FIRST GLOBAL STOCKBROKING PVT LTD, VASHI, NAVI MUMBAI V. DY. COMMISSIONER OF INCOME TAX 4(1) (1), AAYEKAR BHAVAN MUMBAI

ITA 1787/MUM/2024

• Counselvise Citation: [2024] 130 COUNSELVISE.COM (IT) 5557 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-08-2024
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: F
• Next Hearing Date: 07-07-2024
• Assessment Year: 2012-2013
• Appeal Filed On: 08-04-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESHWARI MENON
• Keywords: Opportunity of being heard; Period of limitation; Time period of passing order; Condonation of delay; Bonafide mistake; Set aside
• Section: 40(a)(ia)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “F” MUMBAI BEFORE SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) AND SHRI SUNIL KUMAR SINGH (JUDICIAL MEMBER) ITA No. 1787/MUM/2024 Assessment Year: 2012-13 First Global Stockbroking Pvt. Ltd., Ratnam Square, Plot No. 38/39, Sector 19A, Maharashtra-400703. Vs. Dy. CIT 4(1)(1), Aayakar Bhavan, M.K. Road, Mumbai-400001. PAN NO. AAACF 0661 K Appellant Respondent Assessee by : Mr. Satish Mody Revenue by : Ms. Rajeshwari Menon, Sr. DR Date of Hearing : 08/07/2024 Date of pronouncement : 19/08/2024 ORDER PER OM PRAKASH KANT, AM This appeal by the assessee is directed against order dated 09.02.2024 passed by the Ld. Commissioner of Income-tax (Appeals) – National Faceless Appeal Centre, Delhi [in short ‘the Ld. CIT(A)’] for assessment year 2012-13, raising following ground: 1. The Ld. Assessing Officer has erred in disallowing an amount of Rs.8,31,107/- u/s 40(a)(ia) of the I.T. Act, 1961. 2. At the outset, the Ld. counsel for the assessee submitted that the Ld. CIT(A) has declined to condone the delay of 1136 days in filing appeal before him and accordingly he rejected the appeal as un-admitted in limine an affidavit filed by the Director of the assessee company Shri Niraj Khanna, wherein he has deposed order the staff was directed to prepare and file the appeal as was done in earlier years, however as well as he omitted to file the appeal before the Ld. CIT(A) receipt of subsequent order of the Ld. CIT(A) dated 23.10.201 assessment year 2011 for assessment year 2012 filed. Shri Niraj Khanna further submitted that on realizing the mistake , appeal was immediately filed before the Ld. CIT(A) on 10.12.2018 with the request to condone 3. On the other hand, the opposed and submitted that sufficient cause for condonation of delay justified in rejecting the appeal as un 4. We have heard rival submission of relevant material on record. The limitation period for filing in appeal before Ld. CIT(A) u/s 249(2) of the Income ‘the Act’) is of 30 days, but the section 249(3) of the Act emp the Ld. CIT(A) to condone First Global At the outset, the Ld. counsel for the assessee submitted that the Ld. CIT(A) has declined to condone the delay of 1136 days in before him and accordingly he rejected the appeal as ne. The Ld. counsel for the assessee an affidavit filed by the Director of the assessee company Shri Niraj , wherein he has deposed that on receipt of the assessment order the staff was directed to prepare and file the appeal as was done in earlier years, however, inadvertently due oversight as well as he omitted to file the appeal before the Ld. CIT(A) of subsequent order of the Ld. CIT(A) dated 23.10.201 assessment year 2011-12, the assessee came to know that appeal for assessment year 2012-13 was required to be file filed. Shri Niraj Khanna further submitted that on realizing the appeal was immediately filed before the Ld. CIT(A) on 018 with the request to condone the delay of 1136 days. On the other hand, the Ld. Departmental Representative (DR) and submitted that assessee has not justified any sufficient cause for condonation of delay, therefore, the Ld. CIT(A) is justified in rejecting the appeal as un-admitted. We have heard rival submission of the parties and perused the relevant material on record. The limitation period for filing in appeal before Ld. CIT(A) u/s 249(2) of the Income-tax Act, 1961 (in short ‘the Act’) is of 30 days, but the section 249(3) of the Act emp ndone the delay if he is satisfied that assessee First Global Stockbroking Pvt. Ltd 2 ITA No. 1787/MUM/2024 At the outset, the Ld. counsel for the assessee submitted that the Ld. CIT(A) has declined to condone the delay of 1136 days in before him and accordingly he rejected the appeal as . The Ld. counsel for the assessee referred to an affidavit filed by the Director of the assessee company Shri Niraj that on receipt of the assessment order the staff was directed to prepare and file the appeal as was due oversight, the staff as well as he omitted to file the appeal before the Ld. CIT(A) and on of subsequent order of the Ld. CIT(A) dated 23.10.2018 for he assessee came to know that appeal was required to be filed but was not filed. Shri Niraj Khanna further submitted that on realizing the appeal was immediately filed before the Ld. CIT(A) on the delay of 1136 days. Ld. Departmental Representative (DR) assessee has not justified any therefore, the Ld. CIT(A) is the parties and perused the relevant material on record. The limitation period for filing in appeal tax Act, 1961 (in short ‘the Act’) is of 30 days, but the section 249(3) of the Act empowers satisfied that assessee had sufficient cause for not presenting the appeal within the limitation period. For evaluating sufficiency of cause condonation of delay, the Hon’ble Supreme Court in the case of Collector of Land Acqui (SC) has laid down following six principles: (i) Ordinarily, a litigant does not stand to benefit by lodging an appeal late. (ii) Refusing to condone delay can result in a meritorious matter being thrown out at 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. (iii) "Every day's delay must be explained" does not mean should be taken. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common (iv) When substantial justice and technical considerations are pitted against each othe 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 (v) 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. (vi) 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." 4.1 We find that assessee in the instant case has filed an affidavit to support his contention that earlier years however due to for the year under consideration. has not filed any counter affidavit against the contention of the affidavit filed by the assessee. The Co Tribunal in the case o ITD 11 has condoned the delay for one of the reason that Revenue First Global had sufficient cause for not presenting the appeal within the limitation period. For evaluating sufficiency of cause condonation of delay, the Hon’ble Supreme Court in the case of Collector of Land Acquisition v. Katiji AIR (1987) has laid down following six principles: Ordinarily, a litigant does not stand to benefit by lodging an appeal late. Refusing to condone delay can result in a meritorious matter being thrown out at 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. "Every day's delay must be explained" does not mean that a pedantic approach should be taken. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common-sense pragmatic manner. When substantial justice and technical considerations are pitted against each othe 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. 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. It must be grasped that judiciary is respected not on account of its power to legalize ical grounds but because it is capable of removing injustice and is We find that assessee in the instant case has filed an affidavit to support his contention that on same issue appeals were filed in however due to bonafide mistake omitted to file for the year under consideration. We note that Revenue Department has not filed any counter affidavit against the contention of the affidavit filed by the assessee. The Co-ordinate Bench of the Tribunal in the case of Bajaj Hindustan Ltd. v. JCIT (2005) 92 has condoned the delay for one of the reason that Revenue First Global Stockbroking Pvt. Ltd 3 ITA No. 1787/MUM/2024 had sufficient cause for not presenting the appeal within the limitation period. For evaluating sufficiency of cause for condonation of delay, the Hon’ble Supreme Court in the case of tion v. Katiji AIR (1987) 167 ITR 471 Ordinarily, a litigant does not stand to benefit by lodging an appeal late. 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 that a pedantic approach should be taken. Why not every hour's delay, every second's delay? The doctrine 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 deliberate delay. 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 It must be grasped that judiciary is respected not on account of its power to legalize ical grounds but because it is capable of removing injustice and is We find that assessee in the instant case has filed an affidavit same issue appeals were filed in mistake omitted to file appeal Revenue Department has not filed any counter affidavit against the contention of the ordinate Bench of the Bajaj Hindustan Ltd. v. JCIT (2005) 92 has condoned the delay for one of the reason that Revenue had not filed any counter affidavit opposing the application for condonation of the delay. The Hon’ble Supreme Court in the case of Sandhya Rani Sarkar v. Sudha Rani Debi AIR 1978 SC 537 that non-filing of affidavit in opposition to an application for condonation of the delay may be sufficient cause for condonation of the delay. The Coordinate bench of Hindustan Ltd. (supra) days. The Hon’ble Madras High Court in the case of Charitable Trust v Dy. CIT 357 held that in order to advance prime importance, the expression "sufficient cause" should receive a liberal interpretation. Kathpaliya v. Lakhmir Singh AIR 1984 SC 1744 refusal to condone the delay results in gr thus it would be a ground to condo Supreme court in the case of (2008) 312 ITR 193 (Bombay) cause' will always have relevancy to reasona which can be condoned by Court and it should fall within realm of normal human conduct or normal conduct of a litigant of Concord of India Insurance Co. Ltd. v. Smt. Nirmala Devi (1979) 118 ITR 507 (SC) to be looked into is whether there is any taint of mala fide or element of recklessness or ruse and if neither is present, legal advice honestly sought and actually given, must be treated as First Global had not filed any counter affidavit opposing the application for condonation of the delay. The Hon’ble Supreme Court in the case of Sarkar v. Sudha Rani Debi AIR 1978 SC 537 filing of affidavit in opposition to an application for condonation of the delay may be sufficient cause for condonation of Coordinate bench of Tribunal in the case of Bajaj Ltd. (supra), accordingly, condoned the more days. The Hon’ble Madras High Court in the case of Charitable Trust v Dy. CIT [2006] 154 Taxman 377/280 ITR held that in order to advance substantial justice which is of prime importance, the expression "sufficient cause" should receive a . The Hon’ble Supreme Court in the case of Kathpaliya v. Lakhmir Singh AIR 1984 SC 1744 refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condoning the delay. The Hon’ble Supreme court in the case of Ornate Traders (P.) Ltd. v. ITO (2008) 312 ITR 193 (Bombay) held that expression 'sufficient cause' will always have relevancy to reasonableness and actions, which can be condoned by Court and it should fall within realm of normal human conduct or normal conduct of a litigant Concord of India Insurance Co. Ltd. v. Smt. Nirmala Devi (1979) 118 ITR 507 (SC) Hon’ble Supreme Court held that what is to be looked into is whether there is any taint of mala fide or element of recklessness or ruse and if neither is present, legal advice honestly sought and actually given, must be treated as First Global Stockbroking Pvt. Ltd 4 ITA No. 1787/MUM/2024 had not filed any counter affidavit opposing the application for condonation of the delay. The Hon’ble Supreme Court in the case of Sarkar v. Sudha Rani Debi AIR 1978 SC 537 held filing of affidavit in opposition to an application for condonation of the delay may be sufficient cause for condonation of Tribunal in the case of Bajaj the more than 180 days. The Hon’ble Madras High Court in the case of Sreenivas [2006] 154 Taxman 377/280 ITR stice which is of prime importance, the expression "sufficient cause" should receive a The Hon’ble Supreme Court in the case of OP Kathpaliya v. Lakhmir Singh AIR 1984 SC 1744 has held that ave miscarriage of justice, the delay. The Hon’ble Ornate Traders (P.) Ltd. v. ITO expression 'sufficient bleness and actions, which can be condoned by Court and it should fall within realm of normal human conduct or normal conduct of a litigant. In the case Concord of India Insurance Co. Ltd. v. Smt. Nirmala Devi Hon’ble Supreme Court held that what is to be looked into is whether there is any taint of mala fide or element of recklessness or ruse and if neither is present, legal advice honestly sought and actually given, must be treated as sufficient cause for cond Court in the case of SC 1201 held that by explanation furnished by the assessee for condonation of delay should not be rejected points of law on merits and refusal cause erroneous loss and irreparable injury to the aggrieved party by terminating lis at the inception 4.2 The object of prescribing the time period is to expedite the proceedings advance cause of the substantial justice decisions referred above and uncontroverted a assessee, we feel it appropriate to condone the delay in filing the appeal before the ld. counsel for the assessee has filed order of the Co the Tribunal on the merit of the issue involved, h the fact that the Ld. CIT(A) has not adjudicated on the merit therefore, we restrain ourselves in respect of merit of the case. Accordingly, the finding of the Ld. CIT(A) is set aside and matter is restored back to him for passing order afresh accordance with law. Needless to mention that the First Appellate Authority shall ensure adequate opportunity of being heard to the assessee. First Global sufficient cause for condoning the delay. The Hon’ble Supreme Court in the case of Ram Nath Sao v. Gobardhan Sao, AIR 2002 held that by taking a pedantic or hyper-technical explanation furnished by the assessee for condonation of delay should not be rejected particularly where assessee had points of law on merits and refusal for condonation of delay will cause erroneous loss and irreparable injury to the aggrieved party at the inception. The object of prescribing the time period for filing of the appeal proceedings before the concerned authorities advance cause of the substantial justice. In view of ratio of the decisions referred above and uncontroverted affidavit filed by the e feel it appropriate to condone the delay in filing the ld. First Appellate Authority. Though the Ld. counsel for the assessee has filed order of the Co-ordinate Bench of he merit of the issue involved, however, in view the fact that the Ld. CIT(A) has not adjudicated on the merit therefore, we restrain ourselves in respect of merit of the case. Accordingly, the finding of the Ld. CIT(A) is set aside and matter is restored back to him for passing order afresh accordance with law. Needless to mention that the First Appellate Authority shall ensure adequate opportunity of being heard to the First Global Stockbroking Pvt. Ltd 5 ITA No. 1787/MUM/2024 oning the delay. The Hon’ble Supreme Ram Nath Sao v. Gobardhan Sao, AIR 2002 technical view, the explanation furnished by the assessee for condonation of delay where assessee had arguable condonation of delay will cause erroneous loss and irreparable injury to the aggrieved party filing of the appeal before the concerned authorities and view of ratio of the ffidavit filed by the e feel it appropriate to condone the delay in filing the First Appellate Authority. Though the Ld. ordinate Bench of owever, in view of the fact that the Ld. CIT(A) has not adjudicated on the merit, therefore, we restrain ourselves in respect of merit of the case. Accordingly, the finding of the Ld. CIT(A) is set aside and matter is restored back to him for passing order afresh on merit in accordance with law. Needless to mention that the First Appellate Authority shall ensure adequate opportunity of being heard to the 5. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the o Sd/- (SUNIL KUMAR SINGH JUDICIAL MEMBER Mumbai; Dated: 19/08/2024 Rahul Sharma, Sr. P.S. Copy of the Order forwarded to 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. //True Copy// First Global In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open Court on 19/08/2024. Sd/ (SUNIL KUMAR SINGH) (OM PRAKASH KANT JUDICIAL MEMBER ACCOUNTANT MEMBER Copy of the Order forwarded to : BY ORDER, (Assistant Registrar) ITAT, Mumbai First Global Stockbroking Pvt. Ltd 6 ITA No. 1787/MUM/2024 In the result, the appeal of the assessee is allowed for /08/2024. Sd/- OM PRAKASH KANT) ACCOUNTANT MEMBER BY ORDER, (Assistant Registrar) ITAT, Mumbai