Sandhya Mallick , Kendrapada V. ITO, Ward- 2(2), Bhubaneswar

ITA 172/CTK/2020

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 7426 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 6 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-03-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 11-08-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Period of limitation; Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BEFORE S/ AND ARUN KHODPIA, ACCOUNTANT MEMBER Sandhya Mallick, At: Andhara, Pattamumndai, Dist: Kendrapara PAN/GIR No. (Appellant Per C.M.Garg This is an appeal filed by the assessee against the order of the CIT(A),1, Bhubaneswar 2. The appeal is time barred by 627 days. The assessee has filed condonation petition dated 5.8.2020 assessee, wherein, it is stated as under: “1. That the assessee challenged the assessment by filing of appeal before representative. While filing of appeal the A/R of the Assessee incorporated his email ID and Mobile number instead the email ID and mobile number of the Assessee in the appeal memo and also opted the option IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK S/SHRI CHANDRA MOHAN GARG, JUDICIAL AND ARUN KHODPIA, ACCOUNTANT MEMBER ITA No. 172/CTK/2020 Assessment Year : 2014-15 Sandhya Mallick, At: Andhara, Pattamumndai, Dist: Kendrapara Vs. ITO, Ward 2(2), Bhubaneswar. No.AXWPM 2241 A (Appellant) .. ( Respondent Assessee by : Shri K.K.Bal, Advocate Revenue by : Shri Sovesh Chandra Mohanty, Sr Date of Hearing : 02 /3/ 20 Date of Pronouncement : 07/ O R D E R g, JM This is an appeal filed by the assessee against the order of the CIT(A),1, Bhubaneswar dated 24.9.2018 for the assessment year The appeal is time barred by 627 days. The assessee has filed condonation petition dated 5.8.2020 supported by an affidavit sworn by the , wherein, it is stated as under: 1. That the assessee challenged the assessment by filing of appeal before the CIT (A)-I, Bhubaneswar through her authorised representative. While filing of appeal the A/R of the Assessee incorporated his email ID and Mobile number instead the email ID and mobile number of the Assessee in the appeal memo and also opted the option to send the notice on email. Page1 | 8 IN THE INCOME TAX APPELLATE TRIBUNAL, JUDICIAL MEMBER AND ARUN KHODPIA, ACCOUNTANT MEMBER ITO, Ward 2(2), Bhubaneswar. Respondent) K.K.Bal, Advocate Sovesh Chandra Mohanty, Sr (DR) / 2022 /3/2022 This is an appeal filed by the assessee against the order of the for the assessment year 2014-15. The appeal is time barred by 627 days. The assessee has filed supported by an affidavit sworn by the 1. That the assessee challenged the assessment by filing of appeal I, Bhubaneswar through her authorised representative. While filing of appeal the A/R of the Assessee incorporated his email ID and Mobile number instead the email ID and mobile number of the Assessee in the appeal memo and also ITA No. 172/CTK/2020 Assessment Year : 2014-15 Page2 | 8 2. That since the assessee does not know how to access her income tax e-filing account and no hard copy of the order has been served on her, she had no knowledge about the appeal order. It came to her knowledge only when the Assessing officer intimated that your appeal has been dismissed and asked to file compliance to penalty notices issued electronically. 3. That after she was informed about the dismissal of the appeal she immediately contacted her previous A/R and enquired about the status of the appeal, then only the A/R on verification from the income tax site confirmed that the Appeal filed before the CIT (A) has been dismissed. 4. That she withdrew her filed from the previous A/R and engaged the present A/R for fling of appeal against the order of the CIT(A) before the ITAT Cuttack Bench, Cuttack and accordingly the Appeal is filed on today. In this process there is a delay in filing of the Appeal. The delay in filing of Appeal is unintentional and beyond the control of the assessee. 5. That the assessee authorises the counsel with a hope that the counsel placing faith on the legal experience of the counsel with a hope that the counsel shall take care of his/her interest. If there is lapse on the part of the legal counsel the assessee should not be found fault with. It is also the well settled proposition that the mistake on the part of the counsel constitute sufficient cause for the condonation of delay. Further the litigant does not stands to benefit by lodging an appeal late. Therefore there should not be any presumption that the delay is occasioned deliberately on account of culpable negligence or on account of mala fide intention. 6. Therefore it is humbly requested the delay in filing of the Appeal may be condoned and the appeal may be admitted for hearing.” 3. Ld A.R,. of the assessee reiterated the facts stated in the condonation petition and further submitted that against the assessment order, the assessee filed appeal before the ld CIT(A) through her authorized Representative and ld A.R. incorporated his email and mobile number instead of the assessee and opted to make correspondence with him. But ITA No. 172/CTK/2020 Assessment Year : 2014-15 Page3 | 8 there was no correspondence from the side of the department and only when the assessee was informed about the dismissal of the appeal and to file compliance to penalty notices dated 3.6.2020, which was received by the assessee on 10.6.2020, immediately, the assessee engaged a new A.R. to file appeal before the Tribunal against the first appellate order. Ld A.R. stated that due to inaction of the previous A.R., the assessee should not be penalized and requested to condone the delay in filing the appeal before the Tribunal. 4. Ld A.R. submitted that the first appellate order was passed on 24.9.2018 and when the assessee came to know that the order has already been passed and there was no knowledge about the proceedings by the previous A.R., the assessee engaged the present A.R. on 4 th August, 2020, and the appeal was filed on 12 th August, 2020. Ld A.R. also stated that due to the outbreak of pandemic COVID-19, the position was so precarious, therefore, the whole country was in standstill. Ld A.R. submitted that the default was not attributable to the assessee, therefore, the assessee should not be found fault. Ld A.R. submitted that due to above reason, the appeal was filed belatedly and requested to condone the delay. Ld A.R. referred to the various judgments in support of his case: i) judgment of Hon’ble Supreme Court in the case of Collector, Land Acquisition vs Mst Katji Y Ors, 167 ITR 4671 (SC). 2) Order of Third Member, Amritsar Bench in the case of Bhagwati Colonizers Pvt Ltd. Vs ITO IN ita No.169/Asr/2015 o0rder dated 22.10.2019 ITA No. 172/CTK/2020 Assessment Year : 2014-15 Page4 | 8 3) Judgement of Supreme Court in the case of N.Balakrishnan vs Mrs Krishnamurthy order dated 3.9.1998. 4) Judgment of Hon’ble Supreme Court in the case of Senior Bhosale Estate (HUF) VS Asst. Commissioner of Income Tax in Civil Appeal Nos.6677-6690 of 2010 order dated 7.11.2019 Ld A.R. submitted that the Third Member of Amritsar Bench in the case of Bhagwati Colonizers Pvt Ltd(supra) has considered the similar issue, wherein also, due to the inaction of previous authorized representative, appeal was filed belatedly, and condoned the delay. 5. Replying to above, ld Sr DR opposed to the condonation petition and submitted that it is the duty of the assessee to follow with her counsel to know the fate of the appeal proceedings. The assessee has remained silent and now put blame on the previous A.R, which should not be accepted. Ld SR DR submitted that there was no sufficient cause shown by the assessee to condone the delay, hence, the condition petition be rejected. 6. We have heard the rival contentions and perused the material available on record. It is an admitted fact that there has been a delay of 627 days in filing the present appeal. 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 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 cause on her part in not presenting the present appeal within the prescribed ITA No. 172/CTK/2020 Assessment Year : 2014-15 Page5 | 8 time. In the instant case, the ld. CIT(A) has passed ex-parte order. It has come to knowledge of the assessee when the assessee was informed to comply with the penalty notices that the appeal filed before the ld CIT(A) has been rejected. Then at the instance of the assessee, the previous A.R. visited the income tax site and came to the know that the order has already been passed by the ld. CIT(A), vide order dated 24.9.2018 on ex- parte basis. The assessee has not received any notice for hearing of the appeal as well as the order passed by the CIT(A). The assessee was not aware about the passing of CIT(A)'s order. However, as soon as assessee came to know of penalty notices, being issued against her, she consulted present Counsel and on the basis his advice, the present appeal has been filed though with a delay of 627 days. 7. In case of Collector, Land Acquisition vs MST Katiji (Supra), 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 meaningful manner to sub-serves the ends of justice that being the 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 ITA No. 172/CTK/2020 Assessment Year : 2014-15 Page6 | 8 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, the assessee runs a serious risk. 8. In the instant case, applying the same principles, we find that there is no culpable negligence or malafide on the part of the assessee in delayed filing of the present appeal and it 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 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. Another contention raised by ld counsel that due to the outbreak of COVID-19 pandemic in March, 2020, the Hon’ble Supreme Court took Suo Motu cognizance of the difficulties faced by the litigants in filing petitions/ applications/ suits/ appeals/ all other proceedings within the period of limitation prescribed under the general law. ITA No. 172/CTK/2020 Assessment Year : 2014-15 Page7 | 8 9. In the case of Bhagwati Colonizers Pvt Ltd (supra), the Third Member of Amritsar Bench of ITAT has considered the similar issue and due to inaction of the previous A.R., and held that the delay in filing should be condoned. We observe that the finding plausible reason to file the appeal delayed, we condone the delay in filing the appeal and admitted the same for adjudication. 10. Having heard the rival submissions and perused the materials available on record, we are of the view that the order was passed exparte without considering the submissions of the assessee. Hence, the assessee was not provided proper opportunity to putforth her case. Therefore, there is merit in the submissions of the assessee. The assessee has been cheated by the ld. Counsel/ld. AR and therefore the assessee has submitted that the assessee in the instant case has not got the natural justice and therefore we are of the view that the assessee should not suffer because of gross negligence of the ld. AR. Therefore we remit the case back to the file of the ld. CIT(A) to decide the appeal afresh after giving an opportunity of being heard to the assessee. 10. In the result, appeal of the assessee is treated as allowed for statistical purposes. Order pronounced on 07 /3/2022. Sd/- sd/- (Arun Khodpia) (Chandra Mohan Garg) ACCOUNTANT MEMBER JUDICIAL MEMBER Cuttack; Dated 7 /03/2022 ITA No. 172/CTK/2020 Assessment Year : 2014-15 Page8 | 8 B.K.Parida, SPS (OS) Copy of the Order forwarded to : By order Sr.Pvt.secretary ITAT, Cuttack 1. The Appellant : Sandhya Mallick, At: Andhara, Pattamumndai, Dist: Kendrapara 2. The Respondent. ITO, Ward 2(2), Bhubaneswar. 3. The CIT(A)-1, Bhubaneswar 4. Pr.CIT-1, Bhubaneswar 5. DR, ITAT, Cuttack 6. Guard file. //True Copy//