GAUTAM SEN GUPTA,KOLKATA vs. ACIT, CIRCLE-XVI, KOLKATA, KOLKATA

The assessee in the present case is an individual, who filed his return of income for the year under consideration on 01.07.2008 declaring total income of Rs.20,32,100/-. Although the said return was initially accepted by the Assessing Officer, the assessment was reopened by him subsequently by issuing notice under section 148 on 23.09.2011. The said notice as well as the subsequent notices issued by the Assessing Officer under section 142(1), however, remained un-complied with by the assessee and the Assessing Officer, therefore, was left with no option but to complete the assessment ex parte to the best of his judgment under section 144/147 of the Act. In the assessment so completed vide an order ./2014 Assessment year: 2008-2009 Page 2 of 3 dated 20.07.2012, he made two additions of Rs.2,48,625/- and Rs.28,225/- to the total income of the assessee and assessed the income of the assessee for the year under consideration at Rs.23,08,950/-.

Against the order passed by the Assessing Officer under section 144/147, an appeal was preferred by the assessee before the ld. CIT(Appeals). There was, however, a delay of 128 days on the part of the assessee in filing the said appeal. In this regard, an application was filed by the assessee before the ld. CIT(Appeals) seeking condonation of the said delay on the ground that his Authorized Representative Shri Shamim Rahaman was not well during the relevant period. An affidavit of Shri Shamim Rahaman was also filed by the assessee in support along with a certificate from Doctor. On perusal of the said medical certificate filed by the assessee, the ld. CIT(Appeals) noted that the Authorized Representative of the assessee was mainly advised rest by the Doctor. According to him, the filing the appeal was not so heavy that a person advised some rest by the Doctor could not do the same. For this reason as well as some other reasons given by him, the ld. CIT(Appeals) refued to condone the delay of 128 days on the part of the assessee in filing his appeal and dismissed the same in limine. Aggrieved by the order of the ld. CIT(Appeals), the assessee has preferred this appeal before the Tribunal.

I have heard the arguments of both the sides and also perused the relevant material available on record. It is observed that the delay of 128 days in filing the appeal before the ld. CIT(Appeals) was sought to be condoned by the assessee on the ground that his Authorized Representative was not well during the relevant period. This reason given by the assessee was duly supported by an affidavit of the said Authorized Representative as well as the medical certificate. The ld.CIT(Appeals), however, did not find the reason given by the assessee to be a sufficient cause on the grounds given in his impugned order, which, in my opinion, are neither cogent nor convincing. It is well settled position of law that while considering the issue of condonation of delay, the appellate ./2014 Assessment year: 2008-2009 Page 3 of 3 authorities should construe the sufficient cause liberally taking into account the interest of substantial justice as well as the fact that no assessee is going to derive any benefit by filing his appeal belatedly. If I apply this legal position as well as the spirit propounded in the various judicial pronouncements by the Hon’ble Supreme Court to the facts of the assessee’s case, I find that there was a sufficient cause for the delay on the part of the assessee in filing his appeal before the ld. CIT(Appeals). I, therefore, condone the said delay and remit the case to the ld. CIT(Appeals) with a direction to him to dispose of the appeal of the assessee afresh on merit after giving the assessee proper and sufficient opportunity of being heard.