MUSTAFA ALI THROUGH GENERAL POWER OF ATTORNEY HOLDER, AUN ALI OTIAWALA,NEEMUCH vs. ITO, NEEMUCH

आदेश / O R D E R

Per B.M. Biyani:

These are three appeals filed by assessee. The ITA Nos. 536 & 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

Page 1 of 6

Mustafa Ali, Neemuch vs. ITO, Neemuch ITA Nos.536 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.

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 ITA Nos. 536 & 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

Page 2 of 6

Mustafa Ali, Neemuch vs. ITO, Neemuch ITA Nos.536 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

Page 3 of 6

Mustafa Ali, Neemuch vs. ITO, Neemuch ITA Nos.536 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.

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

Page 4 of 6

Mustafa Ali, Neemuch vs. ITO, Neemuch ITA Nos.536 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.

Page 5 of 6

Mustafa Ali, Neemuch vs. ITO, Neemuch ITA Nos.536 to 538/Ind/2023 AYs. 2011-12, 2012-13 & 2012-13

Order pronounced in open court on 03.04.2024

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

Indore िदनांक / Dated : 03.04.2024 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

Page 6 of 6