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

आदेश / O R D E R

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

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.

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Shri Ritesh Saxena, Indore. ITA No. 94/Ind/2024 - AY 2011-12

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under an erroneous impression that the assessee opted for Vivad Se Vishwas Scheme rendering assessee’s first-appeal as withdrawn and infructuous.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.

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Shri Ritesh Saxena, Indore. ITA No. 94/Ind/2024 - AY 2011-12

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.

Order pronounced in open court on 07.08.2024

Sd/- sd/- (VIJAY PAL RAO) (B.M. BIYANI) JUDICIAL MEMBER ACCOUNTANT MEMBER

Indore िदनांक /Dated : 07.08.2024 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

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