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Income Tax Appellate Tribunal, ‘A’ BENCH, CHENNAI
Before: HON’BLE SHRI MANOJ KUMAR AGGARWAL, AM & HON’BLE SHRI MANU KUMAR GIRI, JM
आयकर अपीलीय अिधकरण ‘ए’ �ायपीठ चे�ई म�। IN THE INCOME TAX APPELLATE TRIBUNAL ‘A’ BENCH, CHENNAI माननीय �ी मनोज कुमार अ�वाल ,लेखा सद� एवं माननीय �ी मनु कुमार िग�र, �ाियक सद� के सम�। BEFORE HON’BLE SHRI MANOJ KUMAR AGGARWAL, AM AND HON’BLE SHRI MANU KUMAR GIRI, JM आयकरअपील सं./ ITA No.449/Chny/2024 (िनधा�रणवष� / Assessment Year: 2021-22) Neethivanan Jeyasudha, Vs. The Income Tax Officer, New No.P3, Old No.P13, Non Corporate Ward 19(4) 19th Street, Anna Nagar, Chennai. Chennai 600 040. [PAN: APLPJ5195D] (अपीलाथ�/Appellant) (��यथ�/Respondent) अपीलाथ� क� ओर से/ Appellant by : Shri. Varadarajan, CMA ��यथ� क� ओर से /Respondent by : Shri. R. Mukundan, IRS, JCIT. सुनवाई क� तार�ख/Date of Hearing : 13.06.2024 घोषणा क� तार�ख /Date of Pronouncement : 24.06.2024 आदेश / O R D E R PER MANU KUMAR GIRI (Judicial Member)
This appeal filed by the assessee is directed against the order of the Ld. Commissioner of Income Tax (Appeals) ADDL/JCIT(A) [‘CIT(A)’ in short] dated 28.12.2023 for Assessment Year 2021-22.
The following grounds appeal are raised:- ’Due to my health condition, I was not able to file the appeal within due date/time from the receipt of rectification order 05-06-2023. I have filed
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appeal on 28-08-2023 against original order US 143 (1) Instead of rectification order as there was no change in order, in appeal form I have mistakenly stated there was no delay in filing appeal, and same was asked clarification from the department on 29-10-2023. I was unable to give reply for the same in Income tax portal due to technical issues and the same issue was raised and reply for same were sent via email requesting for condone the delay and accept my appeal but the same was rejected. The department has passed an order U/S 143(1) on 28-12-2022 for the assessment year 2021-22, without giving what has been disallowed and added to Income, raised a demand order, so filed a grievance (Grievance Acknowledgement Number 10601076) 19-01-2023 for asking for basis of disallowance and items disallowed by department, got response to same on 17-04-2023, stating that I should have received a mail and check spam mail and apply for online rectification if resolution was not satisfying, where I have not not received any such mail intimation via mail or even in spam mails, so applied for online rectification on 10-05-2023, got same response as 143 (1) from rectification order dated 05-06 2023, without any information on disallowance. I have also deducted and deposited TDS for my expenses where ever applicable, and filed the TDS returns within due date of filing. I kindly request, to consider my request, and drop the demand notice issued by the department’’. 3. Brief facts of the case are that, the assessee is an individual and has e-filed the return income for assessment year (‘AY’ in short) 2021-22 on 29.12.2021 declaring an income of Rs.19,05,420/- under the Income Tax Act, 1961 (in short ‘the Act’). Thereafter, the case was processed u/s 143(1) on 28.12.2022 of the Act.
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The DDIT/ADIT-CPC issued intimation u/s 143(1) enhancing assessee’s total income by making disallowance /addition / adjustment of expenses at Rs.50,06,400/-.
As against the intimation u/s 143(1) dated 28.12.2022, the assessee has filed an appeal u/s 250 of CIT(A) with a delay of 7 months.
As per Section 249(2) of the Act appeal shall be presented within 30 days to the CIT(A) which can be condoned by the CIT(A) u/s 249(3) of the Act if he satisfies that the appellant on sufficient cause for not presenting the appeal within the said period. The assessee represented before the Ld. CIT(A) and filed reply dated 01.12.2023 stating reasons for the delay to the deficiency letter dated 24.11.2023 issued by the Ld. CIT(A). Assessee’s reply dated 01.12.2023 is as under: "I am NeethivananJeyasudha holding PAN APLPJ5195D. The Department has passed an order u/s 143(1) on 28-12-2022 for the assessment year 2021-22, without giving what items has been disallowed and added to income, raised a demand order, so filed a grievance (Grievance Acknowledgement Number 10601076) 19-01- 2023 for asking for basis of disallowance and items disallowed by department, got response to same on 17-04-2023 stating that I should have received a mail and check spam mail and apply for online rectification if resolution was not satisfying where I have not received any such mail intimation via mail or even in spam mails, so applied for online rectification on 10-05-2023, got same response for rectification order dated 05-06-2023. I have applied for appeal on 28-08-2023, on original section 143(1) dated 28-12-2022, since the rectification order was same as the original order, I kindly request you to condone the delay of filing the
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appeal as my health condition got was not well from June 23 to Aug 23 and do the needful at the earliest."
However, the CIT(A) observed that the appeal filed is not in conformity with the provisions of section 249(2) of the Act and appellant also has no “sufficient cause” in terms of section 249(3) of the Act hence appeal is dismissed as not maintainable.
We have gone through the appeal paper filed and find that the said approach of the CIT(A) is neither reasonable nor adopted liberal approach. In our view, the CIT(A) ought have condoned the delay and decide the appeal on merit.
How the power of condonation of delay is to be exercised, has been explaine by the Apex Court in the case of Collector, Land Acquisition v Mst. Katiji And Others- [167 ITR 471 (SC) @ Pg. 472] as under:- " The Legislature has conferred the power to condone delay by enacting section 51 of the Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on the 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 sub serves the ends of justice that being the life-purpose of the existence of the institution of courts. It is common knowledge that the 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. Ordinarily, a litigant does not stand to benefit by lodging an appeal late.
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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. 1. "Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period." 2. "Every day's delay must be explained" does not mean that 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. 3. 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. 4. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact, he runs serious risk. 5. 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." 8. Here we would also like to refer the finding of the Apex Court in the case of N. Balakrishnan V. M. Krishnamurthy, AIR 1998 SC 3222. The Apex Court held as under:-
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"11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for laundering the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It 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 right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words 'sufficient cause' under section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain V. Kuntal Kumari, AIR 1969 SC 575 and State of West Bengal V. the Administrator, Howrah Municipality, AIR 1972 SC 749." 9. There is no doubt that if the Assessee demonstrates that the delay in filing appeal was due to valid mitigating circumstances such as medical condition then the appellate authority can condone delay and consider appeal on its merits. In a similar circumstances, the Hon’ble Jurisdictional High Court in the case of M/s Great
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Heights Developers LLP Vs Additional Commissioner Office of the CGST & Central Excise, Chennai [Writ Petition 1324 of 2024 dated 01.02.2024] allowed the Writ Petition and directed the Appellate Authority to dispose of the appeal on merits.
We have pursued the application/submission dated 01.12.2023, wherein medical reason has been given. Ld. CIT(A) clearly missed to look into the medical ground for considering delay. Therefore, Assessee demonstrates before us that the delay in filing appeal was due to valid mitigating circumstances such as medical condition of the assessee. Hence, we treat such reason as cogent and sufficient cause which cannot be termed as dilatory or frivolous.
In the light of the above discussions, considering to adopt pragmatic approach and with an intention to render substantial justice, we find that, there was sufficient cause for condoning the delay in the institution of appeal before the CIT(A) by the assessee hence we condone the delay. The CIT(A) ought to have condoned the delay keeping in view of the laws laid down by the Apex Court in the above cases cited and ratio laid down by the Hon'ble Madras High Court in the case of Areva T and D India Ltd., Vs. JCIT, [2006] 287 ITR 555 (Mad) and M/s Great Heights Developers LLP Vs Additional Commissioner Office of the CGST & Central Excise, Chennai [Writ Petition 1324 of 2024 dated 01.02.2024. Therefore, without expressing anything on the merit of the case, we incline to remit the file to the CIT(A) with a direction to decide the appeal on merit after providing reasonable opportunity of being heard to assessee.
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In the result, appeal filed by the assessee is allowed for statistical purpose.
Order pronounced in the open court on 24th day of June, 2024 at Chennai.
Sd/- Sd/- (मनोज कुमार अ�वाल) (मनु कुमार िग�र) (MANOJ KUMAR AGGARWAL) (MANU KUMAR GIRI) लेखा सद� / ACCOUNTANT MEMBER �ाियक सद� / JUDICIAL MEMBER चे�ई Chennai: िदनांक Dated :24-06-2024 KV आदेश क� ��त�ल�प अ�े�षत /Copy to : 1. अपीलाथ�/Appellant 2. ��थ�/Respondent 3. आयकरआयु�/CIT, Chennai 4. िवभागीय�ितिनिध/DR 5. गाड�फाईल/GF