DEVA INTERNATIONAL,KOLKATA vs. A.C.I.T CIR - 29,KOLKATA, KOLKATA

The assessee is a partnership firm engaged in the business of export of leather. For AY 2009-10, the assessee filed return of income declaring total income of Rs. 22,21,020/-. An order of assessment dated 30th December, 2011 was passed by the assessing officer under section 143 (3) of the income tax act, 1961, determining the total income of the assessee at Rs. 36, 25, 646.

Aggrieved by the order of the AO, the Assessee preferred an appeal before the C. I. T. (A). There was a delay of about 32 days in filing the appeal before the first Appellate authority. The assessee explained the delay in filing the appeal before the first appellate authority as due to the fact that the person who was looking after the accounts and taxation matters of the assessee suddenly left the services without any intimation. The CIT(A) was of the view that the assessee did not mention then the International-A.Y.2009-10 person left and why the assessee did not make any alternative arrangement for filing the appeal. The CIT(A) thus refused to condone the delay in filing the appeal.

Aggrieved by order of the CIT(A) the assessee has preferred the present appeal before the tribunal.

Notice of hearing was sent to the party. The same has not been served on the assessee. None appeared on behalf of the Assessee.

We have considered the order of the CIT(A) and are of the view that the same is unsustainable. The law is well settled that in matters of condonation of delay a liberal view has to be taken. More so in taxation matters where the assessee gains nothing by delaying filing of an appeal. In the decision of the Hon’ble Apex Court in the case of Collector, Land Acquisition v. Mst. Katiji & Ors. (1987) 167 ITR 471 the Hon’ble Supreme Court has explained the principles that need to be kept in mind while considering an application for condonation of delay. The Hon’ble Apex Court has emphasized that substantial justice should prevail over technical considerations. The Court has also explained that a litigant does not stand to benefit by lodging the appeal late. The Court has also explained that every day’s delay must be explained does not mean that a pedantic approach should be taken. The doctrine must be applied in a rational common sense and pragmatic manner. Similar is the ratio laid down in the following decisions Concord of India Insurance Co. Ltd. v. Smt. Nirmala Devi and Ors. 118 ITR 507(SC) Radha Krishna Rai v. Allahabad Bank & Ors. (2009) 9 SCC 733 and Commissioner of Income-tax v. West Bengal Infrastructure Development Finance Corporation Ltd. (2011) 334 ITR 269 (SC). Keeping in mind the decisions referred to above, we are of the view that the delay in filing the appeal before the CIT(A) ought to have been condoned by the CIT(A). We condone the delay in filing appeal before CIT(A). Since the CIT(A) has not decided the appeal of the Assessee on merits, we direct the CIT(A) to decide the appeal of the Assessee on merits after International-A.Y.2009-10 affording Assessee opportunity of being heard. Appeal of the Assessee is treated is allowed for statistical purpose.

In the result appeal is allowed for statistical purpose.