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Income Tax Appellate Tribunal, JAIPUR BENCHES,”SMC” JAIPUR
Before: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA. No. 57/JP/2023
ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM This appeal is filed by assessee and is arising out of the order of the National Faceless Appeal Centre, Delhi dated 21/03/2022 [here in after (NFAC)] for assessment year 2017-18, which in turn arise from the order of the ITO Ward 4(2), Jaipur dated 17.10.2019.
At the outset the registry pointed out that there is delay in filling this appeal by the assessee. Assessee has filed a petition to condone the delay in filling this appeal and the prayer of the assessee reads as under:
“On-appeal appeal in Form 35, before CIT(A)2. Jaipur was presented through mail on 15.11.2019 wherein gmail address as Calokeshkasat@mail.com was mentioned. The case was, thereafter transferred to CIT(A)National Faceless Appeal Centre. No fixation of date notice at the above mailing address was received. The appeal of the assessee was dismissed ex-parte for non-compliances of statutory notices. The assessee came to know about dismissal of appeal by CIT(A), NFAC when he contacted undersigned on 3rd February 2023. On informing the pass word in his case, undersigned informed the assessee that after passing ex-party appeal order by Id. CIT(A) NFAC on 21.03.2022, Id. AO had also issued show-cause notice for penalty under section 271AAC (1) of Income tax Act. The assessee was not aware of said ex-parte order by Id. CIT(A) NFAC. As the second appeal before this Hon'ble Tribunal was already delayed, at the request of the assessee, undersigned mailed appeal and appellate Grounds of appeal in Form No. 36 to this Hon'ble Tribunal on very next day on 4th February 2023 after payment of appeal fee. Since 4th February 2023 was Saturday. complete set of appeal with Power of Attorney in favour of undersigned was submitted to this Hon'ble Tribunal on next working day, i.e. Monday 6th February 2023.
Considering the sufficient cause of delay in presenting the appeal and in view of different judgments of Hon'ble Supreme Court, other higher judicial authorities so also the affidavit of the assessee, his earlier Counsel and of undersigned, it requested that the delay of 261 days in filing the appeal may please be condoned and appeal may please be restored to Commissioner of appeal, NFAC. (A) Hon'ble Supreme Court in the case of Collector. Land Acquisition Vs. Mst. Katiji (1987) has held as under: "The legislature has conferred the power to condone the delay by enacting section 5 of the Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on merits. The expression "sufficient cause" employed by the Legislature is inadequately elastic to enable the Courts to apply the law in a meaningful manner, which sub-serves the ends of justice that being the life purpose of the existence of the Institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matter instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy". In this judgment, Hon'ble Supreme Court has mentioned the aspects that have to be borne in mind while exercising Power of Condonation. These are:
(1) Ordinarily, a litigant does not stand to benefit by lodging an appeal late; (2) Refusing to condone the 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. (3) 'Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hours delay, every second delay? The doctrine must be applied in a rational, commonsense and pragmatic manner. (4) Why substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of 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 serious risk.
(6) It must be borne into mind that the judiciary is respected not on account of its powers to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
(B) Hon'ble Apex Court has advised similar approach. In N. Balakrishnan V/s. M. Krishnamurthy (1998) 7 SSC 123 (SC) the Apex Court has explained the scope of limitation and condonation of delay, observing as under: "The primary function of the court is to adjudicate the dispute between the parties and to advance substantial justice. The time limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform in to a goods cause. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy for the redress of the legal injury so suffered. The law of limitation is thus founded on public policy".
(C) In New India Insurance Co. Ltd. Vs. Smt. Shanti Misra AIR 1976 SC 237 Hon'ble Supreme Court has held that discretion given by section 5 should not be defined or crystallized so as to convert a discretionary matter in to right rule of law. The expression "sufficient cause" should receive a liberal construction.
(D) In O.P. Kathapadia V. Lakhmir Singh AIR 1984 SC 1744, The Hon'ble Supreme Court held that if the refusal to condone the delay results in grave miscarriage of justice, it would a ground to condone the delay.
Various High Courts have also made like observations. In the context of tax laws too, such situation are being often noticed. Despite such views of the courts, the altitudes of lower authorities like CIT(Appeal) and Tribunal have not changed and still requests are being turned down mechanically, multiplying litigation to no ones benefit. Such tendency needs to be curbed and more liberal attitude adopted. Recent decision in case of Sandy Mallick Vs. ITO (2022) 220 (Ctk) 430. is enclosed herewith on the identical facts of the assessee.”
2.1 The ld. AR of the assessee also relied upon the affidavit of the assessee as well as his CA regularly dealing with the case of the assessee. The content of the affidavit of the assessee reads as under:
“I Bhim Singh S/o Shri Gokul r/o. C-24, Ambabari, Metal Colony Jaipur solemnly affirm and state as under: (1) That I am assessed to Income tax vide PAN CFRPS5909A. (2) that after filing on-line appeal by my earlier Chartered Accountant Shri Lokesh Kasat before Commissioner of Income tax (Appeals)-2, Jaipur for the additions made vide order dated 17.10.2019 under section 143(3) of Income tax Act, I did not received any fixation notice either in physical form or through mailing address given in Form 35, therefore I was not aware about the progress of my appeal to CIT(A). (3) That only on contacting Shri G. M. Mehta, Chartered Accountant on 3rd February 2023 and after providing the pass-word to him, from his computer he had informed me that my appeal by CIT(A) faceless was dismissed ex-parte by CIT(A), Faceless vide his order dated 21.03.2022. (4) That on coming to know about dismissal of my said Appeal by CIT (Appeals) Faceless I requested Shir G.M.Mehta, FCA to file the appeal immediately to this Hon’ble Income Tax Appellate Tribunal, Jaipur with my application to condone the delay. (5) That my above affidavit is true, it conceals nothing, May God help me. Place: Jaipur Dated 28 Februrary 2023 (Bhim Singh) I Bhim Singh S/o Shri Gokul, resident of Jaipur do hereby verify before Notary Public, Jaipur that the contents of para (1) to (4) of my above affidavit are true to my personal knowledge and the contents of para (5) are believed to be true by me. Verified on 28th February 2023. (DEPONENT)”
2.2 Content of the affidavit of the Chartered Accountant of the assessee reads as under “I Lokesh Kasat S/o Shri Nand Kishoreji Kasat, r/o 512, Shiv Shakti Paradise, Vidyadhar Nagar, Jaipur Solemnly affirm and state as under:- (1) That I am a Chartered Accountant in practice in Jaipur (2) That I have been filing Income tax Returns of Shri Bhim Singh S/o Shri Gukul who is assessed to I.Tax vide PAN CFRPS5909H. (3) In Form No. 35 (appeal before ld. CIT(A)-2, Jaipur which was thereafter transferred to National Faceless Appeal Centre, the mailing address given was calokeshkasat@gmail.com. (4) That no fixation notice or order was received on the above mailing address. (5) That my above affidavit is true, it conceals nothing, May God help me. Place : Jaipur Date: 27 February 2023 (Lokesh Kasat) I Lokesh Kasat S/o Late Shri Nand Kishoreji Kasat r/o 512, Shiv Shakti Paradise, Vidyadhar Nagar Jaipur do hereby verify before Notary Public, Jaipur that the contents of para No. (1) to (3) of my above affidavit are true to my personal knowledge and the contents of para No. (4) are believed to be true by me. Verified on this 27th February 2023 at Jaipur. (DEPONENT)”
2.3 Based on the above written submission and affidavit of the CA of the assessee the ld. AR of the assessee prayed that the delay of bringing this appeal may be condoned in the interest of the justice.
2.4 On the other hand the ld. DR not objected to the petition of the ld. AR of the assessee for condonation of delay and left the decision to the bench in the matter. material available on record made available by both the parties.
We have also gone through the various judicial precedent cited to drive home to their contentions so raised and to plead the delay in filling this appeal by the assessee. The bench noted that there is no dispute about the number of days delay by both the parties that this appeal is filed by the assessee after a delay of almost 318 days. Before us the ld. AR of the assessee contended that the notice was not issued on the mail id mentioned in the form no. 35 filed by the assessee and thus, the assessee could not represent their case before the ld. CIT(A)/NFAC. The fact that the order has been passed has came to the knowledge only when the ld. AO issued notice for levy of penalty. Based on these set of fact the ld. AR of the assessee submitted that there is delay of 318 days for which the ld. AR of the assessee submitted that they have reasonable reasons for not filing an appeal in time.
2.6 There is also no dispute that under section 253(5) of the Act, the Tribunal may admit an appeal filed beyond the period of limitation where it is satisfied that there was sufficient cause on the part of the assessee for not presenting the appeal within the prescribed time. Section 253(5) deals the power of the tribunal and the same is reiterated here in below:
Section 253 (5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section (3) or sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period.
2.7 Thus, based on that provision tribunal may admit an appeal filed beyond the period of limitation where it is satisfied that there exists a sufficient cause on the part of the assessee for not presenting the appeal within the prescribed time. The explanation of the assessee therefore, becomes relevant to determine whether the same reflects sufficient and reasonable case on its part in not presenting the present appeal within the prescribed time. In the present case, the assessee and his Chartered Accountant both filed an affidavit stating that the fact and reasoned for filling this appeal belated against impugned order.
2.8 Based on the decision of apex court cited by the ld. AR of the assessee in his submission in the case of Collector, Land Acquisition vs MST Katiji, the Hon'ble Supreme Court has held that the expression 'Sufficient Cause' employed by the legislature is adequately elastic to enable the Courts to apply the law in a life-purpose of the existence of the institution of Courts. It was further held by the Hon'ble Supreme Court that such liberal approach is adopted on one of the principles that 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. Another principle laid down by the Hon'ble Supreme Court is 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 vested right in injustice being done because of a non-deliberate delay. It was also held by the Hon'ble Supreme Court that there is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of male fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk. In the instant case, applying the same principles, we find that the assessee has all along acted diligently in safeguarding his legal rights and availing the remedies available to him and has acted when the matter brought to the notice. The apex court further done between the parties.
2.9 In light of above discussions and in the entirety of facts and circumstances of the case, we are of the considered view that the assessee in his affidavit detailed the reasons for the delay and the same is supported by the affidavit of this Chartered Accountant made out a clear case that there was sufficient cause which being beyond his control, prevented him from filing the present appeal in time before the Tribunal. We find that there is no culpable negligence or mala fide on the part of the assessee in delayed filing of the present appeal and he does not stand to benefit by resorting to such delay. Therefore, in the factual matrix of the present case, we find that there exists sufficient and reasonable cause for condoning the delay of 318 days in filing the present appeal and as held by the Hon'ble Supreme Court, where substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserved to be preferred. Therefore, in exercise of powers under section 253(5) of the Act, we hereby condone the delay of 318 days in filing the present appeal as we are satisfied that there was sufficient cause for not presenting the appeal within the prescribed time and the appeal is hereby admitted for adjudication on merits.
Now, coming to the merits of the case, the assessee has marched this appeal on the following grounds of appeal:
“1. Ld. CIT(A) (NFAC) has decided the appeal vide appellant order dated 21.03.2022 without providing reasonable opportunity of being heard as the fixation notices under section 250 of I.T. Act, referred to in appeal order appear to were never received either by the Assessee or his earlier A/R, which could have been mailed to some other unknown mailing address not of the Assessee or his earlier A/R. (Shri Pankaj Jhawar, FCA).”
The fact as culled out from the records is that the assessee is a small job worker, he has e-filed return of income on 29.12.2017 declaring total income at Rs. 2,71,720/- after deduction of Rs. 10,000/- under chapter VIA (80TTA). The case was selected for limited scrutiny assessment under CASS and accordingly, notice u/s 143(2) of the I.T. Act, 1961 was issued on 11-08-2018 fixing the hearing on 27-08-2018. No reply was filed in response to the above notice. Thereafter, notice u/s 142(1) along with specific questionnaire was issued on 14.05.2019 asking the assessee to file/upload requisite information and details by 22.05.2019. The case was then adjourned on two occasions (on 05.08.2019 and on 14.08.2019) on written request of the A/R of the assessee.
Thereafter, the A/R of the assessee uploaded certain information and details. The same were examined on test check basis and the case was assessee at income of Rs. 11,53.134/- against the returned income of Rs. 2,71,720/-.
Being aggrieved, the assessee carried the matter in appeal before the ld. CIT(A). The ld. CIT(A) vide para 3 stated that :
“3. During the course of appellate proceedings, it is noted that various opportunities have been provided to the appellant by issuing various notices. The details of such notices are as under:-
S. DIN No. Date of Date of Status No. Notice online issued submission 1 ITBA/NFAC/F/APL_1/2020- 19.01.2021 19.02.2021 No 21/1029887832(1) Compliance 2 ITBA/NFAC/F/APL_1/2021- 14.10.2021 16.11.2021 No Compliance 22/1036379041(1) 3 ITBA/NFAC/F/APL_1/2021- 24.12.2021 11.01.2022 No Compliance 22/1038093448(1) 4 ITBA/NFAC/F/APL_1/2021- 03.03.2022 10.03.2022 No Compliance 22/1040305963(1)
However, no response has been received from the appellant till date. In such circumstances, this appeal is decided based on the material available on record. ld. AR of the assessee by filling an affidavit explained the reasoned behind not appearing before the ld. CIT(A). As there was no option for ld. CIT(A) to keep the appeal pending he has decided the case based on the merits available on records.
Before us, the ld. AR of the assessee based on the submission and affidavit filed prayed that they may be given one more opportunity before the ld. CIT(A) to be heard on merits as the notices were not served on the mail mentioned in the Form no. 35.
Per contra, the ld. Sr. DR relied on the findings of the lower authorities as the case has been decided on merits even though without hearing the assessee. At the same time considering the peculiar facts of the case she has not objected to the prayer of the assessee and has not expressed any specific objection in giving a chance to the assessee to be heard on merits.
We have heard the rival contentions and persuaded the contentions raised before us. The contention of the assessee that the revenue has not sent the notice on the mail id mentioned in the assessee and affidavit of his Chartered Accountant were placed on record. Revenue did not controvert the basic contentions that the notices were not served on the said mail id. Based on these set of facts we are of the considered view that the assessee is deprived off the justice before the ld. CIT(A) even though the ld. CIT(A) has given the finding on the merits based on the facts available before him. But since, the assessee has not received an opportunity of being heard before the ld. CIT(A) on account non receipt of the notice on the mail id given in the appeal memo. The Bench noted from the entire episode that the assessee is deprived off to get the justice from the judicial authorities below because of technical latches which should not be done. Hence, the Bench in the interest of equity and justice restores the appeal of the assessee to the file of the ld. CIT(A) for a fresh adjudication taking into consideration the facts placed before us. The assessee is also directed not to take adjournment on frivolous ground and co-operate the ld. CIT(A) for the adjudication of the appeal on merits. Thus the appeal of the assessee is allowed for statistical purpose. purposes.