeal has been condoned. 7.4 It was also noted that Hon’ble Supreme Court in the case of N. Balakrishna Vs. Krishnamurthy reported in AIR 1998 (SC) 3222 given similar finding. 7.5 Further, Cochin Bench of Tribunal in the case of Midas Polymer Compounds Pvt. Ltd. dated 25.6.2018, wherein the Tribunal condoned the delay of 2819 days by observing as follows: “6. We have heard the rival submissions and perused the record. There was a delay of 2819 days in filing the appeal before the Tribunal. The assessee has stated the reasons in the condonation petition accompanied by an affidavit which has been cited in the earlier para. The assessee filed an affidavit explaining the reasons and prayed for condonation of delay. The reason stated by the assessee is due to inadvertent omission on the part of Shri Unnikrishnan Nair N, CA in taking appropriate action to file the appeal. He had a mistaken belief that the appeal for this year was filed by the assessee as there was separate Counsel to take steps to file this appeal before the ITAT. Therefore, we have to consider whether the Counsel’s failure is sufficient cause for condoning the delay. The Madras High Court considered an identical issue in the case of Sreenivas Charitable Trust v. Dy. CIT (280 ITR 357) and held that mixing up of papers with other papers are sufficient cause for not filing the appeal in time. The Madras High Court further observed that the expression "sufficient cause" should be interpreted to advance substantial justice. Therefore, advancement of substantial justice is the prime factor while considering the reasons for condoning the delay.

6.1 On merit the issue is in favour of the assessee. But there is a technical defect in the appeal since the appeal was not filed within the period of limitation. The assessee filed an affidavit saying that the appeal was not filed because of the Counsel’s inability to file the appeal. The Revenue has not filed any counteraffidavit to deny the allegation made by the assessee. While considering a similar issue the 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. to 284/Bang/2024 Bethala Petropacks Pvt. Ltd., Bangalore Page 10 of 15 (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 nondeliberate delay. (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. 6.2 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 for injustice being done because of nondeliberate delay. In the case on our hand, the issue on merit regarding allowability of deduction u/s. 80IB of the Act was covered in favour of the assessee by the binding Judgment of the jurisdictional High Court. Moreover, no counter-affidavit was filed by the Revenue denying the allegation made by the assessee. It is not the case of the Revenue that the appeal was not filed deliberately. Therefore, we have to prefer substantial justice rather than technicality in deciding the issue. As observed by Apex Court, if the application of the assessee for condoning the delay is rejected, it would amount to legalise injustice on technical ground when the Tribunal is capable of removing injustice and to do justice. Therefore, this Tribunal is bound to remove the injustice by condoning the delay on technicalities. If the delay is not condoned, it would amount to legalising an illegal order which would result in unjust enrichment on the part of the State by retaining the tax relatable thereto. Under the scheme of Constitution, the Government cannot retain even a single pie of the individual citizen as tax, when it is not authorised by an authority of law. Therefore, if we refuse to condone the delay, that would amount to legalise an illegal and unconstitutional order passed by the lower authority. Therefore, in our opinion, by preferring the substantial justice, the delay of 2819 days has to be condoned.”

7.6 Even otherwise, there is a reasonable cause in filing the appeal belatedly before ld. CIT(A) as delay was neither willful nor wanton but due to the circumstances beyond the control of the assessee. In this connection, we have gathered from the records that the assessee was advised by the advocates by name DNS Law House, Kumara Park, West Bangalore-20. For the assessment year 2011-12, assessment order was passed u/s 144 of the Act on 29.12.2016, against which assessee filed a writ petition No.33123 of 2017 (T-IT) before Hon’ble High Court and assessee got a favourable order dated 8.11.2021, to 284/Bang/2024 Bethala Petropacks Pvt. Ltd., Bangalore Page 11 of 15 wherein the High Court quashed the assessment order and remitted the issue back to the file of ld. AO for reconsideration afresh in accordance with law within a period of 3 months from the date of receipt of order as in assessment yar 2011-12. The assessee has filed writ/writ appeals/review petitions before High Court, which are rejected by the High Court for these impugned assessment years involved herein before us, which made the assessee to file the appeals before ld. CIT(A), consequent to dismissal of writ/writ appeals/review petitions by Hon’ble High Court. Even if we examine whether the reason stated by the assessee in condonation petitions are sufficient to condone the delay and there exists sufficient cause for not presenting the appeals within the period of limitation under the statute, the assessee must show that it was diligent in taking appropriate steps and the delay was caused notwithstanding with its due diligence. If it appears to be guilty of latches or negligence and does not take appropriate steps to pursue its remedy till about the close of the period prescribed for filing of appeal, it must be prepared to have its remedy barred without expecting condonation. Still, it is for the party concerned to explain the reasons for delay and it is not the function of concerned authorities often to find cause for delay. The Court/authority has to examine whether the sufficient cause has been shown by the party for condoning the delay and whether such cause is reasonable or not. In the present case in hand, the assessee explained the delay in filing the appeals before the ld. CIT(A) was on the reason that the assessee pursued the remedies before the High Court by filing the writ and on dismissal of writ, assessee filed writ appeals before the Hon’ble High Court. Later, it has filed review petitions. Thus, the assessee before us was able to demonstrate that assessee prosecuted for alternative remedy under bonafide belief and the assessee has been failed to get relief as sought by in its writ. This being the position, it constitutes a sufficient cause for filing the appeals belatedly. to 284/Bang/2024 Bethala Petropacks Pvt. Ltd., Bangalore Page 12 of 15 7.7 Further, in the case of People Education & Economic Development Society Vs/ ITO reported in 100 ITD 87 (TM) (Chen), wherein held that “when substantial justice and technical consultation 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 non-deliberate delay”. 7.8 We also note that Hon’ble Supreme Court in the case of Motilal Padampat Sugar Mills Company Ltd. Vs. State of Uttar Pradesh reported in 118 ITR 326 held that “there is no presumption that every person knows the law. It is often said that everyone is presumed to know the law, but that is not a correct statement, there is no such maxim to the law.” It was therefore, not possible to presume that assessee had full knowledge as to the various remedies sought by assessee, wherein assessee failed. The assessee was prosecuting the remedy under bonafide belief. 7.9 This view of ours is supported by judgement of Hon’ble Madras High Court in the case of KSP Shamugavel Nadar reported in 153 ITR 596, wherein the assessee has filed writ petition for condoning the delay of 21 years on the ground that he had been prosecuting other remedies and hence, the time taken bonafide for prosecuting other remedies should be taken into consideration for condoning the delay. The Hon’ble High Court held that there exists a reasonable for filing the appeals belatedly.

7.10 The next question may arise whether delay was excessive or inordinate. There is no question of any excessive or inordinate when the reason stated by the assessee was a reasonable cause for not filing the appeal. I have to see the cause for the delay. When there was a reasonable cause, the period of delay may not be relevant factor. In fact, the Madras High Court in the case of CIT vs. K.S.P. Shanmugavel Nadai and Ors. (153 ITR 596) considered the to 284/Bang/2024 Bethala Petropacks Pvt. Ltd., Bangalore Page 13 of 15 condonation of delay and held that there was sufficient and reasonable cause on the part of the assessee for not filing the appeal within the period of limitation. Accordingly, the Madras High Court condoned nearly 21 years of delay in filing the appeal. When compared to 21 years, 93 days cannot be considered to be inordinate or excessive. Furthermore, the Chennai Tribunal by majority opinion in the case of People Education and Economic Development Society (PEEDS) v. ITO (100 ITD 87) (Chennai) (TM) condoned more than six hundred days delay. It is pertinent to mention herein that the view taken by the present author in that case was overruled by the Third Member. 7.11 The Madras High Court in the case of Sreenivas Charitable Trust (280 ITR 357) (Mad.) held that no hard and fast rule can be laid down in the matter of condonation of delay and the Court should adopt a pragmatic approach and the Court should exercise their discretion on the facts of each case keeping in mind that in construing the expression "sufficient cause" the principle of advancing substantial justice is of prime importance and the expression "sufficient cause" should receive a liberal construction. Therefore, this Judgment of the Madras High Court (supra) clearly says that in order to advance substantial justice which is of prime importance, the expression "sufficient cause" should receive a liberal construction. In this case, the issue on merit regarding granting of deduction u/s. 80IB was covered in favour of the assessee by the Judgment of the Madras High Court. Therefore, for the purpose of advancing substantial justice which is of prime importance in the administration of justice, the expression "sufficient cause" should receive a liberal construction. In my opinion, this Judgment of the Madras High Court is also squarely applicable to the facts of this case. A similar view was taken by the Madras High Court in the case of Venkatadri Traders Ltd. v. CIT (2001) 168 CTR (Mad) 81 : (2001) 118 Taxman 622 (Mad). to 284/Bang/2024 Bethala Petropacks Pvt. Ltd., Bangalore Page 14 of 15 7.12 The Mumbai Bench of this Tribunal in the case of Bajaj Hindusthan Ltd. v. Jt. CIT (AT) (277 ITR 1) has condoned the delay of 180 days when the appeal was filed after the pronouncement of the Judgment of the Apex Court. Furthermore, the Revenue has not filed any counter-affidavit opposing the application of the assessee for condonation of delay. The Apex Court in the case of Mrs. Sandhya Rani Sarkar vs. Smt. Sudha Rani Debi (AIR 1978 SC 537) held that non-filing of affidavit in opposition to an application for condonation of delay may be a sufficient cause for condonation of delay. In this case, the Revenue has not filed any counter- affidavit opposing the application of the assessee, therefore, as held by the Apex Court, there is sufficient cause for condonation of delay. The Supreme Court observed that when the delay was of short duration, a liberal view should be taken. "It does not mean that when the delay was for longer period, the delay should not be condoned even though there was sufficient cause. The Apex Court did not say that longer period of delay should not be condoned. Condonation of delay is the discretion of the Court/Tribunal. Therefore, it would depend upon the facts of each case. In our opinion, when there is sufficient cause for not filing the appeal within the period of limitation, the delay has to be condoned irrespective of the duration/period. In this case, the non-filing of an affidavit by the Revenue for opposing the condonation of delay itself is sufficient for condoning the delay in filing the appeals before the CIT(A). 7.13 In view of the above, we are condoning the delay in filing the appeals before ld. CIT(A) belatedly and the appeals are admitted for adjudication by exercising the power u/s 253(5) of the Act. On merit, the similar issue raised before us has been considered by the jurisdictional High Court in assessee’s own case in WP No.33123 of 2017 dated 18.11.2021 for the assessment year 2011-12, wherein observed the ld. AO has not properly or correctly considered or to 284/Bang/2024 Bethala Petropacks Pvt. Ltd., Bangalore Page 15 of 15 appreciated the objections or replies or documents submitted by the assessee and has proceeded to pass the impugned orders, which is a unreasoned and non-speaking order without considering or appreciating the several contentions urged by the assessee or documents produced by the assessee or hearing the assessee and consequently the impugned order being violative of principles of natural justice, the same deserves to be quashed and the matter remitted back to the ld. AO for reconsideration afresh in accordance with law within the stipulated time frame. In view of the above order of the Hon’ble High Court in writ petition cited (supra), we remit the entire issue in dispute in all these appeals to the file of ld. AO to decide afresh in accordance with law after giving a fair opportunity of hearing to the assessee and decide accordingly.