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Facts
The assessee's appeal was filed after a delay of 554 days against an ex-parte order by the NFAC. The assessee claimed to have shifted to Delhi in 2013-14 for livelihood, leading to non-receipt of notices and inability to comply. The delay was also attributed to changing counsel.
Held
The Tribunal acknowledged the delay in filing the appeal. Citing various precedents, it emphasized that substantial justice should be preferred over technicalities. The Tribunal condoned the delay, setting aside the ex-parte order and remanding the matter back to the CIT(A) for a fresh decision after giving the assessee a reasonable opportunity of being heard.
Key Issues
Whether the delay in filing the appeal can be condoned, and if so, whether the assessee should be granted another opportunity to represent their case on merits.
Sections Cited
147, 144, 1961
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Income Tax Appellate Tribunal, AGRA BENCH ‘SMC’ AGRA
Before: SHRI SUNIL KUMAR SINGH & SHRI BRAJESH KUMAR SINGH
Date of Hearing 03.04.2025 Date of Pronouncement 03.04.2025 ORDER PER BRAJESH KUMAR SINGH, AM,
This appeal filed by the assessee is directed against the ex-parte order dated 13.06.2023 of National Faceless Appeal Centre, Delhi, relating to Assessment 2012-13 arising out of order u/s 147 r.w.s 144 of the Income Tax Act, 1961 (hereinafter referred to ‘the Act’) dated 29.12.2019 passed by the Income Tax Officer, Ward-1(1)(5), Agra.
None appeared on behalf of the assessee, however, the assessee had filed an adjournment petition, which was rejected and the appeal is being decided after hearing the ld. Sr. DR and on the basis of material available on record.
The assessee has filed this appeal after delay of about seven months.
In this regard, the assessee has filed a condonation petition, which is reproduced as under:-
MAY IT PLEASE YOUR HONOUR: This appeal is against the order dated 13.06.2023 passed by the National Faceless Appeal Center (NFAC), Delhi. The said order got served on the 'appellant' on 13.06.2023 (Date of order as mentioned in appellate order) and the appeal was filed on 16.02.2025 and thus going by the above period, the appeal is delayed by 554 days.
It is submitted that during 2013-14, I had shifted myself to Delhi for purpose of livelihood as I was not in a position to continue at Agra in absence any kind of work/job to earn livelihood and, therefore, under these compelling circumstances, 1 had no other option except to move out of Agra. Therefore, I shifted to Delhi to join my brother-in-law just to earn livelihood. Therefore, under these circumstances none of notices issued either by the Assessing Officer or by the First Appellate Authority could be received by me and this was the only reason that compliance of the respective notices could not be made in due course of time resulting in passing of ex-parte order at both the stages.
It is most humbly submitted that I have not received the impugned Appellate order till date because I was not present at Agra. However, when I contacted my Counsel to know about the Vivad Se Vishwas Tak Scheme launched by the CBDT, who after searching on Department's Portal informed me that the appeal in the matter has already been decided on 13.06.2023 and as such no benefits could be availed of by me on account of the impugned Scheme launched by the CBDT. Disappointed with the approach of the previous counsel, I, intended to change the counsel for the purpose of representation before the Hon'ble ITAT. However, in the process there was delay in obtaining assessment file from the old counsel and therefore the file could not be handed over to the new counsel well with in time. The files were handed over till 14.02.2025.
In the case of Angela J. Kazi vs. ITO (2006) 10 SOT 139 (Mum.) it was held as under: It must be remembered that in every case of delay their can be some lapse on the part of the litigant concerned but that alone is not enough to turn down the plea and to shut the doors against him. The length of delay is immaterial. It is the acceptability of the explanation that is the only criteria for condoning the delay.
In the case of Collector, Land Acquisition vs. Mst Katiji & Ors (1987) 167 ITR 471 (S.C) (S.C) the Hon'ble Supreme Court in its trend setting pronouncement held as under:- "Appeal (Tribunal)-Condonation of delay "Sufficient cause" "Sufficient cause" for the purpose of condonation of delay should be interpreted with a view to do even handed justice on merits in preference to approach which scuttles a decision on merits-The power to condone delay is conferred with a view to enable the courts to do substantial Justice to litigants by disposing of the eases on merits. The legislature has conferred the power to condone delay by enacting s. 5 of the Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on "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. 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 common sense and pragmatic manner.
4. When substantial justice and technical considerations 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.
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.
It must be grasped that the judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
Hon'ble Allahabad High Court in the case of Auto Centre vs. State of Uttar Pradesh & Ors. (2005) 278 ITR 291 (All.) held as under: We are of the opinion that the approach of the Tribunal is pedantic, while in matters of condonation of delay it should be pragmatic and liberal. The law of limitation is enshrined in the maxim interest republicaeut sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
In the case of Bharat Auto Center vs. CIT (2006) 282 ITR 366 (All) it was held by the Hon'ble Allahabad High Court that: The CIT(A) as well as the Tribunal have taken pedantic view while considering the application for condonation of delay. It has been consistently held by the apex Court that in the matter of condonation of delay, a liberal and pragmatic view should be taken. The reasons given by the appellant for the delay appear to be sufficient cause and, accordingly, the delay is liable to be condoned. The law of limitation is enshrined in the maxim 'interest reipublicae up sit finis litium' (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time. The order of the Tribunal and the order of the CIT(A) are set aside. The matter is remanded back to the CIT(A) to decide the appeal on merit after giving opportunity of hearing in accordance to the law.
3.1. We have considered the reasons for the said delay and found to be reasonable and bona fide. We, therefore, condone this delay and admit this appeal for hearing.
Brief facts of the case: In this case, the assessment was completed u/s 147/144 of the Act on 29.12.2019 in which the addition to the extent of Rs.33,04,000/- was made on account of purchase of immovable property amounting to Rs.33,04,000/- (Rs.29,51,000/- + Rs.3,53,000/-)
stamp duty.
Aggrieved with the said order, the assessee filed an appeal before the Ld. CIT(A). The Ld. CIT(A) dismissed the appeal of the assessee ex-parte and also on the ground that the main reason of the assessee for not receiving of any of the notice during the assessment proceedings was that the assessee had shifted to Delhi in the year 2013-14, which according to the ld. CIT(A) has no merit. The ld. CIT(A) has noted that despite several notice issued, the assessee failed to appear before the appellate proceedings and therefore the ld. CIT(A) was not inclined to interfere with the findings of the AO and confirmed the addition made in the assessment order.
Aggrieved with the said order, the assessee is in appeal before us.
We have heard the ld. DR and perused the material available on record. The assessee in grounds no.4 and 5 has explained the reasons for not appearing before the Ld. CIT(A). Considering the explanation of the assessee and in the interest of justice, one more opportunity is given to the assessee to represent his case effectively before the ld. CIT(A). We, therefore, set-aside the order of the ld. CIT(A) and restore the matter to his file to pass an order afresh after giving a reasonable opportunity of being heard to the assessee. Further, the assessee is also directed to appear before the ld. CIT(A). Accordingly, grounds of appeal raised by the assessee are allowed for statistical purposes.
In the result, the appeal of the assessee is allowed for statistical purpose.
Order pronounced in the open court on 3rd April, 2025.