KALPANA PRAKASH KALE,PUNE vs. ITO WARD 6(5), PUNE

Facts of the case, in brief, are that the assessee is an individual and has not filed her return of income for the year under consideration. On the basis of information that the assessee has purchased an immovable property valued at Rs.30 lakhs or more, a show cause notice was issued u/s 148A(b) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) by the jurisdictional Assessing Officer regarding escapement of income and to explain as to why notice u/s 148 of the Act should not be issued. However, there was no response from the side of the assessee for which the case of the assessee was reopened by the jurisdictional Assessing Officer by issue of notice u/s 148 of the Act on 02.04.2022. However, no return was filed in response to the same. The subsequent notice u/s 142(1) of the Act was also remained un-complied with. The Assessing Officer thereafter completed the assessment u/s 144 of the Act by making addition of Rs.98,45,021/- u/s 69 of the Act being unexplained investment in house property.

Since there was a delay of 54 days in filing of the appeal by the assessee, the Ld. CIT(A) / NFAC dismissed the appeal filed by the assessee.

Aggrieved with such order of the Ld. CIT(A) / NFAC, the assessee is in appeal before the Tribunal by raising the following grounds:

The Ld. Counsel for the assessee at the outset submitted that the property in question was purchased by her son Mr. Milind Prakash Kale, who is Non-Resident Indian, from his current salary income in USA. The assessee being a housewife and not being technically literate and does not know how to open e-mail sent by the department, could not file the appeal in time. She submitted that despite a condonation application filed by the assessee before the Ld. CIT(A) / NFAC explaining the reasons for such delay, the Ld. CIT(A) / NFAC in a very technical manner did not condone the delay of 54 days and treated the appeal as inadmissible being barred by limitation. She submitted that in the interest of justice, the matter may be restored to the file of the Ld. CIT(A) / NFAC with a direction to condone the delay and grant an opportunity to the assessee to substantiate her case by filing the requisite details.

The Ld. DR on the other hand has no serious objection to the condonation of the delay before the Ld. CIT(A) / NFAC considering the facts of the case.

We have heard the rival arguments made by both the sides and perused the orders of the Assessing Officer and the Ld. CIT(A) / NFAC. We find the Ld. CIT(A) in the instant case did not condone the delay of 54 days in filing of the appeal by the assessee and dismissed the appeal as inadmissible being barred by limitation. A perusal of the details filed before the Ld. CIT(A) / NFAC shows that the assessee is a housewife and not technically literate. It also emerges from the record that the property in question was purchased by the NRI son of the assessee jointly with the assessee. The funds are out of the income of the son of the assessee. Even though the reasons for such delay in not filing the appeal before the Ld. CIT(A) / NFAC was explained, we find the Ld. CIT(A) / NFAC relying on various decisions did not condone the delay of 54 days in filing of the appeal before him.

We find the Hon'ble Supreme Court in the case of Collector, Land Acquisition vs. Mst. Katiji & Ors. reported in 167 ITR 471 (SC) has held that 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. 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 condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

Respectfully following the decision of the Hon'ble Supreme Court cited (supra) and considering the fact that the delay in filing of the appeal by the assessee was not deliberate but a technical defect, we restore the issue to the file of the Ld. CIT(A) / NFAC with a direction to condone the delay in filing of the appeal and decide the issue on merit as per fact and law after providing due opportunity of being heard to the assessee. The assessee is also hereby directed to submit the requisite details before the Ld. CIT(A) / NFACE on the appointed date without seeking any adjournment under any pretext, failing which the Ld. CIT(A) / NFAC is at liberty to pass appropriate order as per law. We hold and direct accordingly. The grounds raised by the assessee are accordingly allowed for statistical purposes.

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