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Income Tax Appellate Tribunal, “C”, BENCH KOLKATA
Before: SHRI N.V.VASUDEVAN, JM & DR. A.L.SAINI, AM
Per Dr. Arjun Lal Saini, AM: The captioned appeal filed by the assessee pertaining to the Assessment Year 2007-2008 is directed against the order passed by ld. CIT(A)-XXXIII, Kolkata in Appeal No.78/CIT(A)-XXXIII/ACIT,Circle- 52,Kol/10-11, dated 21.03.2013, which in turn arises out of an order passed by the Assessing Officer (AO) Under Section 143(3) of the Income Tax Act 1961, (hereinafter referred to as the ‘Act’), dated 31.12.2009. 2. The said captioned appeal filed by the Assessee is time barred by 10 days. The Assessee filed the petition for condonation of delay and expressed the reasons of delay. After verification of petition we found that there was a reasonable cause for 10 days delay in filing the appeal. Even ld DR did not object to condone the delay. Therefore, we condone the delay and admit the appeal for hearing. 3. Brief facts of the case qua the assessee are that the assessee filed its return of income for AY.2007-08 on 31.10.2007 showing a total income
2 ITA No.2279/13 Shri Debashish Roy Chowdhury of Rs.33,93,711/-. The return was processed u/s.143(1) of the Act and
subsequently assessee’s case was selected for scrutiny U/s.143(3) and
the AO completed the assessment by making various additions.
Aggrieved from the order of AO, the assessee filed an appeal
before the ld. CIT(A), who has dismissed the appeal of the assessee
because the assessee has not filed appropriate documents to condone
the delay in filing the appeal. Ld. CIT(A) observed that there was a delay
in filing the appeal about one year and the assessee has not explained
satisfactorily the reasons for delay in filing the appeal. Therefore, the ld.
CIT(A) did not condone the delay and dismissed the appeal as not being
admitted observing the followings :-
I have considered facts of the case. As per provisions of section 249(2) of I.T.Act, 1961, an appeal against assessment order is required to be filed within 30 days of service of the demand notice. Sub-section (3) of that section provides that Commissioner (Appeal) may admit an appeal after expiration of the said period if he satisfied that the appellant had sufficient cause for not presenting the appeal within that period. While it is true, that the power of condoning delay should be exercised in a liberal manner, for that the basic condition, that sufficient cause for delay should be satisfactorily explained, has to be met. The period for filing an appeal cannot be extended simply because the appellant's case is hard and calls for sympathy or merely out of benevolence to the party seeking relief. In condoning delay the appellate authority should be satisfied that there had been due diligence on the part of appellant and the latter was not guilty of negligence whatsoever. Reference in the matter can be drawn to the decision in the case of Pt.Krishna Rao D Phalke vs. Trimbak AI.R 1938 Nag 156 and Baldeo Lal Roy vs. State of Bihar (1960) 11 STC 104 (Pat.) It has also been held in a number of cases that the appellant has to show sufficient cause for not filing appeal on the last date of limitation and must explain the delay, day after day, till the actual filing. In other words, the whole of delay must be explained. Some of such cases are Ramlal vs. Rewa Coalfields Ltd. AIR 1962 SC 361, Sitaram Ramcharan vs. M.N.Nagarshana AIR 1960 SC 260, Soorajmull Nagarmal vs. Golden Fibre & Products AIR 1969 Cal. 381, Bhaktipada Majhi vs. SOC AIR 1971 Cal 204. As discussed earlier, in the appellant's case, while his illness explains part of delay, the
3 ITA No.2279/13 Shri Debashish Roy Chowdhury inordinately long period before his hospitalization and after his discharge has not been justified. 4. Considering these facts, I am of the view that the appellant has not been able to establish sufficient cause for delay of about one year in filing of appeal. Therefore, the delay is not being condoned and the appeal is not being admitted. 5. Not being satisfied with the order of ld. CIT(A), the assessee is in
further appeal before us and has taken the following grounds of appeal :-
For that the appellate authority without considering the condonation petition disallowed the appeal which is the violation of natural justice. 2. For that the addition of back year liability related to the Sundry Creditors of Rs.15, 04,845/- is bad in law. The liability is related to three years back. Without adding the liability in the particular year, the addition in this year is arbitrary in manner. 3. For that the application of G. P. @ 39.12% on undisclosed purchase of Rs.2, 61,940/- is bad in law. 4. For that the addition of excess purchase of (Rs. 16, 49. 075.00 - Rs. 9, 79, 493.00) = Rs.669.582/- is not tenable in the eye of law. 5. For that Rs.49, 920/- was added as unreconciled purchase from Leather Craft (India) without considering the explanation of the assessee is arbitrary. This Rs.49,920/- was related to the damaged goods. Hence, the assessee did not take it in his purchase. 6. Unexplained expenditure in purchase from "M/s. Pentek International" of Rs.68, 841/- is unjustified & bad in law. 7. Unexplained expenditure in purchase from "M/s. Rupa Enterprise" of Rs. 43,200/- is bad in law. 8. For that the appellant seeks kind permission to raise new contentions and grounds before the disposal of the appeal petition.”
Ld. AR for the assessee has submitted before us that the ld. CIT(A)
did not consider the request of the assessee for condonation of delay in
filing the appeal and he dismissed the appeal without hearing on merits,
4 ITA No.2279/13 Shri Debashish Roy Chowdhury which is in violation of natural justice. Ld. AR for the assessee has
submitted before us that assessee was suffering from severe
compression fracture of lumber vertebra and he could not walk and has to
be bedridden for a long time at least 4 months. In addition to this, there is
another certificate from the doctor stating that the assessee was suffering
from restless & chest pain due to hypertension & recurrent attach of low
back pain due to severe injury. Because of the prolonged disease the
assessee could not file the appeal before the CIT(A) and he could not
approach the Advocates and CAs also. In addition to this, he took three
months more to recover from his illness. This way, the entire one year
delay in filing the appeal has been satisfactorily explained before the
CIT(A). However, the counsel who appeared before the ld. CIT(A) could
not produce the medical certificate of the doctor which the assessee
obtained later on.
On the other hand, ld. DR for the revenue has primarily reiterated
the stand taken by the ld. CIT(A) but even agreed to send the matter back
to the file of CIT(A) for readjudication as the rights and duties of the
assessee has not been adjudicated by the ld. CIT(A).
Having heard the rival submissions, perused the material on record,
we are of the view that there is merit in the submissions of the assessee,
as the proposition canvassed by ld. AR for the assessee are supported by
the facts narrated by him above and the case laws cited by him above. As
Ld. AR for the assessee has pointed out that assessee has been suffering
from illness since last one year and obtained the certificates from the
5 ITA No.2279/13 Shri Debashish Roy Chowdhury doctor and the period of eight months has been explained properly and
thereafter he took three months time to recover fully from the illness,
therefore, he could not approach the Advocate/CA to file the appeal
before ld. CIT(A). Ld. AR for the assessee has explained the reasons of
delay in filing the appeal before ld. CIT(A) even the ld. DR for the revenue
has also agreed that the assessee has explained the reasons of delay in
filing the appeal before the ld. CIT(A) in a satisfactorily manner. Therefore,
considering the principle of natural justice, we are of the view to remit the
case back to the file of ld. CIT(A) with the direction to readjudicate the
issue on merits after giving an appropriate opportunity of being heard to
the assessee.
In the result, the appeal filed by the assessee is allowed for
statistical purposes.
Order pronounced in the open court on this 07/03/2017.
Sd/- Sd/- (N.V.VASUDEVAN) (DR. A.L.SAINI) �या�यक सद�य / JUDICIAL MEMBER लेखा सद�य / ACCOUNTANT MEMBER कोलकाता /Kolkata; �दनांक Dated 07/03/2017 �काश �म�ा/Prakash Mishra,Sr.PS. आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant-Shri Debashish Roy Chowdhury 2. ��यथ� / The Respondent.- ACIT, Circle-52/Kolkata 3. आयकर आयु�त(अपील) / The CIT(A), Kolkata. 4. आयकर आयु�त / CIT �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, कोलकाता / DR, ITAT, Kolkata 5. 6. गाड� फाईल / Guard file. आदेशानुसार/ स�या�पत ��त //True Copy// BY ORDER,
सहायक पंजीकार (Asstt. Registrar) आयकर अपील�य अ�धकरण, कोलकाता / ITAT, Kolkata