M/S ZERINA MARINE (P) LTD.,BHUBANESWAR vs. DY. CIT CIRCLE-1, BHUBANESWAR

आयकर अऩीऱीय अधधकरण, कटक न्यायऩीठ,कटक IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK श्री जाजज माथन, न्याययक सदस्य एवं श्री अरुण खोड़पऩया ऱेखा सदस्य के समक्ष । BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER AND SHRI ARUN KHODPIA, ACCOUNTANT MEMBER आयकर अऩीऱ सं/ITA No.115/CTK/2022 (ननधाारण वषा / Assessment Year :1998-1999) M/s Zerina Marines (P) Ltd., Vs DCIT, Circle-1, Bhubaneswar At-67, Sahid Nagar, Bhubaneswar PAN No. :AAACZ 2200 N (अऩीऱाथी /Appellant) (प्रत्यथी / Respondent) ..

ननधााररती की ओर से /Assessee by : Shri Subit Sahoo, AR राजस्व की ओर से /Revenue by : Shri S.C.Mohanty, Sr. DR सुनवाई की तारीख / Date of Hearing : 17/11/2022 घोषणा की तारीख/Date of Pronouncement : 17/11/2022 आदेश / O R D E R Per Bench : This an appeal filed by the assessee against the order of the ld. CIT(A)-II, Bhubaneswar, dated 21.05.2003 passed in I.T.Appeal No.0002/02-03 for the assessment year 1998-1999. Heard on the adjournment application: 2. The ld. AR of the assessee has filed an adjournment letter saying that he needs more time to prepare the paper book for due adjudication of the case. 3. It must be mentioned here that before the AO, no evidence has been produced. The assessment order is an ex-parte order. Before the ld. CIT(A), no evidence has been produced. The ld. CIT(A) has dismissed the appeal of the assessee on the ground of limitation. This Tribunal is unable to fathom as to how the ld. AR is proposing to file document before the

2 ITA No.115/CTK/2022 Tribunal when the same have not been produced before the lower authorities. This being so, the adjournment application filed by the assessee is rejected. Heard on the question of condonation of delay 4. The appeal filed by the assessee before the Tribunal is allegedly belated by 5820 days. The facts that giving rise to the appeal have a chequered history. The assessment order came to be passed u/s.144 of the Act ex-parte on 16.03.2001. The assessee has filed a Writ Petition before the Hon’ble Jurisdictional High Court against the assessment order. The Writ Petition was registered as OJC No.2845 of 2002. The Writ Petition came to be decided by the Hon’ble Jurisdictional High Court vide order dated 14.03.2002, wherein the Hon’ble Jurisdictional high Court had declined to entertain the writ petition as the petitioner had an efficacious alternative remedy. Consequently on 17.04.2002, the assessee filed an appeal before the ld. CIT(A)-2, Bhubaneswar. Before the ld. CIT(A), the assessee had attempted to explain the delay of 360 days by stating that the Hon’ble Jurisdictional High Court had permitted the assessee to seek alternate remedy by way of appeal but the ld. CIT(A) had dismissed the appeal of the assessee on limitation by holding that the Hon’ble Jurisdictional High Court had not given any specific direction to condone the delay. The ld. CIT(A)’s order is dated 21.05.2003. Against the order of the ld. CIT(A), the assessee had again filed a writ petition before the Hon’ble Jurisdictional High Court in WP(C) No.7917 of 2008. Here what is to be understood is that the time limit for filing the appeal before the

3 ITA No.115/CTK/2022 Tribunal against the order of the ld. CIT(A) expired in July, 2003. The Writ Petition has been filed only in 2008 much after the expiry of the limitation for filing the appeal before the Tribunal. In effect, the writ petition has been filed before the Hon’ble Jurisdictional High Court only for the purpose of overcoming the issue of limitation in filing the appeal before the Tribunal. The Hon’ble Jurisdictional High Court in Writ petition No.7917 of 2008 has, however, directed the Tribunal that if the appeal is filed not later than 20th June, 2022 along with an application for condonation of delay, explaining the delay on account of pendency of the present petition, it will be considered by the appellate authority in accordance with law. Admittedly, the assessee has filed the appeal before the Tribunal on 17.06.2022. Thus, the assessee has complied with the order of the Hon’ble Jurisdictional High Court passed in WP (C) No.7917 of 2008. The assessee has also filed an application for condonation of delay and in the said application the assessee has explained the delay to be on account of the pendency of the writ petition before the Hon’ble Jurisdictional High Court. As the assessee has complied with the direction of the Hon’ble Jurisdictional High Court in WP (C) No.7917 of 2008, dated 02.05.2022, we are of the view that the delay in filing of this appeal before the Tribunal is liable to be condoned and we do so. 5. Though the ld. Sr. DR has vehemently opposed the condonation of delay, however, it is also well-known fact that if the technicality is pitted against substantial justice, the technicality must step back and substantial

4 ITA No.115/CTK/2022 justice should prevail, we feel that the delay in filing of the appeal by the assessee is liable to be condoned. 6. Coming to the powers of the ITAT in respect of condonation of delay, a perusal of the provisions of Section 253(5) of the Act, there is a specific provision that the Tribunal can 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. As mentioned earlier, we are of the view that the assessee was prevented by substantial cause in not filing the appeal within the prescribed time. Consequently, the delay in filing the appeal stands condoned and the appeal is admitted for hearing. 7. Admittedly, the assessee has also filed appeal before the ld. CIT(A) belatedly on account of the Writ Petition filed before the Hon’ble Jurisdictional High Court against the assessment order. For the same reason as we have condoned the delay in filing of this appeal before the Tribunal, we feel that the delay in filing of the appeal before the ld. CIT (A) is also required to be condoned and we do so. 8. However, as mentioned earlier, there has been no details filed by the assessee either before the AO during the assessment proceedings or before the ld. CIT(A) in the appellate proceedings. This being so, in the interest of justice and so as to grant the assessee a final opportunity to substantiate its case before the AO, we restore the issues in this appeal in respect of merits to the file of AO for readjudication after granting the

5 ITA No.115/CTK/2022 assessee adequate opportunity of being heard. In the event of non- cooperation by the assessee in set aside proceedings, liberty is granted to the AO to draw adverse inference on the basis of the facts available before him. 9. In the result, appeal of the assessee is partly allowed for statistical purposes. Order dictated and pronounced in the open court on 17/11/2022. Sd/- Sd/- (अरुण खोड़पऩया) (जाजज माथन) (ARUN KHODPIA) (GEORGE MATHAN) ऱेखा सदस्य/ ACCOUNTANT MEMBER न्यानयक सदस्य / JUDICIAL MEMBER कटक Cuttack; ददनाांक Dated 17/11/2022 Prakash Kumar Mishra, Sr.P.S. आदेश की प्रनतलऱपऩ अग्रेपषत/Copy of the Order forwarded to : अऩीऱाथी / The Appellant- 1. M/s Zerina Marines (P) Ltd., At-67, Sahid Nagar, Bhubaneswar प्रत्यथी / The Respondent- 2. DCIT, Circle-1, Bhubaneswar आयकर आयुक्त(अऩीऱ) / The CIT(A), 3. आयकर आयुक्त / CIT 4. 5. पवभागीय प्रयतयनधध, आयकर अऩीऱीय अधधकरण, कटक / DR, ITAT, Cuttack गार्ज पाईऱ / Guard file. आदेशानुसार/ BY ORDER, 6. सत्यापऩत प्रयत //True Copy// (Assistant Registrar) आयकर अऩीऱीय अधधकरण, कटक/ITAT, Cuttack