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Income Tax Appellate Tribunal, “ SMC ” BENCH, AHMEDABAD
Before: SHRI MAHAVIR PRASAD & SHRI WASEEM AHMED
आदेश / O R D E R
PER WASEEM AHMED, ACCOUNTANT MEMBER:
This is an appeal filed by the assessee against the order of the ld. Commissioner of Income Tax (Appeals)-5, Ahmedabad, dated 17.12.2015 for the Assessment Year (AY) 2010-11.
At the outset, we note that the ld. CIT(A) has dismissed the appeal filed by the assessee on the ground that it was filed late and the assessee failed to explain the delay in filing the appeal with reasonable cause. The relevant extract of the ld. CIT(A) order is reproduced as under:
-2 - “Decision: 3. In the aforesaid case, the assessment order u/s. 143(3) of the I.T. Act has been passed by the A.O. on 10.01.2013 determining the total income at Rs.22,76,150/-. However, the appellant has filed the appeal on 03.03.2014 which is beyond the time limit as per the provisions of Section 249 of the I.T. Act. As per the Form No.35, the date of service as per the appellant was 10.01.2013. Even though the date of service is treated as 10.01.2013, the appeal should have been filed within 30 days from the date of service i.e. by 11.02.2013 but the appeal has been filed with the delay of almost 12 months. For making such a delay the appellant has filed a letter dtd. 25.02.2014 alongwith appeal memo. The relevant portion of the same is reproduced as under:-
"This has reference to the assessment order for the A. Y. 2010-11 passed by the Income-tax Officer ward 11(4) dated 10,01.2013 which was served at my office on 15.01.20I3 for which the appeal is being filed right now with condonation application. In this Dinner I request your goodself to kindly condone the delay as I was having family problem and nephew was looking after my business along with my husband. However they left the business without any intimation and I along with my husband had to rush to malegoan my native place as there was some family disputes and also death of one of my husband’s close relatives. I stayed there for more than 6 months and therefore could not file the appeal on time. Further we had also left the office premises at 150 New Cloth market and there was only a peon there who also did not inform about the receipt of the order. It is therefore stated that the circumstances were such that 1 could not engage a council and file the appeal of time.
I therefore request your goodself to kindly condone my delay of around 6 months and oblige.
3.1. The appeal is tiled late by 12 months. The reasons as contended could not be the reasonable cause in submission of the appeal for such an inordinate delay. No valid reason was shown by the appellant for the delay of 12 months. Delay in filing the appeal can be condoned if there is a reasonable and sufficient cause which prevented the assessee to file the appeal within the stipulated time. In the instant case, the appellant failed to show
-3 - any sufficient reason which has prevented it to file the appeal within stipulated time.
3.2. The appellant has taken the plea for the delay on the above reason is not verifiable from the records in absence of any evidences submitted alongwith the appeal and during appellate proceedings. Therefore, the delay made in filing the appeal does not deserve to be condoned and hence appellant's request for condonation is not entertained and rejected. In this regard the decision of the Hon’ble Mumbai Tribunal in the case of Prashant Projects Ltd. vs. DC1T (2013) 37 taxmann.com 137 is significant which is in favour of the revenue holding that by adopting a liberal view in condoning delay is one of the guiding principles in the realm of belated appeals, but liberal approach cannot be equated with a license to file appeals at will-disregarding the time-limits fixed by the Statutes;
The behavior of the assessee could be termed as personified inaction and negligence which would not constitute reasonable cause.
Further, Hon'ble Apex Court in the case of Vedabai Alias Vaijayanatabai Baburao Patil Vs. Shantararn Baburao Patil, 253 ITR 798, it was held as follows;- "In exercising discretion under section 5 of the limitation Act, the Court should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration may arised and such case deserves a liberal approach. " Further, ITAT, Chennai in the case of JCIT vs. Tractors & Farm Equipments Ltd. it was held as under:- "The delay cannot be condoned simply because the appellant's case is hard and calls for sympathy or merely out of benevolence to the party' seeking relief. In granting
-4 - the indulgence and condoning the delay it must be proved beyond the shadow of doubt that the appellant was diligent and was not guilty of negligence whatsoever. The sufficient cause within the contemplation of the limitation provision must be a cause which is beyond the control of the party invoking the aid of the provisions. The Hon'ble Supreme Court in the case of Ramlal v. Rewa Coalfields Ltd. AIR 1962 SC 361 has held that the casue for the delay in filing the appeal which by due care and attention could have been avoid cannot be a sufficient cause within the meaning of the limitation provision. Where no negligence, nor inaction, or want of bona fides can be imputed To the appellant a liberal construction of the provisions has to be made in order to advance substantial justice. Seekers of justice must come with clear hands. " 3.3. In view of the above discussion and decisions, the request for condonation of delay is liable to be rejected. Accordingly, the appeal of the appellant is not maintainable in view of the provisions of Section 249(2) of the I.T. Act and hence the appeal is dismissed.”
Being aggrieved by the order of ld. CIT(A) assessee is in appeal before us.
The ld. AR before us submitted that the appeal was not filed by the assessee within the time limit as specified u/s 249 of the Act due to some unavoidable reasons. The ld. AR in support of assessee’s claim filed the affidavit of the nephew of the assessee who was associated with the assessee which reads as under:
Affidavit I Yogesh Somani, B.com, S/o Murlidhar, aged 29, resident of 9, Nalanda Apartment, Vardhmannagar, Malegaon Dt. Nasik do hereby solemnly affirms as under:
-5 - 1. That I know Smt. Manjudevi Somani, as she is my aunty. 2. That my aunty was diagnosed as a cancer patient and was operated to remove the tumor. My aunty Smt. Manjudevi Somani Does not have children and my uncle had to take all care of her during that period of crisis, so my aunty and uncle had called me to look after the business. Since then I was working for my aunty Smt. Manjudevi Somani and looking after her all business and business related activity. I was also looking income tax related matters of Smt. Manjudevi Somani. 3. That after the operation, chemotherapy and radiotherapy, my aunty and uncle had gone to our native Bikaner and stated to live there. Thereafter, they were making only casual visits to Ahmedabad. 4. That during the year of 2011, some sudden and serious kind of family dispute had occurred between us and I had immediately closed to look after the business and all other business related activities of Smt. Manjudevi Somani and left her house as well as from Ahmedabad. 5. That thereafter my aunty had closed all her business activities. 6. That our relations had been worsen to that extent that we had not had even talking terms between us. 7. That I was to file appeal against the Assessment order made by I.T.O. u/s 143(3) and penalty order u/s 271(1)(c), and only 1 was aware about that fact. Smt Manjudevi Somani was not even aware that any assessment was made under section 143(3) and additions were made and even penalty order was passed. 1 had that assessment order and penalty order with me and was to file appeal against those orders. 8. That Because of that sudden unpleasant atmosphere in family and my sudden depart from the Ahmedabad, left everything pending, including the appeal against the assessment order u/s 143(3) and penalty order u/s 271(1)(c) of the I.T.Act, to be filed in the office of Commissioner of Income Tax Appeals. 9. That during the year of 2013,1 also assured my uncle to take care of ongoing assessment proceeding and appeal filing matter as I had looked after all the business transaction of that period i.e. financial year 2009-10. 10. That my father had strictly denied me to do any kind of help in any matter of my aunty and uncle. 11. That due to that unfortunate dispute in the family, I failed to file the appeal before CIT Appeals within the stipulated time and also didn't tell Smt Manjudevi Sornani about that assessment order and penalty order which had with me.
-6 - 12. I confirm that there was no delay on part of Smt Manjudevi Sornanj and the delay in appeal filing had occurred due to oversight of me because of family dispute. I state that whatever stated above is true and correct to the best of nv knowledge and belief.”
The ld. AR further filed a medical certificate issued by the medical superintendent of GMERS General Hospital, Gandhinagar dated 20.06.2018 “No./GHG/Certi./ /18 Office of the Medical Superintendent G.M.E.R.S. General Hospital, Gandhinagar. Date : 20/06/2018 No—12 CERTIFICATE This is to certify that patient Mr./Kum./Smt./ Manjudevi Somani age 54 years, was suffering from left side breast carcinoma. She was operated for complete mastectamy 10 years before. Not for M.L.C. or Court Cases
Advised by: Dr. Shashi Mundhra Medical Superintendent Assistant Professor G.M.E.R.S. General Hospital Medicine Department Gandhinagar MRD No: GNR/18/00186260”
In view of above, the ld. AR before us prayed to direct the ld. CIT(A) to condone the delay and decide the issue afresh on merit in accordance with the provision of law.
-7 - 5. On the other hand, ld. DR after considering the argument of the ld. Counsel of the assessee raised no objections if the direction is given to ld. CIT(A) for the condonation of the delay. However, the ld. DR left the issue at the discretion of the Bench.
We have heard the rival contentions and perused the materials available on record. At this juncture, we find important to reproduce the relevant extract of provision of Section 249 of the Act which reads as under: “(2) The appeal shall be presented within thirty days of the following date, that is to say,— [(a) where the appeal is under section 248, the date of payment of the tax, or] (b) where the appeal relates to any assessment or penalty, the date of service of the notice of demand relating to the assessment or penalty: [Provided that, where an application has been made under section 146 for reopening an assessment, the period from the date on which the application is made to the date on which the order passed on the application is served on the assessee shall be excluded, [or]] The following second proviso shall be inserted after the existing proviso in clause (b) of sub-section (2) of section 249 by the Finance Act, 2016, w.e.f. 1-4-2017 : Provided further that where an application has been made under sub- section (1) of section 270AA, the period beginning from the date on which the application is made, to the date on which the order rejecting the application is served on the assessee, shall be excluded, or (c) in any other case, the date on which intimation of the order sought to be appealed against is served. [(2A) Notwithstanding anything contained in sub-section (2), where an order has been made under section 201 on or after the 1st day of October, 1998 but before the 1st day of June, 2000 and the assessee in default has not presented any appeal within the time specified in that sub-section, he may present such appeal before the 1st day of July, 2000.]
-8 - (3) The [***] [Commissioner (Appeals)] may admit an appeal after the expiration of the said period if he is satisfied that the appellant had sufficient cause for not presenting it within that period.”
A plain reading of the above provision reveals that the delay in filing the appeal can be condoned if the assessee is prevented by sufficient cause in filing the appeal before the ld. CIT(A). Now considering the submission and the medical problems of the assessee, we are of the view that there was sufficient cause which prevented the assessee to file the appeal well in time before the ld. CIT-A.
6.1 We also find support and guidance from the judgment of Hon’ble Supreme Court in the case of Collector Land Acquisition vs Mst. Katiji & Ors reported in 1987 AIR 1353 wherein it was held as under:
“1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is con- doned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
-9 - 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.”
6.2 After considering the facts in totality, we are inclined to direct the ld. CIT(A) to condone the delay in filing the appeal by the assessee and adjudicate the issue afresh on merit after giving reasonable opportunity to the assessee.
6.3 The assessee is at her liberty to file necessary evidence in support of her contention. It is needless to mention that the assessee shall co- operate during the appellate proceedings before the ld. CIT(A).
In view of above, the ground of appeal of the assessee is allowed for statistical purposes.
In the result, appeal of the assessee is allowed for statistical purposes. This Order pronounced in Open Court on 02/11/2018
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आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent. 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त(अपील) / The CIT(A)-5, Ahmedabad. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, अहमदाबाद / DR, ITAT, Ahmedabad. 5. 6. गाड� फाईल / Guard file. आदेशानुसार/BY ORDER, स�या�पत ��त //True Copy// उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील�य अ�धकरण, अहमदाबाद / ITAT, Ahmedabad 1. Date of dictation 17/10/2018 (dictation pages 3 ) 2. Date on which the typed draft is placed before the Dictating Member 01/11/2018 3. Other Member… 4. Date on which the approved draft comes to the Sr.P.S./P.S 02/11/2018 5. Date on which the fair order is placed before the Dictating Member for pronouncement… 6. Date on which the fair order comes back to the Sr.P.S./P.S……. 7. Date on which the file goes to the Bench Clerk………………… 8. Date on which the file goes to the Head Clerk…………………………………... 9. The date on which the file goes to the Assistant Registrar for signature on the order…………………….. 10. Date of Despatch of the Order………………