DEVGAS PATIDAR,BHOPAL vs. ITO - 2(4), BHOPAL

Feeling aggrieved by appeal-order dated 30.01.2023 passed by learned CIT(A), NFAC, Delhi [“CIT(A)”] which in turn arises out of penalty-order dated 18.09.2015 passed by learned ITO-2(4), Bhopal [“AO”] u/s 271(1)(c) of Income- tax Act, 1961 [“the Act”] for assessment-year [“AY”] 2007-08, the assessee has filed this appeal on the grounds mentioned in Form No. 36.

Heard the learned Representatives of both sides and case-record perused.

The registry has informed that the present appeal is delayed by 204 days and therefore time-barred. Ld. AR for assessee submitted that the assessee has filed an application for condonation of delay supported by an affidavit on stamp. Referring to same, he submitted that the assessee met an accident in the year 2022 which fractured his leg and thereafter he had to undergo medical treatment and take rest as per medical advice continuously uptill the year 2023. The assessee has filed medical records in support. Hence, there occurred a delay of 204 days in filing the appeal. Ld. AR very humbly submitted that there is no deliberate lethargy, negligence, mala fide intention or ulterior motive of assessee in making delay and the assessee does not stand to derive any benefit because of delay. He further submitted that the sole reason of delay is the unfortunate situation of accident of assessee. He prayed to condone delay considering the circumstance. Ld. DR for Revenue was fair enough in considering the position of assessee and did not raise any objection. We have considered the explanation advanced by assessee and find that the assessee was having a sufficient cause for delay in filing present appeal. We find that section 253(5) of the Act empowers the ITAT to admit an appeal after expiry of prescribed time, if there is a sufficient cause for not presenting appeal within prescribed time. It is also a settled position by Hon’ble Supreme Court in Collector, Land Acquisition Vs Mst. Katiji and others 1987 AIR 1353,

Then, Ld. AR briefly submitted the background facts of the case. He submitted that the assessment of relevant AY 2007-08 under consideration was completed by AO vide assessment-order dated 30.03.2015 u/s 147/143(3) after making additions of Rs. 53,70,042/-. Thereafter, the AO passed penalty- order u/s 271(1)(c) on 18.09.2015 imposing a penalty of Rs. 13,99,500/- qua the additions made in assessment. Against assessment-order, the assessee went in appellate proceedings upto ITAT, Indore in and the ITAT has already decided assessee’s appeal on 29.07.2022 and remanded quantum-matter to AO for a fresh adjudication. Ld. DR did not controvert these factual submissions made by Ld. AR.

In view of above factual matrix, we observe that the original assessment- order dated 30.03.2015 which was the very basis for imposition of penalty u/s 271(1)(c) has already become non-est. When it so, there is no locus for the penalty-order to stand. Being so, we set aside the impugned penalty-order passed by AO. The AO is, however, at liberty to initiate fresh proceeding of penalty in accordance with law, if required on the basis of outcome of newer assessment-order. 3

Resultantly, this appeal is allowed.