KAUSHALYA SINGHA,DARJEELING vs ITO, WARD - 1(4), SILIGURI

Income Tax Appellate Tribunal, KOLKATA ‘SMC’ BENCH, KOLKATA

Before: SRI RAJESH KUMAR & PRADIP KUMAR CHOUBEY

order

: July 24th, 2024 ORDER

Per Pradip Kumar Choubey, Judicial Member:

This appeal filed by the assessee pertaining to the Assessment Year (in short ‘AY’) 2017-18 is directed against the order passed u/s 250 of the Income Tax Act, 1961 (in short the ‘Act’) by ld. Commissioner of Income-tax (Appeals)- NFAC, Delhi [in short ld. ‘CIT(A)’] dated 05.02.2024 arising out of the assessment order framed u/s 147 read with Section 144 read with Section 144B of the Act dated 27.09.2021.

The brief facts of the case of the appellant are that the assessee being a retired Government employee deriving pension and he is engaged in trading I.T.A. No.: 611/KOL/2024 Assessment Year: 2017-18 Kaushalya Singha. of green tea leaves in the AY 2017-18. It is further alleged that the assessee purchased green tea leaves from small tea growers of the locality and sales the same to wholesale/bulk suppliers and purchases being made from village farmers are routinely made in cash. The assessee filed the return of income for the AY 2017-18 declaring total income of Rs. 3,11,260/-. The Assessing Officer (hereinafter referred to as ld. 'AO') in his assessment order considered the non-cash deposits of Rs. 1,70,844/- as unexplained money u/s 69A of the Act and Rs. 60,837/- as interest income tax at normal provisions. The ld. AO has passed the assessment order u/s 144 read with Section 147 of the Act whereas the AO has treated the entire cash deposit of Rs. 26,07,000/- and non-cash deposit of Rs. 1,70,844/-; total amounting to Rs. 27,77,844/- to be unexplained money and the AO has further made an addition of Rs. 60,837/- under the head ‘income from other sources’. The said order had been challenged by the assessee before the ld. CIT(A). Ld. CIT(A) has dismissed the appeal of the assessee as it has been filed after a delay of 661 days and further, opined that there was no sufficient cause to condone the delay. Being aggrieved and dissatisfied with the order, the present appeal has been filed. 2.1. The ld. Counsel for the assessee challenges the impugned order thereby submitting that the ld. CIT(A) was not justified in not condoning the delay in filing the appeal before him as sufficient cause has been shown by the assessee regarding the delay as the villagers are not convergent with the procedure and it took considerable time for the assessee to get hold of the Chartered Accountant and according to the ld. Counsel for the assessee delay was not intentional rather it was bona fide. His prayer is to give the assessee an opportunity to present his case before the ld. CIT(A) by condoning the delay. 3. On the contrary, ld. D/R supports the impugned order. 4. We have perused the order of the ld. CIT(A) and find that ld. CIT(A) dismissed the appeal on the ground that delay has not sufficiently been explained by the assessee. It admits of no doubt that there was no decision on merit rather appeal has been dismissed only on the limitation point.

I.T.A. No.: 611/KOL/2024 Assessment Year: 2017-18 Kaushalya Singha. 4.1. 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." 4.2. 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 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.” 4.3. In the present case, as it appears to us that the assessee is a retired Government employee deriving pension and as per the submission of the assessee, the assessee is a villager and he was not convergent with the income Page 3 of 4 I.T.A. No.: 611/KOL/2024 Assessment Year: 2017-18 Kaushalya Singha. tax procedures and to engage a good Chartered Accountant, a considerable time has been passed. Keeping in view the above decision as well as catena of decisions of Hon'ble Apex Court that the case should be decided on merit. We are of this view that assessee has been given an opportunity to submit his case before the ld. CIT(A). Accordingly, the delay is hereby condoned, the case is remanded back to the file of ld. CIT(A) by giving an opportunity to the assessee to submit his case. Ld. CIT(A) is directed to pass a fresh order after giving opportunity of hearing to the assessee. The impugned order of ld. CIT(A) is set aside.

In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open Court on 24th July, 2024. Sd/- Sd/- [Rajesh Kumar] [Pradip Kumar Choubey] Accountant Member Judicial Member Dated: 24.07.2024 Bidhan (P.S.) Copy of the order forwarded to:

1. 1. Kaushalya Singha, C/o. Subash Agarwal & Associates, Advocates, Siddha Gibson, 1, Gibson Lane, Suite - 213, 2nd Floor, Kolkata, West Bengal, 700069.

2. ITO, Ward-1(4), Siliguri. 3. CIT(A)-NFAC, Delhi. 4. CIT- 5. CIT(DR), Kolkata Benches, Kolkata.

KAUSHALYA SINGHA,DARJEELING vs. ITO, WARD - 1(4), SILIGURI