VIJAY PRAKASH SHARMA,JAIPUR vs. I.T.O, WARD 4(4), JAIPUR, JAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, ‘’SMC” JAIPUR Jh lanhi xkslkbZ] U;kf;d lnL; ds le{k BEFORE: Hon’ble SHRI SANDEEP GOSAIN, JUDICIAL MEMBER vk;dj vihy la-@ITA No.774/JP/2023 fu/kZkj.k o"kZ@Assessment Year : 2011-12 cuke Shri Vijay Prakash Sharma The ITO 16, Gayatri Nagar, Alok Vihar Vs. Ward 4(4) VKI Road No. 14, Jaipur Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: BVLPS 4053 C vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri G.M. Mehta, CA jktLo dh vksj ls@ Revenue by: Mrs. Monisha Chaudhary Addl. CIT lquokbZ dh rkjh[k@ Date of Hearing : 19/03/2024 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 10 /06/2024 vkns'k@ ORDER PER: SANDEEP GOSAIN, JM This appeal filed by the assessee is directed against order of the ld. CIT(A) dated 10-11-2023, National Faceless Appeal Centre, Delhi [ hereinafter referred to as (NFAC) ] for the assessment year 2011-12 raising therein following solitary ground of appeal. ‘’The ld. CIT(A) was not justified in dismissing the appeal solely on the ground of delay in filing appeal, ignoring the sufficient and unintended cause explained for such delay in Form No. 35 nor he provided specific opportunity to explain the reasons for delay nor did he act liberally for condonation of delay (Hon’ble Supreme Court of

2 ITA NO. 774/JP/2023 VIJAY PRAKASH SHARMA VS ITO, WARD 4(4), JAIPUR India in case of Collector Land Acquisition vs Mst. Katiji) more so when assessee never stood to gain any benefit from such delay and AO himself did not object for it as per his remand report dated 30-11- 2022.’ 2.1 Apropos solitary Ground of the assessee, the Bench noted that the ld. CIT(A) passed an ex-parte order by dismissing the appeal of the assessee on the ground of inordinate delay in filing the appeal before him and relevant narration of the ld. CIT(A)’s order is as under:- ‘’8. Decision:- I have considered the facts of the case and submissions by the appellant. Before going into merits of the case, the appellant needs to justify the delay in filing the appeal. Only for convincing reasons alongwith documentary evidence can the CIT(A) condone a delay. In the instant case, the appellant has asserted non- service of the statutory notices initially as the main reason. However, when confronted with the remand report obtained from the AO in this regard, the appellant has changed the stand now stating that this as a sub-ground. As per the remand report, the issue of service of notice is settled and therefore, the reasons given for delay in filing of appeal are not found acceptable. The appellant has not furnished any documentary evidence to justify the inordinate delay. It is not just and proper at this stage to raise the issue after a gap of more than 1012 days. It is for general welfare that a period but put on litigation. Further, it is a general principle of law and that law is made to protect only diligent and vigilant people. Equity aids the vigilant and not the indolent. Law will not protect people who are not careful about their rights. (Vigilentibus nor dormientibus jura Subventiunt). Moreover, there should be certainly in law and matters cannot be kept in suspense indefinitely . It is therefore, provided that Courts of Law cannot be approached beyond fixed period. In civil matters, the limit is provided in Limitation Act, 1963. 10.2 The Law of Limitation' prescribes the time-limit for different suits within, which an aggrieved person can approach the court for redress or justice. The suit, if filed after the expiry of time-limit, is

3 ITA NO. 774/JP/2023 VIJAY PRAKASH SHARMA VS ITO, WARD 4(4), JAIPUR struck by the law of limitation. It's basically meant to protect the long and established user and to indirectly punish persons who go into a long slumber over their rights. 10.3 Under section 249(3) of IT Act, 1961 and first appellate authority may on good and sufficient reasons for delay being shown, admit appeal after expiry of limitation of time for filing appeal. Section provides as follows: - Form of appeal and limitation. 249. (1) Every appeal under this Chapter shall be in the prescribed form and shall be verified in the prescribed manner (and shall, in case of an appeal made to the Commissioner (Appeals) on or after the 1st day of October, 1998, irrespective of the date of initiation of the assessment proceedings relating thereto be accompanied by a fee of- (7) where the total income of the assessee as computed by the Assessing Officer in the case to which the appeal relates is one hundred thousand rupees or less, two hundred fifty rupees, (i) where the total income of the assessee, computed as aforesaid, in the case to which the appeal relates is more than one hundred thousand rupees but not more than two hundred thousand rupees, five hundred rupees; (ii) where the total income of the assessee, computed as aforesaid, in the case to which the appeal relates is more than two hundred thousand rupees, one thousand rupees;)

[(iv) where the subject matter of an appeal is not covered under clauses (i), (8) and (iii), two hundred fifty rupees.) (2) The appeal shall be presented within thirty days of the following date, that is to say,- [(a) where the appeal is under section 248, the date of payment of the tax, or]

4 ITA NO. 774/JP/2023 VIJAY PRAKASH SHARMA VS ITO, WARD 4(4), JAIPUR (b) where the appeal relates to any assessment or penalty, the date of service of the notice of demand relating to the assessment or penalty. [Provided that, where an application has been made under section 146 for reopening an assessment, the period from the date on which the application is made to the date on which the order passed on the application is served on the assessee shall be excluded, or] (c) in any other case, the date on which intimation of the order sought to be appealed against is served. [(2A) Notwithstanding anything contained in sub-section (2), where an order has been made under section 201 on or after the 1st day of October, 1998 but before the 1st day of June, 2000 and the assessee in default has not presented any appeal within the time specified in that sub-section, he may present such appeal before the 1st day of July, 2000] (3) The [***] [Commissioner (Appeals)] may admit an appeal after the expiration of the said period if he is satisfied that the appellant had sufficient cause for not presenting it within that period (4) No appeal under this Chapter shall be admitted unless at the time of filing of the appeal,- (a) where a return has been filed by the assessee, the assessee has paid the tax due on the income returned by him; or (b) where no return has been filed by the assessee, the assessee has paid an amount equal to the amount of advance tax which was payable by him. Provided that, [in a case falling under clause (b) and) on an application made by the appellant in this behalf, the [*] [Commissioner (Appeals)) may, for any good and suflicient reason to be recorded in writing, exempt him from the operation of the provisions of [that clause].]

5 ITA NO. 774/JP/2023 VIJAY PRAKASH SHARMA VS ITO, WARD 4(4), JAIPUR 10.4 The procedure in appeal laid down by the Faceless Appeal Scheme, 2020 notified via S.O. 3296(E) dated 25.09.2020 is reproduced as below for ready reference. 5. Procedure in appeal. (1) The appeal referred to in paragraph 3 shall be disposed of under this Scheme as per the following procedure, namely: (1) the National Faceless Appeal Centre shall assign the appeal to a specific appeal unit in any one Regiooni Faceless Appeal Centre through an automated allocation system; (ii) where the appellant has filed the appeal after the expiration of time specified in sub-section (2) of section 249 of the Act, the appeal unit may, - (a) in case, it is satisfied that the appellant had sufficient cause for not filing the appeal within the said time, admit the appeal, or (b) in any other case, roject the appeal, under intimation to the National Faceless Appeal Centre; 10.5 I find that delay of 1012 days is an inordinate delay. A pragmatic approach can be espoused when delay is short. While interpreting 'sufficient cause' vs advancing cause of 'substantial justice', period of delay cannot be ignored out of hand. Such a long delay will also cause grave prejudice to revenue. State as a party to this litigation need to be given equal treatment. 10.6 On the issue of condonation of delay in filing appeal the decision of Hon'ble Punjab & Haryana High Court in the case of CIT v. Ram Mohan Kabra (2003) 132 Taxman 516 (Punj & Har.) is relevant. It rejected Revenue's appeal to condone 5 days delay in filing appeal relying on decision in the case of P.K.Ramchandran vs. State of Kerala AIR 1998 SC 2276. The specific para from the Supreme Court Judgment as reproduced by the learned High Court in its order is as below: "The provisions relating to prescription of limitation in every statute

6 ITA NO. 774/JP/2023 VIJAY PRAKASH SHARMA VS ITO, WARD 4(4), JAIPUR must not be construed so liberally that it would have the effect of taking away the benefit accruing to the other party in a mechanical manner. Where the Legislature spells out a period of limitation and provides for power to condone the delay as well, then such delay can be condoned only for sufficient and good reasons supported by cogent and proper evidence. Now, it is a settled principle of law that provisions relating to specified period of limitation must be applied with their rigour and effective consequences". In this case, the ITAT refused to condone delay of 5 days in filing appeal by Revenue. The Punjab & Haryana High Court confirmed the decision stating as above. 10.7 In case of JCIT Vs. Tractors & Farm Equipments Ltd., [2007] 104 ITD 149 (Chennai)(TM) delay was not condoned by the Hon'ble ITAT as it was due to negligence and inaction on part of appellant which could have very well be avoided by exercise of due care and attention. 10.8 Hon'ble ITAT in the case of ITO V. Hemraj Onkarji Mali, [2007] 108 TTJ 1061 ITD 513(Indore) decided that there was no reasonable cause for delay on part of revenue. This decision once taken cannot justify delay to file appeal. Hence, the reasonable cause for delay was not established. 10.9 In the case of Madhu Dadha Vs. ACIT, [2009] 317 ITR 458 (Mad.) the learned Court while dismissing appeal noticed that assessee had not explained cause of delay in filing appeal. It held as under: 14. At this juncture, we have to be guided by the judgment reported in [1990] 1 LLN 457 in the case of T.N.M. BANK LTD. v. APP. AUTY., SHOPS ACT. In that particular case, the Division Bench of this court has held that, We are of the view that the question of limitation is not merely a technical consideration. Rules of limitation are based on principles of

7 ITA NO. 774/JP/2023 VIJAY PRAKASH SHARMA VS ITO, WARD 4(4), JAIPUR sound policy and principles of equity. Is a litigant liable to have a Damocles' sward hanging over his head indefinitely for a period to be determined at the whims and fancies of the opponent?" In that decision, this Court has held that the delay of 285 days in preferring the appeal could not be condoned. It was held that the condonation of delay was not justified on facts and evidence of the case. As rightly pointed out that the Rules of limitation are based on principles of sound public policy and principles of equity. Though there is no presumption that the delay is occasioned deliberately or on account of culpable negligence, if the admitted facts in that case are taken note of, there is no doubt that the delay on the part of the appellant is deliberate and the appellant is clearly guilty of culpable negligence. Such negligent attitude of the appellant was not taken care to preserve the right of appeal and having been slept over for more than 558 days and not explained the delay without any reasonable doubt, the appellant cannot avail sympathy or discretion of this Court. 15. In any way of the matter, the discretion having been rightly refused by the Tribunal, there is no sufficient reason or cause to interfere with the order passed by the Tribunal. Hence, the appeal is dismissed. No costs. Consequently, connected TAMP is also dismissed. 9. In view of the aforesaid discussion, I believe in the present case, the appellant has failed to prove sufficient cause for delay in filing this appeal as envisaged u/s.249(3) of the I.T.Act. Therefore, it is held that the cause of substantial justice would not be served by condoning inordinate delay of 1012 days. Therefore, appeal stand dismissed in lime line in view of non-compliance of the provision of section 249(3) of Income tax Act, 1961 read with Faceless Appeal Scheme 2020 Paragraph 5(1)(ii) (b) 10. As a result appeal filed by the appellant for A.Y. 2011-12 is treated as dismissed.’’ 2.2 During the course of hearing, the ld. AR of the assessee has ld. AR of the assessee has filed the following detailed written submission alongwith paper book

8 ITA NO. 774/JP/2023 VIJAY PRAKASH SHARMA VS ITO, WARD 4(4), JAIPUR and further submitted that the ld. CIT(A) is not justified in dismissing the appeal solely on the ground of delay in filing the appeal, ignoring the sufficient and unintended cause explained for such delay in Form No. 35 and thus not providing sufficient opportunity to explain the reasons for such delay. 2.3 Further the ld. AR of the assessee has filed a detailed affidavit of the assessee Shri Vijay Prakash Sharma who deposed as under the reasons for the delay in filing the appeal before the ld.CIT(A). ‘’I Vijay Prakash Sharma S/o Shri Om Prakash Sharma 42 years resident of 15, Anand Vihar Ext. Macheda, Harmara, Sikar Road, Jaipur solemnly affirm and state as under: (1) That original Return of income for the AY 2011-12 was submitted by me on 31.03.2012 vide acknowledgement No. 376780410310312 (PAN: BVLPS4053C) giving my old address which was 88, Krishna Nagar, Naya Khera, Jaipur where I was residing for last more than ten years. (2) That after filing the return of income, I was forced by the house owner to vacate the said old house No. 88 Krishna Nagar, Jaipur and therefore I had shifted temporarily to 15, Gayatri Nagar, Alok Vihar, Road, No. 14, V.K.Ind. Area, Jaipur. The address of 15, Gayatri Nagar, Jaipur was also informed to Income tax Department at which order of penalty under sec. 271(1)(c) and demand notice dated 20.06.2017 were issued to me but I did not receive the said order u/s. 271(1)(c)/demand notice as I had shifted to new address at 15, Anand Vihar Ext. Macheda, Harmada, Sikar Road, Jaipur. (3) After staying for less than a year at 15, Gaytri Nagar, Alok Vihar, Road No. 14, V.K. Industrial Area, I had shifted to the present address which is Macheda, Harmara, Sikar Road, Jaipur,

9 ITA NO. 774/JP/2023 VIJAY PRAKASH SHARMA VS ITO, WARD 4(4), JAIPUR (4) That had never received any notice under sec. 148 of Income tax Act nor the same was re-directed to me by the earlier land-lord nor by Income tax department. (5) That after shifting to my new address at 15. Anand Vihar Ex Macheda, Harmada, Sikar Road, Jaipur, the new address was also got changed in my PAN data base. (6) That on 30th Sept. 2019 when I came to know from the Bank about the attachment of my bank account by the Income tax Department against outstanding Income tax demand, I requested my CA and A/R Shri G.M.Mehta to know the details of such tax demand and to do the needful. (7) That from Shri Mehta, I came to know about ex-parte reassessment order passed in my case for the A.Y. 2011-12 and creation of demand. After payment of copying fee, on 4th October 2019 he applied for certified copy of reassessment order which, after second reminder to the Income tax Officer on 15th October 2029 was issued through e-mail on 15th October 2019 on receiving reminder, (8) After receiving copy of reassessment order, on-line appeal was filed by me on 20th Oct. 2019 which was delayed by 1012 days which is requested to be condoned considering the facts of the case and circumstances beyond my control. (9) That my above affidavit is true and correct, may god help me.’’ 2.4 On the other hand, the ld. DR strongly supported the order of the ld. CIT(A) 2.5 The Bench has heard both the parties and perused the materials available on record including the written submission of the ld AR of the assessee and the affidavit filed by the assessee. Brief facts of case are that return of income was submitted by the Assessee 31.03.2012 under deeming provisions of section 44AD of income tax Act. As per order dated 13.12.2016 u/s 147/143(3)/144 of it Act.

10 ITA NO. 774/JP/2023 VIJAY PRAKASH SHARMA VS ITO, WARD 4(4), JAIPUR Notice u/s. 148 was sent by registered post but was not received by the assessee as the assessee had vacated the rented premises. Thereafter other statutory notices were issued. In response to notice u/s. 144 issued by post, it was returned un- served with remark of postal authority "no body of the name resides at the given address". Ultimately the case was decided ex-parte but again, no reassessment order was received by the assessee as it was sent at the same old address. In this regard, the Solitary Ground raised by the assessee in this appeal is as under:- ‘’Ground No. (1), Ld. CIT (A) was not justified in dismissing the appeal solely on ground of delay in filing appeal, ignoring the sufficient and unintended cause explained for such delay in Form No. 35, nor he provided specific opportunity to explain the reasons for delay nor did he act liberally for condonation of delav (Hon'ble Supreme Court of India in case of Collector Land Acquisition Vs. Mst. Katiji) more so when assessee never stood to gain any benefit from such delay and ld. AO himself did not object for it as per his remand report dated 30.11.2022’’ It is noted that on 30th Sept. 2019, the assessee came to know about the attachment of his bank account, therefore, on 4th October 2019, after payment of Rs.50/- for copying fee (Paper books page 3 & 4) assessee had requested the AO to issue certified copy of assessment order supposed to be passed under section 144/147 of Income tax Act but not received by him. Assessee received copy of reassessment order on 15.10.2019 through mailing address of his ld. A/R. against which appeal under sec. 246A of Act was preferred on 20.10.2019. In memo of appeal (Form No. 35) at column (15), the reason of delay mentioned was as under:-

11 ITA NO. 774/JP/2023 VIJAY PRAKASH SHARMA VS ITO, WARD 4(4), JAIPUR "Because of change of address, no notice was received as admitted by ld. AO in order appealed against nor any efforts were made by the Id. AO for alternate service of notice or at the address given in Returns submitted. Only on attachment of bank account, appellant could know about ex-parte order. At the request of the appellant, on payment of copying fee, copy of order u/s. 144/147 was received on 15th October 2019 through mail against which on-line appeal before first appellate authority is being submitted today".

It is noted that in remand report dated 30.11.2022 (paper book page 5 & 6). The AO had given details of service of notice as "manual service of notice on the address" but nowhere it was admitted by the AO that the notice was served on the assessee (as the Assessee shifted to other address). Even in remand report, the AO did not challenge to appeal to be dismissed on delay ground. It is also noted that while dismissing the appeal for delay of 1012 days, ld. CIT(A) did not consider the reasons for delay as per Form No. 35 nor the fact that mala fide on part of assessee in delayed filing of appeal. It is also noted by the Bench that when the ld. AR of the assessee filed an affidavit of the assessee in support of his contentions which could not be controverted by the ld. DR. To this effect, the Bench relies on the following decisions on the issue in question. (A) In case of N. Balakrishnan V/s. M. Krishnamurthy (1998) 7 SSC 123(SC) wherein Hon'ble Supreme Court has explained the scope of limitation and condonation of delay, observing as under:- "The primary function of the court is to adjudicate the dispute between the parties and to advance substantial justice. The time limit fixed for approaching the Court in different situations is not

12 ITA NO. 774/JP/2023 VIJAY PRAKASH SHARMA VS ITO, WARD 4(4), JAIPUR because on the expiry of such time a bad cause would transform in to a goods cause. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy for the redress of the legal injury so suffered. The law of limitation is thus founded on public policy. B. In New India Insurance Co. Ltd. Vs. Smt. Shanti Misra AIR 1976 SC 237 Hon'ble Supreme Court has held that discretion given by section 5 should not be defined or crystallized so as to convert a discretionary matter in to right rule of law. The expression "sufficient cause" should receive a liberal construction.

In this appeal, it is noted that the assessee had late filed the appeal before the ld. CIT(A) for which the assessee could not substantiate the sufficient reason as to how such inordinate delay made by him in filing the appeal and such delay was not condoned by the ld. CIT(A) and thus the ld. CIT(A) ex-parte dismissed the appeal of the assessee. However, in view of the above deliberations and the case laws (supra) the Bench considers the petition and affidavit of the assessee only to the extent of condoning the delay in filing the appeal before the ld. CIT(A). In this situation and as a peculiar facts of the case, the delay is condoned with the direction to the assessee to contest the case before the ld, CIT(A) and submit the necessary documents before the ld. CIT(A). Thus the appeal of the assessee is restored to the file of the ld. CIT(A) to decide it afresh by providing one more opportunity of hearing, however, the assessee will not seek any adjournment on

13 ITA NO. 774/JP/2023 VIJAY PRAKASH SHARMA VS ITO, WARD 4(4), JAIPUR frivolous ground and remain cooperative during the course of proceedings. Thus the appeal of the assessee is allowed for statistical purposes. 2.3 Before parting, the Bench makes it clear that its decision to restore the matter back to the file of the ld. CIT(A) shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by ld. CIT(A) independently in accordance with law. 3.0 In the result, the appeal of the assesee is allowed for statistical purposes Order pronounced in the open court on 10 /06/2024.

Sd/- ¼lanhi xkslkbZ½ (Sandeep Gosain) U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 10/06/2024 *Mishra आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. The Appellant- Shri Vijay Prakash Sharma, Jaipur 2. izR;FkhZ@ The Respondent- ITO, Ward -4 (4), Jaipur 3. vk;dj vk;qDr@ The ld CIT 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 6. xkMZ QkbZy@ Guard File (ITA No.774/JP/2023) vkns'kkuqlkj@ By order,

सहायक पंजीकार@Aेेजज. त्महपेजतंत

14 ITA NO. 774/JP/2023 VIJAY PRAKASH SHARMA VS ITO, WARD 4(4), JAIPUR