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Income Tax Appellate Tribunal, “A” BENCH: KOLKATA
Before: Shri Rajesh Kumar&Shri Pradip Kumar Choubey]
ORDER / आदेश Per Pradip Kumar Choubey, JM:
These are the appeals preferred by the assessee against the separate orders of the Ld. Commissioner of Income Tax (Appeals)-NFAC, Delhi (hereinafter referred to as the “Ld. CIT(A)”] dated 13.06.2024 for the AY 2020-21. is against the order passed u/s 143(3) of the Act whereas ITA no.1524/24 is against the order passed u/s 270A of the Act. In both the appeals, issues are common as the Ld. CIT(A)
The Ld. Counsel for the assessee challenges the impugned order there was submitting that the Ld. CIT(A) did wrong by not condoning the delay though the assessee has submitted sufficient reasons that the assessee being an individual salaried employee rendering services at the whim of the management of company travelling from pillar to post depending upon local representative hence the delay had been caused in filing the appeal. The Ld. Counsel further submits that the assessment order has also been passed behind the back of the assessee. Hence his prayer to restore the case of the assessee before the AO for fresh adjudication after hearing the assessee.
Contrary to that the Ld. D.R supports the impugned order.
We have gone through the order passed by the Ld. CIT(A) as well as the AO and find that the assessee being an individual had filed its return of income showing total income of Rs. 38,84,930/- for the AY 2020-21. The case of the assessee selected for scrutiny. Notices u/s 143(2) was issued to the assessee, the show cause notices have also been issued but there was no response from the side of the assessee before the AO as a result of which the AO computed the total taxable income as Rs. 61,83,156/- by adding variation in respect of exempt income, variation in respect of claim of loss, deduction u/s 80D and 80DD.
The said order has been challenged by the assessee before the Ld. CIT(A) wherein on account of inordinate delay of 336 days appeal of the assesse has been dismissed.
The above appeal has been preferred against the penalty proceeding passe by A.O and confirmed by the CIT(A). The CIT(A) has dismissed the appeal of the assessee as it wasfiled after delay of 158 days.
As we have already stated that in the submission of the Ld. Counsel of the assessee is that the assessee has been given an opportunity to place his case before the Ao as the order passed by the AO confirmed by the Ld. CIT(A) without adjudication on merit. The submission of the assessee is that the assessee is a salaried employee rendering services at the whim of the management of the company travelling from pillar to post depending upon the local representative for statutory compliance cannot be penalized for alleged so-called inordinate delay in filing the appeal in time reason for the latches and lapses of the interested counsel. But the Ld. CIT(A) has dismissed the contention of the assessee by saying that the assessee has not substantiated any documentary evidences in support of the sufficient cause of the delay. In this context, law is very clear that the case should be decided on merit and not on technical basis. The Hon’ble Supreme Court has held as under:
In this context, we have perused the several decisions of the Hon'ble Apex Court and find that in Shakuntala Devi Jain v. Kuntal Kumari [AIR 1969 SC 575], this Court reiterated the following classic statement from Krishna vs. Chathappan [1890 ILR 13 Mad 269]: "... Section 5 gives the courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words `sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant." 5.1. In N.Balakrishnan v. M.Krishnamurthy [1998 (7) SCC 123], this Court held: "It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider & 1524/Kol/2024 Assessment Years: 2020-21 Tirupati Nag the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court. The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice...... Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice.”
Keeping in view the facts of the case of the assessee and judicial decision of the Hon’ble Apex Court with respect to the condonation of delay, we are in this view that the assessee has been given an opportunity to place his case before the AO as the order passed by the AO is also behind the back of the assessee. Accordingly, the order of Ld. CIT(A) as well as AO are hereby set aside and the record of the assessee is restored to the file of AO to adjudicate the same afresh after hearing the assessee. The assessee is directed to place documentary evidences before the AO. In the result, both the appeals of the assessee are allowed for statistical purposes. Order is pronounced in the open court on 19th December, 2024
Sd/- Sd/- (Rajesh Kumar/राजेश कुमार) (Pradip Kumar Choubey /�द�प कुमार चौबे) Accountant Member/लेखा सद�य Judicial Member/�या�यक सद�य Dated: 19th December, 2024 SM, Sr. PS Copy of the order forwarded to: 1. Appellant- Tirupati Nag, Flat No. 1D, Arpit Apartment, Krishnapur Main Road, North 24 Parganas-700102 2. Respondent – ITO, Burdwan 3. Ld. CIT(A)-NFAC, Delhi 4. Ld. Pr. CIT- , Kolkata 5. DR, Kolkata Benches, Kolkata (sent through e-mail)