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Income Tax Appellate Tribunal, PUNE BENCH “SMC”, PUNE
Before: SHRI INTURI RAMA RAO & SHRI VINAY BHAMORE
आदेश / ORDER
PER INTURI RAMA RAO, AM:
This is an appeal filed by the assessee directed against the ex parte order of the National Faceless Appeal Centre, Delhi [‘NFAC’] dated 17.11.2023 for the assessment year 2017-18.
At the outset, we find the appeal is time barred by 109 days in filing the appeal before the Tribunal. The assessee had filed the condonation petition stating that the challan towards appeal filing fees was paid on 10.01.2024, however, due to miscommunication between the Staff of the Counsel and the assessee, the delay of 109 days had occurred in filing the appeal. The delay was due to genuine reasons and not intentional. It is, therefore, prayed for condonation of delay in filing the appeal.
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We have gone through the averments made in the condonation petition and find it relevant to refer to the following decisions and their ratios :
(i) The Hon’ble Supreme Court in the case of Collector of Land Acquisition vs. Mst. Katiji, 167 ITR 471 (SC) had laid as follows :-
“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. 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.”
(ii) The Hon’ble Jurisdictional High Court in the case of Vijay Vishin Meghani vs. DCIT, 389 ITR 250 (Bom.) held that in the matter of condonation of delay an overall view in the larger interest of justice has to be taken. None should be deprived of an adjudication on merits unless the Court of law or the Tribunal/Appellate Authority finds that the litigant has deliberately and intentionally delayed filing of the appeal, that he is careless, negligent and his conduct is lacking in bonafides.
(iii) The Hon’ble Telangana High Court in the case of Thunuguntla Jagan Mohan Rao vs. DCIT, 427 ITR 204 (Telangana) after referring to the decision of the Hon’ble Supreme Court in the case of N. Balakrishnan vs. M. Krishnamurthy (1998) 7 SCC 123 (SC) held as follows :
“26. The Supreme Court in N. Balakrishnan v. M. Krishnamurthy [1998] 7 SCC 123 has held that the primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice; and that rules of limitation are not meant to destroy the right of parties, but
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they are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. It held that there is no presumption that delay in approaching the Court is always deliberate, and the words "sufficient cause" under section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice. It held that in every case of delay there can be some lapse on the part of the litigant concerned, but that alone is not enough to turn down his plea and to shut the door against him; and if the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor. It also observed that if the delay is deliberate, then the Court should not accept the explanation. It held that while condoning the delay, the Court should compensate the opposite party with costs.”
Applying the principles enunciated in the decisions referred to hereinabove, the facts of the present case, we are of the opinion that it is a fit case to condone the delay of 109 days in filing the appeal. We therefore condone the delay of 109 days and proceed for adjudication of the appeal.
Briefly, the facts of the case are that the assessee is an individual, no regular return of income under the provisions of section 139(1) for the A.Y. 2017-18 was filed. Based on the information available with the Department, the Assessing Officer (AO) noticed that the assessee made a cash deposit of Rs.9,90,000/- during the demonetization period and pre-demonetization/post demonetization period, in old currency notes of Rs.500.- and Rs.1000/- in her savings bank account maintained with The Nashik Deolali Vyapari Sahakari Bank Ltd. Notice u/s.142(1) was issued to the appellant on 10.03.2018 calling upon her to prepare a true and correct return of income in respect of which the assessee is assessable under the Income-tax Act, 1961. There was no response by the assessee to such notice. In the circumstances, the AO vide order dated 26.11.2019 completed the assessment u/s.144 of the Act. While doing so, the AO made addition of cash deposit of Rs.10,08,400/- as unexplained money u/s.69A of the Act, on the failure of the assessee to
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offer any acceptable and cogent explanation regarding the source of such money found in her bank account.
Aggrieved by the above assessment order, an appeal was filed before the CIT(A)/NFAC who vide impugned order dismissed the appeal in limine for non-prosecution.
Being aggrieved, the appellant is in appeal before this Tribunal in the present appeal.
The ld. Authorised Representative for the assessee submits that the assessee’s case was not represented before the authorities as the notices have been sent on e-mail ID of the husband of the assessee who was not in the practice of checking the e-mails regularly which resulted in passing of the ex parte orders. Given an opportunity, the assessee is in a position to submit the requisite information along with related documentary evidences.
On the other hand, the ld. Departmental Representative placing reliance on the orders of the authorities submit that no interference by this Tribunal is called for
We heard the rival submissions and perused the material on record. Undisputedly, the CIT(A)/NFAC had dismissed the appeal of the appellant in limine without going into the merits of the issues. Further, it is a trite law that the CIT(A)/NFAC should have dealt with the merits of the issue in appeal, even in the case of ex-parte order. From the perusal of the impugned order, it would reveal that the CIT(A)/NFAC had not gone into the merits of the issue in appeal, merely dismissed the appeal for non-prosecution, which is contrary to the settled position of law. The Hon’ble Bombay High Court in the
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case of Pr.CIT(Central) Vs. Premkumar Arjundas Luthra (HUF) Bombay)/[2017] 297 CTR 614 (Bombay) has held as under :
Quote, “8.From the aforesaid provisions, it is very clear once an appeal is preferred before the CIT(A), then in disposing of the appeal, he is obliged to make such further inquiry that he thinks fit or direct the Assessing Officer to make further inquiry and report the result of the same to him as found in Section 250(4) of the Act.
Further Section 250(6) of the Act obliges the CIT(A) to dispose of an appeal in writing after stating the points for determination and then render a decision on each of the points which arise for consideration with reasons in support. Section 251(1)(a) and (b)of the Act provide that while disposing of appeal the CIT(A)would have the power to confirm, reduce, enhance or annul an assessment and/or penalty. Besides Explanation to sub-section (2)of Section 251 of the Act also makes it clear that while considering the appeal, the CIT(A) would be entitled to consider and decide any issue arising in the proceedings before him in appeal filed for its consideration, even if the issue is not raised by the appellant in its appeal before the CIT(A). Thus once an a ssessee files an appeal under Section 246A of the Act, it is not open to him as of right to withdraw or not press the appeal. Infact the CIT(A) is obliged to dispose of the appeal on merits. Infact with effect from 1st June, 2001 the power of the CIT(A) to set aside the order of the Assessing Officer and restore it to the Assessing Officer for passing a fresh order stands withdrawn. Therefore, it would be noticed that the powers of the CIT(A) is coterminous with that of the Assessing Officer i.e. he can do all that Assessing Officer could do. Therefore just as it is not open to the Assessing Officer to not complete the assessment by allowing the assessee to withdraw its return of income, it is not open to the assessee in appeal to withdraw and/or the CIT(A) to dismiss the appeal on account of non-prosecution of the appeal by the assessee. This is amply clear from the Section 251(1)(a) and (b)and Explanation to Section 251(2) of the Act which requires the CIT(A) to apply his mind to all the issues which arise from the impugned order before him whether or not the same has been raised by the appellant before him. Accordingly, the law does not empower the CIT(A) to dismiss the appeal for non-prosecution as is evident from the provisions of the Act.” Unquote.
Thus, the Hon’ble Bombay High Court has categorically held that CIT(A) has to decide the appeal on merit and CIT(A) does not have any
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power to dismiss appeal for non-prosecution. Considering the entirety of the facts and circumstances and submissions of the assessee, we are of the considered opinion that it is a fit case for remand of the matter to the file of the CIT(A)/NFAC for de novo consideration in accordance with law after affording due opportunity of hearing to the assessee.
In the result, the appeal filed by the assessee stands partly allowed. Order pronounced on this 23rd day of July, 2024.
sd/- sd/- (VINAY BHAMORE) (INTURI RAMA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER Pune / Dated : 23rd July, 2024. Satish
आदेश क� �ितिलिप अ�ेिषत / Copy of the Order forwarded to : अपीलाथ� / The Appellant. 1. ��यथ� / The Respondent. 2. 3. The Pr. CIT concerned. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, “SMC” ब�च, 4. पुणे / DR, ITAT, “SMC” Bench, Pune. गाड� फ़ाइल / Guard File. 5. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune.