Shri Kizhakkepoovatheril Samuel John, Nashik V. ITO, Ward 1(3), Nashik, Nashik

ITA 403/PUN/2022

AI Insights

The case involves Shri Kizhakkepoovatheril Samuel John, the appellant, who contested the order of the Income Tax Officer, Ward \\u2013 1(3), Nashik, which assessed his income for the year 2010-11 significantly higher than declared. The appellant faced a delay of 936 days in filing an appeal against this order, attributed to negligence by his tax consultant. The NFAC, Delhi, initially dismissed the appeal due to this delay, finding the reasons provided by the assessee insufficient. However, the Tribunal in Pune, considering the circumstances and the principles of justice, decided to remand the case back to NFAC with directions to condone the delay and re-evaluate the case on its merits.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 132832 (ITAT-PUNE)
• Duration Of Justice: 7 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-01-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 11-01-2023
• Assessment Year: 2010-2011
• Appeal Filed On: 23-05-2022
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SANKET M. JOSHI; WAY OF NOTARIZED AFFIDAVIT
• Keywords: Condonation of delay
• Section: 40A(3)

Judgement Text

आयकर अपीलीय अधिकरण “ए” न्यायपीठ पुणे में । IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, PUNE BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER आयकर अपील सं. / ITA No.403/PUN/2022 धििाारण वर्ा / Assessment Year : 2010-11 Shri Kizhakkepoovatheril Samuel John, Flat No. 21, Jaikrishna Apartment, Rest Camp Road, Deolali Camp, Nashik – 422101 PAN : ADWPJ8186D .......अपीलार्थी / Appellant बिाम / V/s. The Income Tax Officer, Ward – 1(3), Nashik ......प्रत्यर्थी / Respondent Assessee by : Shri Sanket M. Joshi Revenue by : Shri Ramnath P. Murkunde सुनवाई की तारीख / Date of Hearing : 12-01-2023 घोषणा की तारीख / Date of Pronouncement : 13-01-2023 आदेश / ORDER PER S.S. VISWANETHRA RAVI, JM : This appeal by the assessee against the order dated 28-09-2021 passed by the National Faceless Appeal Centre (“NFAC”), Delhi for assessment year 2010-11. 2 ITA No.403/PUN/2022, A.Y. 2010-11 2. We note that the Registry issued defect memo to the assessee stating to file delay condonation application. The assessee complied by placing reliance in the case of Cognizance for extension of limitation passed by the Hon’ble Supreme Court during Covid outbreak. Therefore, the delay as caused during the said period is saved by the limitation. 3. The assessee raised three grounds of appeal amongst which the only issue emanates for our consideration is as to whether the NFAC, Delhi justified in not condoning the delay of 936 days in the facts and circumstances of the case. 4. We note that the AO determined the total income of the assessee at Rs.13,73,470/- against the total income declared by the assessee at Rs.5,37,170/- inter alia making disallowance u/s. 40A(3) of the Act vide order dated 23-03-2015. The assessee challenged the said order of the AO before the NFAC, Delhi with a delay of 936 days. The assessee also filed delay condonation petition stating reasons for not filing the appeal in time vide application and also notarized affidavit dated 27-08-2021. On perusal of the application and notarized affidavit which are at pages 1 to 8 of the paper book, we note the assessee engaged Tax Consultant by name Dnyaneshwar Kadam at Nashik for filing appeal in the First Appellate Authority after the receipt of order passed by the AO, but however, no such appeal was filed by the said ITP and started avoiding the assessee while follow up with the said ITP. The assessee came to know that no appeal was filed by the ITP, approached another Tax Consultant towards the end of September, 2017. As it appears from the record that the said new 3 ITA No.403/PUN/2022, A.Y. 2010-11 Consultant filed the appeal before NFAC, Delhi, but however, NFAC, Delhi found the reasons explained by the assessee are not reasonable and dismissed the appeal in limine. 5. The ld. AR submits before us that the addition made by the AO u/s. 40A(3) of the Act is not justified and the assessee has fair chance of succeeding before NFAC, Delhi and prayed to remand the matter to the file of NFAC, Delhi with a direction to condone the delay. We note that the assessee filed delay condonation application before NFAC, Delhi /CIT(A) stating the reasons which caused delay in filing the appeal in time. The said reasons were affirmed by the assessee by way of notarized affidavit which is at pages 5 to 8 of the paper book. The NFAC, Delhi was of the opinion that the explanation as offered was not reasonable. We note that an overall view in the larger interest of justice has to be taken in the matter of condonation of delay and none should be deprived on an adjudication on merits unless the authorities finds that the assessee has deliberately and intentionally delayed filing of the appeal. Further, the authorities below finds the assessee is careless, negligent and its conduct is lacking in bonafide then the authorities is justified in not condoning the delay. In the present case, the assessee deposed by way of an affidavit the circumstances which led to file the appeal with delay. Further, we also note that the assessee has fair case on merits of the issue raised before the NFAC, Delhi. In view of the same, we are of the opinion that the NFAC, Delhi ought to have condoned the delay of 936 days and decide the issue on merits. Taking into peculiar circumstances of the case, we deem it proper to remand the matter to the file of NFAC, Delhi with a direction to 4 ITA No.403/PUN/2022, A.Y. 2010-11 condone the delay of 936 days and adjudicate the issue on merits and pass the order, in accordance with law. The assessee is liberty to file evidence, if any, in support of its claim. Thus, the grounds raised by the assessee are allowed for statistical purpose. 6. In the result, the appeal of assessee is allowed for statistical purpose. Order pronounced in the open court on 13 th January, 2023. Sd/- Sd/- (Inturi Rama Rao) (S.S. Viswanethra Ravi) ACCOUNTANT MEMBER JUDICIAL MEMBER पुणे / Pune; दिनाांक / Dated : 13 th January, 2023. रदव आदेश की प्रधिधलधप अग्रेधर्ि / Copy of the Order forwarded to : 1. अपीलार्थी / The Appellant. 2. प्रत्यर्थी / The Respondent. 3. The CIT(A), NFAC, Delhi. 4. The CIT concerned. 5. दवभागीय प्रदतदनदि, आयकर अपीलीय अदिकरण, “ए” बेंच, पुणे / DR, ITAT, “A” Bench, Pune. 6. गार्ड फ़ाइल / Guard File. //सत्यादपत प्रदत// True Copy// आिेशानुसार / BY ORDER, वररष्ठ दनजी सदचव / Sr. Private Secretary आयकर अपीलीय अदिकरण ,पुणे / ITAT, Pune