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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:
These are three appeals filed by assessee. The & 537/Ind/2023 challenge two separate appeal-orders, both dated 26.10.2023 and passed by learned Commissioner of Income-tax (Appeals), N.F.A.C., Delhi [“CIT(A)”] which in turn arise out of respective assessment- orders dated 30.11.2018 passed by I.T.O., Neemuch [“AO”] u/s 144/147 of Income-tax Act, 1961 [“the Act”] for Assessment-Years [“AY”] 2011-12 & 2012-13. The ITA No. 538/Ind/2023 challenges appeal-order dated
Mustafa Ali, Neemuch vs. ITO, Neemuch to 538/Ind/2023 AYs. 2011-12, 2012-13 & 2012-13 06.11.2023 passed by learned CIT(A) which in turn arises out of penalty- order dated 22.05.2019 passed by AO u/s 271(1)(c) of the Act. As the underlying facts and issues are identical/inter-related, these appeals are being disposed of by this common order for the sake of convenience, brevity and clarity.
These are the second-appeals filed by assessee before this tribunal against the impugned orders of first-appeals passed by CIT(A). During hearing, it emerged that the first-appeals filed by assessee before CIT(A) were delayed by 320 days and the CIT(A) has dismissed the first-appeals involved in & 537/Ind/2023 without admission by rejecting assessee’s request for condonation of delay. Further, the CIT(A) has dismissed first-appeal involved in ITA Nos. 538/Ind/2023 for non-prosecution by assessee but without discussing delay part. In essence, therefore, the CIT(A) has not condoned delay in all three matters. Ld. AR for assessee submitted that there was a sufficient cause for delay in filing first-appeals before CIT(A) which the assessee duly explained to CIT(A) by means of condonation-applications dated 17.08.2020 duly supported by affidavits of assessee. But the CIT(A) has wrongly mentioned in Para 5.3 of impugned orders “However, the appellant did not furnish any evidence in support of his submission for condonation of delay.
Neither any affidavit is filed.” Ld. AR submitted that the true fact is such that the assessee filed affidavits to CIT(A), copy of those affidavits are also filed to the Bench after hearing and served directly by assessee upon Ld. DR
Mustafa Ali, Neemuch vs. ITO, Neemuch to 538/Ind/2023 AYs. 2011-12, 2012-13 & 2012-13 representing the revenue. So far as the reason of delay is concerned, Ld. AR submitted that the assessee has duly explained the same to CIT(A) in condonation-application as well as affidavits filed to CIT(A) according to which the assessee was aged 62 years and a non-resident staying in UAE; that the assessee is not having any income taxable in India but the AO has still assessed hefty income in the assessments framed u/s 144/147 of the Act; that the assessee was not having any knowledge of Indian Tax Laws; that the assessee handed over papers to Shri O.P. Singhal, a counsel from Neemuch, for doing the needful but the counsel did not take any action.
Thereafter, the assessee consulted another advocate and under his consultation, filed first-appeals to CIT(A). Therefore, the delay in filing first- appeals had occurred due to the mistake of counsel. Ld. AR submitted that there is a ‘sufficient cause’ due to which delay had occurred but otherwise there was no deliberate lethargy, negligence, mala fide intention or ulterior motive of assessee in making delay and the assessee did not stand to derive any benefit because of delay. Ld. AR emphasised that the assessee was neither in India nor aware of Indian Tax Laws. Ld. AR submitted that the assessee submitted all these factual aspects to CIT(A) in condonation- applications and affidavits but the CIT(A) has not only made a wrong finding that no affidavit was filed but also injudiciously rejected assessee’s fair and honest submission. Ld. AR prayed the Bench to take a judicious view in the matter and condone the delay so that multiple proceedings could be avoided. Ld. DR for Revenue left the matter to the wisdom of Bench. We
Mustafa Ali, Neemuch vs. ITO, Neemuch to 538/Ind/2023 AYs. 2011-12, 2012-13 & 2012-13 have considered the explanation advanced by assessee and in absence of any contrary fact or material on record or brought before us, the assessee is found to have a ‘sufficient cause’ for delay in filing first-appeals before CIT(A). We find that section 249(3) empowers the CIT(A) to admit an appeal after expiry of prescribed time, if there is a sufficient cause for not presenting appeal within prescribed time. Similarly, the 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 landmark decision 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. Further, the judicial forums have accepted the counsel’s lapse as a ‘sufficient cause’ for condonation of delay. Thus, taking into account the legal provisions, the decision of Hon’ble Supreme Court, the facts cited in affidavits filed to CIT(A) and the prayer made by Ld. AR for assessee which is not opposed by Ld. DR for revenue, we take a judicious view and condone the delay occurred at the stage of filing first-appeals before CIT(A). Consequently, these matters are proceeded for adjudication on merit.
Ld. AR then submitted that the AO has passed assessment-orders u/s 147 / 144 of the Act because of non-compliances of notices sent by AO. But the assessee was a non-resident staying in UAE and not aware of the notices
Mustafa Ali, Neemuch vs. ITO, Neemuch to 538/Ind/2023 AYs. 2011-12, 2012-13 & 2012-13 sent by AO. Therefore, the assessee could not make compliances before AO.
Ld. AR went on submitting that the assessee is not having any income taxable in India but the AO has assessed hefty incomes while framing assessments u/s 147/144. Ld. AR asserted that, if an opportunity is given, the assessee is ready to represent his cases before AO to enable the AO to make proper adjudication in accordance with the provisions of law.
Therefore, the matter may be remanded to the file of AO for a proper adjudication on merit. Ld. DR would not have any objection to the prayer of Ld. AR but makes a request to direct the assessee to represent his cases before AO and do not seek unnecessary adjournments. Having regard to these submissions and also to the principle of natural justice and fair play, we deem it fit to remand these matters to the file of AO for a proper adjudication on merit after giving opportunity of hearing to the assessee, uninfluenced by his earlier orders. The assessee is also directed to stay vigilant and extend full co-operation to AO failing which the AO shall be entitled to pass ex-parte orders in accordance with law. We order accordingly.
Mustafa Ali, Neemuch vs. ITO, Neemuch to 538/Ind/2023 AYs. 2011-12, 2012-13 & 2012-13
Resultantly, all these appeals are allowed for statistical purposes.
Order pronounced in open court on 03.04.2024