AASIFE BIRIYANI PVT. LTD.,CHENNAI vs. ITO, CORPORATE CIRCLE-1(1), CHENNAI

We find that the issue deficit appeal fees is squarely covered in favour of the assessee by the decision of the Co-ordinate Bench of the Tribunal in the case of Anil Kumar Ohja (supra) which held as under:- ‘’2. We find that there is a letter filed by the assessee whereby he objected to a notice from the Registry regarding short payment of fees. Ld. counsel for the assessee submitted that the appeal was dismissed by the CIT(Appeals) only on the ground of non-appearance and not on merits. Therefore, as per the assessee, the fees as per clause (d) of Section 253(6) of Income-tax Act, 1961 (in short 'the Act') was only 500/-. In support, learned counsel has filed a decision of Hon'ble Karnataka High Court in the case of Rajakamal Polymers (P) Ltd. v. CIT (291 ITR 314) and also a decision of Hon'ble Patna High Court in the case of Dr. Ajith Kumar Pandey v. ITAT (310 ITR 195).

We find that CIT(Appeals) had dismissed the assessee's appeal for non- prosecution and had not considered the issue on merits. In our opinion, in such a situation, the fees paid has to be as per clause (d) of Section 253(6) of the Act. The assessee has rightly paid the sum of 500/- as stipulated in the said clause of the Act. In the case of Rajakamal Polymers (P) Ltd. (supra), Hon'ble Karnataka High Court had held that when an appeal was rejected by the CIT(Appeals) on the ground of limitation, the fee payable for further appeal before this Tribunal, was only 500/- under clause (d) of Section 253(6) of the Act. In our opinion, there is not much difference between an order of CIT(Appeals) which is not on merits, but dismissing an appeal whether on account of limitation or on account of non-appearance of the parties. In this view of the matter, we admit the appeal of the assessee’’.

We have also deliberated upon the reasons given in form 35 for delay in filing appeal before the ld.CIT(A). The reason for delay in filing the appeal is given as under: “The Accountant and Auditor with whom the relevant documents were entrusted with was out of station for their personal and professional work.”

The Hon’ble Supreme Court in Collector, Land Acquisition, Anantnag v. Katiji, [A.I.R. 1987 (S.C.) 1353] has emphatically held that Courts should take a liberal, justice-oriented, justifiable and reasonable approach in condoning the delay. The Courts have been reminded that a party who, as per the present adversial legal system, has selected his advocate, briefed him and paid his fees can remain supremely confident that his lawyer will look after his interest and such an innocent party who has done everything in his power and expected of him, should not suffer for the inaction, deliberate omission or misdemeanor of his counsel. Again, the Hon’ble Supreme Court in Indian Oil Corporation Ltd. And Ors vs. Subrata Borah Chowlek and Ors. (supra) has succinctly held thus: 7. Having heard the learned counsel, we are of the opinion that in the instant case a sufficient cause had been made out for condonation of delay in filing the appeal and therefore, the High Court erred in declining to condone the same. It is true that even upon showing a sufficient cause, a party is not entitled to the condonation of delay as a matter of right, yet it is trite that in construing sufficient cause, the Courts generally follow a liberal approach particularly when no negligence, inaction or mala fides can be imputed to the party.

We have gone through the orders of lower authorities and submissions addressed by both parties before us. Taking guidance from the Hon’ble Supreme Court judgment referred supra, we find that the reasons given by the assessee a ‘sufficient cause’ hence condone the delay in filing appeal before the ld.CIT(A). We also find that assessee has not entered appearance before the ld. Assessing Officer as well as the ld. CIT(A) despite notices issued, hence in the interest of justice assessee should be given one more opportunity before the Assessing Officer to prosecute his case. Therefore, in the light of aforesaid factual position we deem it fit to set aside this appeal to the file of Assessing Officer for denovo assessment. The Assessing Officer who shall proceed for denovo assessment after providing proper opportunity of hearing to the assessee subject to cost of Rs.5000/- which shall be deposited by the assessee within 30 days from the date of receipt of this order to ‘Tamil Nadu State Legal Services Authority’ at Hon’ble High Court of Madras. The proof of the same will be furnished by the Assessee before Ld.AO. The assessee is directed to substantiate its case forthwith without any fail, failing which Ld.AO shall be at liberty to proceed with the denovo assessment on merits. The appeal filed by the assessee is allowed for statistical purpose

In the result, appeal filed by the assessee is allowed for statistical purpose.