GORUR INFRA PROJECTS PRIVATE LIMITED ,RAIGAD vs. DEPUTY COMMISSIONER OF INCOME TAX, PNVEL CIRCLE, PANVEL, PANVEL

Facts of the case, in brief, are that the assessee is a Private Limited Company engaged in the business of designing, construction, erection and commissioning of various infrastructural project jobs for all types of public utility services of Government departments, local bodies, town planning bodies, etc. It filed its return of income on 30.09.2013 declaring total income at Rs.49,33,920/-. The Assessing Officer (AO) completed the assessment u/s 143(3) on 22.02.2016 determining the total income of the assessee at Rs.93,59,540/-, wherein he made addition of Rs.44,25,621/- by disallowing the deduction claimed u/s 80IA(4) of the Income Tax Act, 1961 (hereinafter referred to as „the Act‟). Since the assessee filed the appeal before the CIT(A) with a delay of 159 days, the CIT(A) / NFAC dismissed the appeal filed by the assessee on account of delay in filing of the appeal by observing as under:

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

The Ld. Counsel for the assessee at the outset filed an Affidavit explaining the reasons for such delay, according to which, Mr. Mohankumar P. Gorur and his wife Mrs. Shobha M. Gorur who are Directors of the company, were always away from the headquarters and were at the work site and the concerned Chartered Accountant, who was looking after the tax work could not inform the Directors about the technicalities in filing of the appeal within stipulated time. Relying on various decisions, she submitted that the delay in filing of the appeal before the CIT(A) / NFAC may be directed to be condoned and the appeal may be decided on merit.

The Ld. DR on the other hand, heavily relied on the order of CIT(A) / NFAC. He submitted that when the assessee failed to file the appeal within the stipulated time as per law, the CIT(A) / NFAC was justified in dismissing the same.

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 CIT(A)/NFAC in the instant case dismissed the appeal filed by the assessee on account of delay in filing of the appeal by 159 days, the reasons of which are already mentioned in the preceding paragraph. It is the submission of the Ld. Counsel for the assessee that the delay in filing of the appeal was not intentional but due to the absence of the directors of the assessee company from the place of business for longer period, due to which it has escaped their attention and the concerned Chartered Accountant was also not able to get the directions for filing of the appeal within stipulated time.

We find some merit 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, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in injustice being done because of a non-deliberate delay”. It has further held that ordinarily, the litigant does not stand to benefit by lodging an appeal late. Refusing to condone the delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. Respectfully following the decision of Hon'ble Supreme Court cited (supra), we direct the CIT(A) / NFAC to condone the delay in filing of the appeal and decide the issue on merit as per fact and law after giving due opportunity of being heard to the assessee. 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.