A B CAPITAL,KOLKATA vs. A.C.I.T., CIRCLE - 32, , KOLKATA

This appeal was delayed in filing by 262 days for which the Ld.AR has filed a petition for condoning the said delay, running into several pages. It is seen that the Ld. AR has relied on several authorities to submit that the grounds of delay in filing the appeal were justified and in the interest of substantive justice, this appeal should be admitted for adjudication. For the sake of reference, the first two pages of the petition are extracted below:

The Assessee did not received any sms/email regarding the appellate order being passed. The assessee received a call from the assessing officer's office for collection of demand in the Last week of July 2024. The assessee informed the assessing officer that the appeal was pending and stay petition was also filed. The assessing officer then informed the assessee that the assessee's appeal was already dismissed.

The assessee immediately notified their Counsel regarding the whole scenario. The Counsel of the assessee then took immediate steps and the assessee is now filing this by filing appropriate condonation petition.

It is submitted that considering the above facts and circumstances of the case the assessee humbly prays that the delay in filing of appeal may be condoned considering the above circumstances.

It is humbly submitted that the delay of 26. days in filing of the appeal was not due to any malafide intention or negligence on our part but was due to the above said fact, thus the delay was not intentional. It is therefore requested that the delay in filing of the appeal be condoned.

It is well settled in law that the delay may be condoned in cases where sufficient cause is explained for the delay in filing of the appeal. In support of the same we are relying on the following decisions: (a) in the case of Collector, Land Acquisition v. Mst. Kati Ji 1987 (13) ALR 306, Hon'ble Supreme Court held as follows: "The Legislature has conferred the power to condone delay by enacting section 5 of the Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression 'sufficient cause' employed by the Legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which sub serves the ends of justice that being the life-purpose of the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. Any such a liberal approach is adopted on principle as it is realized that:

It is seen that the Ld. AO vide order dated 18.12.2019 made three additions as under:

Further aggrieved with this action, the assessee has approached the ITAT through following grounds of appeal:

For that in the facts and circumstances of the case the Ld. CIT(A), NFAC was wrong and unjustified in not cancelling the assessment order passed u/s.143(3) dtd.18.12.2019 as the assessment order did not contain the DIN and even Intimation letter dtd. 18.12.2019 for order u/s.143(3)/147 did not contain the reasons for not having DIN as per guidelines issued by CBDT vide Circular No. 19/2019 dtd. 14.08.2019.

For that in the facts and circumstances of the case the Ld. CIT(A), NFAC erred in passing the appellate order dated 05/10/2023 on ex-parte basis. The Ld.

For that in the facts and circumstance of the case Ld. Commissioner of Income Tax Appeals erred in upholding and confirming the addition of Rs.68,02,808 being interest expenses/Finance charges claimed by the assessee at the time of filing of return. The addition is not called for hence the same be deleted. . For that in the facts and circumstance of the case Ld. Commissioner of Income Tax Appeals erred in upholding and confirming the addition of Rs.9,89,687 on account of payment of interest on delayed payment of TDS/ESI/PF. The addition is not called for hence the same be deleted.

For that in the facts and circumstance of the case Ld. Commissioner of Income Tax Appeals erred in upholding and confirming the addition of Rs.8,21,48,336 on account of other liability due to M/s Parton Commercial Pvt Ltd. The addition is not called for hence the same be deleted.

For that in the facts and circumstances of the case the Learned Commissioner of Income Tax Appeals erred in upholding that the material based on which the Ld Assessment Officer passed the assessment order are collected behind the back of the assessee and which were not provided during the course of assessment proceeding, thus material should be excluded/ignored for the purpose of this case.

For that in the facts and circumstances of the case the Learned Commissioner of Income Tax Appeals erred in upholding that the statement of third parties on which the Ld Assessment officer relied during the course of assessment proceeding were not subjected to cross examination for the assessee, thus the third party statement relied upon should be excluded/ignored for the purpose of this case.

For that the assessment order passed was without jurisdiction and hence the Ld CIT(A) erred in confirming the assessment order. The assessment order was bad in law and should be quashed.

For that the facts and circumstances of the case the notice u/s 143(2) of the Income Tax Act 1961 was without jurisdiction and bad in law and hence the entire assessment order is bad in law and the same should be quashed.

The appellant craves leave to produce additional evidences in terms of Rule 29 of the Income Tax (Appellate Tribunal) Rules 1963.

For that the facts and circumstances of the case the interest computed u/s 234 A/B/C/D of the IT Act 1961 is over charged and wrongly calculated and or is not applicable to the assessee case hence the interest be deleted and or correctly computed.

The appellant craves leave to press new, additional grounds of appeal or modify, withdraw any of the above grounds at the time of hearing of the appeal.” 4.1 Right at the outset, the Ld. Authorised Representative pleaded that there was some problem due to which the emails issued fixing date for AB Capital hearing could not be responded too. In fact, he pointed out the reasons for delay in filing of this appeal and stated that due to a communication gap the assessee could not present his case before the Ld. CIT(A). He prayed that the matter should be remanded back to the file of the Ld. CIT(A) so that the assessee has a chance to make the presentation before him.

We have considered the averments of Ld. DR/AR and also perused the impugned order. It is clear that the Ld. CIT(A) proceeded ahead in confirming the additions made by the Ld.AO on the ground that there was no way in which he could have been persuaded otherwise. Accordingly, in all fairness the assessee deserves a second chance to present the facts before the Ld. CIT(A) and for this reason, we remand this matter back to the file of Ld. CIT(A). It would be expected that the assessee would be vigilant about opportunities being made available to him for presenting the facts.

In the result, the appeal filed by the assessee is allowed for statistical purposes.