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Facts
The assessee filed an appeal with a delay of 474 days, citing business closure due to financial difficulties, being a senior citizen, and old age diseases hindering email access. Separately, there was a delay of 42 days in filing a first appeal before the CIT(A) without a condonation application.
Held
The Tribunal condoned the 474-day delay in filing the present appeal, considering the assessee's explanation and the liberal approach towards condonation of delays for substantial justice. However, regarding the first appeal, the Tribunal reserved liberty for the assessee to file a condonation application before the CIT(A).
Key Issues
Whether the delay in filing the appeal can be condoned based on the grounds provided by the assessee? What is the procedure for dealing with a delay in filing a first appeal before the CIT(A) when no condonation application was filed?
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Income Tax Appellate Tribunal, DELHI
1. The present appeal is filed by the Assessee against the order of Ld. Commissioner of Income Tax (Appeals/ National Faceless Appeal Centre (‘Ld. CIT(A)/NFAC’ for short), New Delhi dated 31/10/2023 for the Assessment Year 2010-11.
There is a delay of 474 days in filing the present Appeal. The Assessee filed an application for condoning the delay on the ground that, business of the Assessee was close down since past so many years due to financial difficulties in business. Further, contended that the Assessee being a senior citizen, suffering from various old age diseases and the Assessee could not check the e-mail, which resulted in filing the Appeal before the Tribunal belatedly. Thus, sought for condoning the delay in filing the present Appeal.
Per contra, the Ld. Department's Representative submitted that, there is no sufficient cause to condone the inordinate delay, therefore, sought for dismissal of the present Appeal on delay in latches.
We have heard both the parties and perused the material available on record on the issue of delay in filing the present Appeal before the Tribunal. The Assessee in the Application for condonation of delay contended that the business of the Assessee was closedown since past so many years due to financial difficulties in business.
Further, contended that the Assessee being a senior citizen suffering from various old age diseases and the Assessee could not check the e- mail, which resulted in filing the Appeal before the Tribunal.
The Hon'ble Supreme Court time and again clarified that the delay in filing the Appeal with sufficient cause should be looked into in a liberal way and shall condone the delay. In the landmark decision in Collector, Land & Acquisition vs. Mst. Katiji& Others (1987) 167 ITR 471 (SC), the Hon'ble Supreme Court settled the law that the delay when supported by justifiable reasons, must make way for the cause of substantial justice. Considering the above facts and circumstances, we condone the delay of 474 days in filing the present Appeal.
The grievance of the Assessee that, first appeal filed by the Assessee has been dismissed by the Ld. CIT(A) without condoning the delay of 42 days, which is erroneous and deserves to be set aside.
Thus, sought for allowing the Appeal.
Per contra, the Department's Representative submitted that no application for condonation of delay has been field by the Assessee before the Ld. CIT(A), therefore, the Appeal of the Assessee has been rightly dismissed by the Ld. CIT(A) on delay in latches. Thus, sought for dismissal of the present appeal.
We have heard both the parties and perused the material available on record. The Assessee preferred an Appeal aggrieved by the assessment order with a delay of 42 days, however, the Assessee has not filed any application for condonation of delay. As per the Assessee, the Assessee applied for certified copy vide letter dated 17th January, 2018 and the Assessee was served with the certified copy of the assessment order on 17th January, 2018 and appeal was filed within the statutory period of filing the Appeal i.e. on 10th February 2018, therefore, there is no requirement to file application for condonation of delay.
In the present case assessment order has been passed on 31/11/2017, Assessee claim to have filed application of certified copy of the assessment order only on 17/01/2018 and obtained the certified copy on the very same day and filed appeal before the Ld. CIT(A) on 10/02/2018. No doubt, the limitation for filing the Appeal starts from the date of service of the assessment order, however, in the present case, the Assessee has filed application for the certified copy of the assessment order dated 31/11/2017 only on 17/01/2018 and the copy has been made available on 17/01/2018 itself and Appeal filed on 31/11/2017.
While calculating the period of limitation, the time taken by the authority can only be exemptedand the time taken by the Assessee for applying the certified copy cannot be exempted. The Assessee cannot contend that there is no delay in filing the Appeal when the Assessee himself did not file the application for certified copy of the assessment order on the very same day of passing of the order. In such circumstances, the Assessee shall file application for condonation of delay by explaining the cause for such delay.
In view of the above, we reserve liberty to the Assessee to file application for condonation of delay before the Ld. CIT(A) for condoning delay of 42 days in filing the First Appeal and if such application is filed by the Assessee, the Ld. CIT(A) is directed to consider the same liberally and decide the appeal on merits after hearing the Assessee.
In the result, Appeal of the Assessee is partly allowed for statistical purpose.