RITESH SAXENA,INDORE vs. ITO-2(5), BHOPAL, BHOPAL

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ITA 94/IND/2024Status: HeardITAT Indore07 August 2024AY 2011-12Bench: SHRI VIJAY PAL RAO (Judicial Member), SHRI B.M. BIYANI (Accountant Member)3 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal found that the delay in filing the appeal was due to a sufficient cause and condoned it. The Tribunal agreed with both parties that the first appeal was wrongly dismissed and should be decided on merit by the CIT(A).

What were the facts?

The assessee's first appeal was dismissed by the CIT(A) under the erroneous impression that the assessee had opted for the Vivad Se Vishwas Scheme. The assessee had actually opted for the scheme only for penalty matters, not for the appeal in question. The assessee made efforts to have the appeal re-instituted but was unsuccessful.

What were the issues?

Whether the delay in filing the appeal should be condoned and whether the first appeal was wrongly dismissed by the CIT(A) due to a misunderstanding of the Vivad Se Vishwas Scheme applicability.

Which sections of the Income-tax Act were involved?

Section 253(5),Section 271(1)(b),Section 271F

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Income Tax Appellate Tribunal, INDORE BENCH, INDORE

Before: SHRI VIJAY PAL RAO & SHRI B.M. BIYANI

For Appellant: Shri S.N.Agrawal, CA
For Respondent: Shri Ashish Porwal, Sr. DR
Hearing: 06.08.2024Pronounced: 07.08.2024

आदेश / O R D E R

Per B.M. Biyani, A.M.:

1.

Feeling aggrieved by appeal-order dated 23.09.2022 passed by learned Commissioner of Income-Tax (Appeals)-NFAC, Delhi [“CIT(A)”] which in turn arises out of assessment-order dated 19.12.2018 passed by learned ITO- 5(2), Bhopal [“AO”] u/s 144 of Income-tax Act, 1961 [“the Act”] for Assessment-Year [“AY”] 2011-12, the assessee has filed this appeal.

2.

The registry has informed that the present appeal is delayed by 437 days and therefore time-barred. Ld. AR for assessee drew our attention to Shri Ritesh Saxena, Indore.

the impugned order passed by CIT(A). Referring to same, Ld. AR showed that the CIT(A) dismissed assessee’s first appeal under an erroneous impression that the assessee opted for Vivad Se Vishwas Scheme rendering assessee’s first-appeal as withdrawn and infructuous. Ld. AR pointed out that the assessee opted for Vivad Se Viswas Scheme in respect of penalty matters u/s 271(1)(b) and 271F but not in the impugned matter before CIT(A). Then, Ld. AR carried us to Paper-Book to demonstrate various e-mails/ communications exchanged upto 01.01.2024 between assessee and samadhan (grievance cell) of Income-Department/CBDT for re-institution of appeal erroneously dismissed. But, however, even after a serious effort, the assessee’s first-appeal dismissed by impugned order was not re-instituted. Therefore, ultimately, the assessee had to file present appeal to ITAT on 02.02.2024 against the impugned order with a condonation-application supported by affidavit. Ld. AR very humbly submitted that there is no 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 as explained in the condonation-application. He prayed to condone the delay. Ld. DR for Revenue did not have any objection. We have considered the explanation advanced by assessee and in absence of any contrary fact or material on record, the assessee is found to have 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, 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.

Shri Ritesh Saxena, Indore.

3.

On merit of the case, Learned Representatives of both sides are ad idem that the first-appeal has been wrongly dismissed under erroneous impression that the assessee had opted for Vivad Se Viswas Scheme whereas the assessee has not opted. Therefore, the first-appeal is required to be decided by CIT(A) on merit. Learned Representatives of both sides agree that the matter should be restored to the file of CIT(A) for a proper adjudication. Accordingly, we restore first-appeal at the level of CIT(A) for a proper adjudication after giving necessary hearings to assessee.

4.

Resultantly, this appeal is allowed for statistical purpose.

Order pronounced in open court on 07.08.2024

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