What did the Tribunal hold?

The Tribunal held that the CIT(A) took a hyper-technical view and should have condoned the entire 30-day delay, considering the family bereavement. The matter was restored to the CIT(A) for adjudication on merits.

The assessee's appeal before the CIT(A) was dismissed due to a delay in filing, with the CIT(A) only condoning 10 days of the 30-day delay. The assessee attributed the delay to a bereavement in the family.

What were the issues?

Whether the CIT(A) was justified in not condoning the entire delay in filing the appeal, and whether the reasons provided by the assessee constituted a sufficient cause.

Diwakar Vijay Pundir vs ACIT | ITAT Mumbai 2016

Income Tax Appellate Tribunal, MUMBAI BENCH “SMC”, MUMBAI

Before: SHRI G.S.PANNU

For Respondent: Ms. R.M.Madhavi

Hearing: 05/07/2016Pronounced: 05/07/2016

The captioned appeal filed by the assessee pertaining to assessment year 2009-10 is directed against an order passed by CIT(A)- 30, Mumbai dated 02/12/2013, which in turn arises out of an order passed by the Assessing Officer under section 143(3) of the Income Tax Act, 1961 (in short ‘the Act’) dated 19/12/2011.

At the time of hearing, it was seen that the notice issued to the assessee has come back unserved with the remark ‘unclaimed’. Thus, there was no appearance on behalf of the appellant assessee, while Ms. R.M.Madhavi appeared on behalf of the Revenue.

The substantive dispute in this appeal arises from the additions made to the returned income on account of unexplained investment towards purchase of flat of Rs.7,87,600/- and unexplained cash deposits of Rs.10,02,000/-. Both the additions were challenged in appeal before the CIT(A). The CIT(A) has not dealt with the issue on merit but has dismissed the appeal on the plea that the same was belated. The CIT(A) noticed that there was a delay. According to the CIT(A) out of the total delay of 30 days in filing of the appeal the delay of 20 days was not satisfactorily explained by the assessee and, therefore, he has dismissed the appeal. Apart therefrom, the CIT(A) has also noticed that assessee did not respond to the notices of hearing on three occasions and, therefore, he presumed that assessee is not interested to prosecute the appeal before him.

Before me, the assessee is in appeal by raising the aforestated Grounds of appeal. Ld. Departmental Representative has defended the action of the CIT(A). In the absence of the assessee, I proceed to dispose off the appeal ex-parte qua the appellant after hearing the Ld. Departmental Representative for the Revenue as per Rule 24 of the Income Tax (Appellate Tribunal)Rules,1963.

5. In my considered opinion, the CIT(A) has unjustly refused to condone the delay in filing of the appeal before him. Out of the total delay of 30 days, the CIT(A) found that the delay of 10 days could be condoned. Before the CIT(A), assessee asserted that his father had passed away on 24/1/2012 and on account of the same he could not 3 /MUM/2015 (Assessment Year : 2006-07) file appeal in time. Based on such reason the CIT(A) treated the delay of 10 days as explained, whereas the balance of 20 days was not found to be a sufficient cause. In my considered opinion, the CIT(A) has taken a rather hyper-technical view of the matter, especially considering that the delay is not of enormous number of days, and was caused on account of bereavement in the family of the assessee. In my view, the delay of 30 days in the present circumstances ought to have been condoned by the CIT(A). I hold so. In this view of the matter, I deem it fit and proper to restore the matter back to the file of CIT(A), who shall allow the assessee a reasonable opportunity of being heard and, thereafter, adjudicate the appeal on merits in accordance with law. Thus, appeal of the assessee is allowed for statistical purposes.

DIWAKAR VIJAY PUNDIR,MUMBAI vs. ASST CIT 19(3), MUMBAI

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