ABDUL GANI DAWOOD KHAN DESHMUKH,NAVI MUMBAI vs. ASSESSING OFFICER, PANVEL

Although a number of grounds have been raised by the assessee, however, these all relate to the order of the Ld. CIT(A) / NFAC in dismissing the appeal filed by the assessee due to delay in filing of the same by 30 days.

Facts of the case, in brief, are that the assessee is an individual and has not filed his return of income for the impugned assessment year. Information was available with the department that the assessee has purchased immovable property valued at Rs.51,70,000/- and has not filed his return of income. Therefore, following due procedure u/s 148A of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’), a show cause notice u/s 148A(b) of the Act was issued. However, there was no response from the side of the assessee for which the Assessing Officer passed an order u/s 148A(d) of the Act. Thereafter, notice u/s 148 of the Act was issued and served on the assessee. However, there was no response from the side of the assessee. Subsequent notices issued u/s 142(1) of the Act were also remained un-complied with. The Assessing Officer, therefore, in the ex-parte order passed u/s 147 r.w.s. 144 of the Act determined the total income of the assessee at Rs.51,70,000/-.

Since the assessee filed the appeal before the Ld. CIT(A) / NFAC with a delay of 30 days, the Ld. CIT(A) / NFAC dismissed the appeal by observing as under:

Aggrieved with such order of the Ld. CIT(A) / NFAC the assessee is in appeal before the Tribunal.

The Ld. Counsel for the assessee drew the attention of the Bench to the explanation given before the Ld. CIT(A) / NFAC for condonation of delay which reads as under:

Relying on various decisions the Ld. Counsel for the assessee submitted that the Ld. CIT(A) / NFAC should not have dismissed the appeal on account of delay and should have decided the appeal on merit by condoning the delay. He accordingly submitted that he has no objection if the matter is restored 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.

The Ld. DR on the other hand heavily relied on the orders of the Assessing Officer and the Ld. CIT(A) / NFAC.

We have heard the rival arguments made by both the sides, perused the orders of the Assessing Officer and Ld. CIT(A) / NFAC and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find the Assessing Officer in the instant case completed the assessment u/s 147 r.w.s. 144 of the Act determining the total income of the assessee at Rs.51,70,000/- by making addition of the same on the ground that the assessee has not offered any explanation towards purchase of immovable property. We find the Ld. CIT(A) / NFAC dismissed the appeal filed by the assessee on the ground that there was a delay in filing of the same by 30 days and the assessee has not given any reasonable cause for delay in filing of the appeal. It is the submission of the Ld. Counsel for the assessee that due to his mother’s death during 2024 the assessee came to India for his mother’s funeral and he was not aware of any order till that date. It is also his submission that in view of various decisions of the Hon’ble Supreme Court the Ld. CIT(A) / NFAC should have decided the issue on merit.

We find some force in the above arguments of the Ld. Counsel for the assessee. 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.

We find recently the Hon’ble Supreme Court in the case of Inder Singh Vs. The State of Madhya Pradesh reported in 2025 LiveLaw (SC) 339 has held as under: “14. There can be no quarrel on the settled principle of law that delay cannot be condoned without sufficient cause, but a major aspect which has to be kept in mind is that, if in a particular case, the merits have to be examined, it should not be scuttled merely on the basis of limitation.”

In the light of the above decisions of Hon’ble Supreme Court cited (supra) and considering the totality of the facts of the case and in the interest of justice, we deem it proper to 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 and as per fact and law after giving due opportunity of being heard to the assessee.

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