DEVGAS PATIDAR,BHOPAL vs. ITO - 2(4), BHOPAL
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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI VIJAY PAL RAO & SHRI B.M. BIYANI
आदेश / O R D E R
Per B.M. Biyani, AM:
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.
Shri Devgas Patidar, Bhopal ITA No.406/Ind/2023 Assessment Year 2007-08
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,
Shri Devgas Patidar, Bhopal ITA No.406/Ind/2023 Assessment Year 2007-08
1987 2 SCC 387 that whenever substantial justice and technical
considerations are opposed to each other, the cause of substantial justice must
be preferred by adopting a justice-oriented approach. Thus, taking into account
the provision of section 253(5) and the decision of Hon’ble Supreme Court, we
take a judicious view, condone delay, admit appeal and proceed with hearing.
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 ITA No. 536/Ind/2018 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
Shri Devgas Patidar, Bhopal ITA No.406/Ind/2023 Assessment Year 2007-08
Resultantly, this appeal is allowed.
Order pronounced in open court on 26.07.2024
Sd/- sd/- (VIJAY PAL RAO) (B.M. BIYANI) JUDICIAL MEMBER ACCOUNTANT MEMBER
Indore िदनांक /Dated : 26.07.2024 CPU/Sr. PS Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPYAssistant Registrar Income Tax Appellate Tribunal Indore Bench, Indore
