If we consider the explanation of the assessee filed before the ld.CIT(A), which has been partly reproduced in the order of the ld.CIT(A) on page no.3, then it would reveal that chief accountant of the company was ill and failed to hand over assessment order to the tax consultant for filing appeal. To our mind, there is no mala fide in this explanation. The delay had occurred on account of bona fide mistake at the end of the chief accountant. By making delay in filing appeal before the ld.CIT(A) the assessee would not achieve anything. Thus, it cannot be adopted as a strategy. It could only be a result out of bona fide mistake. We condone the delay, and set aside the order of the ld.CIT(A). We remit all other issues to the file of the ld.CIT(A) for adjudication on merit.
FULL TEXT OF THE ITAT JUDGMENT
Assessee is in appeal before the Tribunal against order of the ld.CIT(A)-5, Ahmedabad dated 29.5.2017 passed for the Asstt.Year 2013-14.
2. Though the assessee has taken five grounds of appeal, but in the preliminary grounds of appeal, he has pleaded that his appeal was dismissed by the ld.CIT(A) on account that it barred by limitation. In other words, the ld.CIT(A) has not decided the appeal on merit, rather dismissed on the ground that it was filed after expiry of limitation. The finding recorded by the ld.CIT(A) reads as under:
“4.1. The appeal is filed late by 136 days. No valid reason was shown by the appellant for the delay of 186 days, Delay in filing the appeal can be condoled if there is a reasonable and sufficient cause which prevented the assesses to file the appeal within the stipulated time. In the instant case, the appellant failed to show any sufficient reason which has prevented it to file the appeal within stipulated time.
4.2. The appellant has taken the plea for the delay on the above reason is not verifiable from the records in absence of any evidences submitted alongwith the appeal and during appellate proceedings. Therefore, the delay made in filing the appeal does not deserve to be condoned and hence appellant’s request for condonation is not entertained and rejected.”
3. The ld.counsel for the assessee has filed an affidavit of Shri Pawan R. Sharma deposing therein how the delay has occurred in filing the appeal before the ld.CIT(A). The affidavit reads as under:
“I, Pawan Ramniwas Sharma, adult residing at 80, Nutan Cloth Market, Opp. Raipur Gate, Raipur, Ahmedabad – 380 002 state on solemn affirm as under:-
That the AO Order of Circle 5 (3) for A. Y. 2013-14 dated 21.10.2015 in case of my Employer Pawan S.Jalan was received by me at our business premises. I am a Chief Accountant and was not aware of any proceedings going on before the Income Tax Department. Through oversight due to my busy occupation with office work, I forgot to give the notice to Pawan S. Jalan or our Chartered Accountant. I handed over the notice to him. on 01.04.2016 find same during cleaning of my cupboard.
I have been informed that due to my Hon’bleCIT(A) has dismissed the appeals.
That what has been stated above is the fact and true to my knowledge.
4. He prayed that delay be condoned in filing appeal before the ld.CIT(A) and matter be remitted to the ld.CIT(A) for adjudication on merit. The ld.DR on the other contended that the assessee failed to give any plausible reason before the ld.CIT(A), and therefore, ld.CIT(A) has dismissed the appeal of the assessee.
5. We have duly considered rival contentions and gone through the record carefully. Sub-section 5 of Section 253 of the Act contemplates that the Tribunal may admit an appeal or permit filing of memorandum of cross-objections after expiry of relevant period, if it is satisfied that there was a sufficient cause for not presenting it within that period. This expression “sufficient cause” employed in the section has also been used identically in sub-section 3 of section 249 of Income Tax Act, which provides powers to the ld.Commissioner to condone the delay in filing the appeal before the Commissioner. Similarly, it has been used in section 5 of Indian Limitation Act, 1963. Whenever interpretation and construction of this expression has fallen for consideration before Hon’ble High Court as well as before the Hon’ble Supreme Court, then, Hon’ble Court were unanimous in their conclusion that this expression is to be used liberally. We may make reference to the following observations of the Hon’ble Supreme court from the decision in the case of Collector Land Acquisition Vs. Mst. Katiji & Others, 1987 AIR 1353:
“1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. 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.
3. “Every day’s delay must be explained” does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, 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.
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 a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.”1
6. In the light of the above, if we consider the explanation of the assessee filed before the ld.CIT(A), which has been partly reproduced in the order of the ld.CIT(A) on page no.3, then it would reveal that chief accountant of the company was ill and failed to hand over assessment order to the tax consultant for filing appeal. To our mind, there is no mala fide in this explanation. The delay had occurred on account of bona fide mistake at the end of the chief accountant. By making delay in filing appeal before the ld.CIT(A) the assessee would not achieve anything. Thus, it cannot be adopted as a strategy. It could only be a result out of bona fide mistake. We condone the delay, and set aside the order of the ld.CIT(A). We remit all other issues to the file of the ld.CIT(A) for adjudication on merit.
7. In the result, appeal of the assessee is allowed for statistical purpose. Order pronounced in the Court on 1stFebruary, 2019 at Ahmedabad.