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Income Tax Appellate Tribunal, DELHI BENCH: B: NEW DELHI
Before: SHRI CHANDRA MOHAN GARG & SHRI PRADIP KUMAR KEDIA
Date of Hearing : 02.08.2023 Date of Pronouncement : 17.08.2023 ORDER PER CHANDRA MOHAN GARG, J.M. These appeals have been filed against the order of Ld. CIT(A)-27, New Delhi dated 07.06.2019 for AYs 2011-12 & 2013-14. Issue of denial of condonation of delay by ld. CIT(A).
The ld. counsel submitted that order passed by ld CIT A dated 07/06/2019 is bad in law in as much as delay of 603 days in filing appeal before Ld CIT-A deserved to be condoned due to un-availability of appeal counsel Mr Mathur handling appeal matters of appellant company due to paralytic without any apparent reason for any negligence attributable to assessee specially where assessee has fool proof case on merits squarely covered by Hon'ble ITAT order in identical facts in assessee own case which required lenient and compassionate consideration in matter of condonation of delay thus order of Ld CIT-A being perverse and arbitrary deserves to be overruled. The ld. counsel drawing our attention towards condonation petition filed before ld. CIT(A) submitted that the learned First Appellate Authority grossly erred in denying condonation despite the fact that the Senior Counsel of assessee Shri. S.M Mathur had undergone bypass surgery at that time and the assessee submitted all relevant documentary evidences & 6140/Del/2019 before him submitting the sufficient cause explaining the delay. Therefore, the ld. counsel submitted that the delay before ld. CIT(A) in filing first appeal may kindly be condoned. The ld. counsel has relied on the following judgments of Hon’ble Supreme Court, Hon’ble High Court of Delhi and Hon’ble High Court of Bombay:- 1. N. Balakrishnan v M Krishna Murthy 1998 (7) SCC 123 2. H.L Malhotra & Com. vs. DCIT 431 ITR 148 (Del) 3. Vijay Meghani vs. ITO 389 ITR 250 (Bom) 4. Peter Vaz vs. CIT 436 ITR 76 (Bom)
Replying to the above, the ld. Senior DR strongly opposed to the condonation of delay and submitted the assessee could have engage another counsel or consultant for filing appeal within prescribed time limit before the ld. CIT(A) therefore inordinate delay in filing appeal was rightly denied as there was no sufficient and reasonable cause of delay.
On careful consideration of above submission, we are of the view that the Hon’ble Supreme Court in the case of N. Balakrishnan v M Krishna Murthy 1998 (7) SCC 123 and Hon’ble jurisdictional High Court of Delhi in the case of H.L Malhotra & Com. vs. DCIT (supra), as relied by the ld. counsel, held that if there is sufficient cause explaining the delay then the same should be condone as the assessee never benefited by the delayed filing of appeal. In the present case the assessee wanted to depend on particular consultant Shri S.M Mathur whereas the revenue justifying the denial of condonation by suggesting that the assessee should have engaged other counsel or consultant. The revenue is not entitled to suggest the assessee to manage his tax litigation it is choice of assessee that how he wants to proceed before the tax authorities. The ld. CIT(A) has not disputed or doubted factum of illness of Shri S.M Mathur who undergone bypass surgery during relevant time period. Therefore respectfully following the proposition rendered by Hon’ble Supreme Court in the case of N. Balakrishnan v M Krishna Murthy Others (supra) and judgment of Hon’ble jurisdictional High Court in the case H.L Malhotra & Com. vs. DCIT (supra) the delay in filing appeal before ld. CIT(A) is condoned and ground no. 1 of assessee is allowed. 5. Since the ld. CIT(A) has dismissed appeals in limine denying condonation of delay with expressing any adjudication on merits therefore both the appeals are restored to the file of ld. CIT(A) for adjudication of first appeal on merits without being influenced with the earlier first appellate order. Accordingly, ground no. 2 is allowed for statistical purposes.