LOUELLA MARIA ALBUQUERQUE,MANGALORE V. INCOME TAX OFFICER, WARD-2(5), MANGALORE

ITA 2487/BANG/2024

AI Insights

Louella Maria Albuquerque, a senior citizen and housewife, appealed against the order of the CIT(A)/NFAC for the assessment year 2014-15, which was initially dismissed due to non-compliance and non-prosecution. The Tribunal noted the delay in filing the appeal and considered the circumstances leading to the delay, including the assessee's lack of access to communications post her husband's death. The Tribunal emphasized the principles of substantial justice over technicalities, leading to the condonation of the delay and remittance of the case for a fresh hearing.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 126103 (ITAT-BANGALORE)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-04-2025
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Other Referred Cases: Collector, Land Acquisition v. Mst. Katiji and Ors. (167 ITR 471), People Education & Economic Development Society Vs/ ITO (100 ITD 87 (TM) (Chen)), CIT vs. K.S.P. Shanmugavel Nadai and Ors. (153 ITR 596), People Education and Economic Development Society (PEEDS) v. ITO (100 ITD 87) (Chennai) (TM)
• Laws Referred To: Income Tax Act
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NEHA SAHAY
• Assessee Lawyers: SRINIVAS KAMATH
• Keywords: Condonation of delay; Opportunity of being heard; Reasonable cause; Period of limitation
• Section: 250; 64

Judgement Text

"ITA No.2487/Bang/2024 Louella Maria Albuquerque, Mangalore IN THE INCOME TAX APPELLATE TRIBUNAL “A’’BENCH: BANGALORE BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SHRI KESHAV DUBEY, JUDICIAL MEMBER ITA No.2487/Bang/2024 AssessmentYear:2014-15 Louella Maria Albuquerque D.No.20-10-1110, Rosario Church Road Pandeshwar Mangalore 575 001 India PAN NO : ACYPA3962D Vs. ITO Ward-2(5) Mangalore APPELLANT RESPONDENT Appellant by : Sri Srinivas Kamath, A.R. Respondent by : Ms. Neha Sahay, D.R. Date of Hearing : 16.04.2025 Date of Pronouncement : 21.04.2025 O R D E R PER KESHAV DUBEY, JUDICIAL MEMBER: This appeal at the instance of the assessee is directed against the order of ld. CIT(A)/NFAC dated 31.8.2023 vide DIN & order No.ITBA/NFAC/S/250/2023-24/1055634622(1) passed u/s 250 of the Income Tax Act, (in short “The Act) for the AY 2014-15. 2. The assessee has raised the following grounds of appeal: ITA No.2487/Bang/2024 Louella Maria Albuquerque, Mangalore Page 2 of 11 3. As submitted by the AR of the assessee, there is a delay of 416 days in filing the appeal before this Tribunal. The ld. Counsel ITA No.2487/Bang/2024 Louella Maria Albuquerque, Mangalore Page 3 of 11 for the assessee drew our attention on the petition for condonation of delay along with an affidavit in original dated 18.2.2025 of the assessee, which are reproduced below for ease of reference and record: ITA No.2487/Bang/2024 Louella Maria Albuquerque, Mangalore Page 4 of 11 ITA No.2487/Bang/2024 Louella Maria Albuquerque, Mangalore Page 5 of 11 ITA No.2487/Bang/2024 Louella Maria Albuquerque, Mangalore Page 6 of 11 ITA No.2487/Bang/2024 Louella Maria Albuquerque, Mangalore Page 7 of 11 4. The ld. A.R. submitted that the delay is unintentional and no benefit can be attributed to the assessee in filing the appeal belatedly. He thus prayed for condonation of the delay and requested to consider the issues raised by the assessee on merits. 5. On the contrary the ld. D.R. vehemently objected for granting the condonation of delay and submitted that the assessee had neither appeared before the AO nor before the ld. CIT(A)/NFAC which clearly demonstrate the careless attitude of the assessee. 6. We have perused the details filed by the assessee to justify the delay and we are satisfied that there is no malafide intention on the part of the assessee in filing the appeal belatedly before us. It is to be noted that u/s 253(5) of the Act, the Tribunal may admit the appeal filed beyond the period of limitation where it has established that there exists a sufficient cause on the part of the assessee for not presenting the appeals within the prescribed time. The explanation therefore, becomes relevant to determine whether the same reflect sufficient and reasonable cause on the part of the assessee in not filing these appeals within the prescribed time. On going through the affidavit as above, we find that the assessee could not file the appeal in time as the assessee being an senior citizen & house wife was not at all aware of the income tax procedures & technical issues of Income Tax Portal. Further her husband who was handling her income tax matters expired due to covid-19 on 14-08-2021 & all the notices were also sent to the email address of her late husband. In view of the above, we are of the opinion that there exists a sufficient cause on the part of the assessee for not presenting the appeal within the prescribed time. ITA No.2487/Bang/2024 Louella Maria Albuquerque, Mangalore Page 8 of 11 6.1 While considering a similar issue the Apex Court in the case of Collector, Land Acquisition v. Mst. Katiji and Ors. (167 ITR 471) laid down six principles. For the purpose of convenience, the principles laid down by the Apex Court are reproduced hereunder: (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 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, commonsense and pragmatic manner. (4) When substantial justice and technical consideration 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 nondeliberate 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 the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 6.2 When substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right for injustice being done because of non deliberate delay. Therefore, we have to prefer substantial justice rather than technicality in deciding the issue. As observed by Apex Court, if the application of the assessee for condoning the delay is rejected, it would amount to legalize injustice on technical ground when the Tribunal is ITA No.2487/Bang/2024 Louella Maria Albuquerque, Mangalore Page 9 of 11 capable of removing injustice and to do justice. Therefore, this Tribunal is bound to remove the injustice by condoning the delay on technicalities. If the delay is not condoned, it would amount to legalizing an illegal order which would result in unjust enrichment on the part of the State by retaining the tax relatable thereto. Under the scheme of Constitution, the Government cannot retain even a single pie of the individual citizen as tax, when it is not authorized by an authority of law. Therefore, if we refuse to condone the delay, that would amount to legalize an illegal and unconstitutional order passed by the lower authority. 6.3 Further, in the case of People Education & Economic Development Society Vs/ ITO reported in 100 ITD 87 (TM) (Chen), wherein held that “when substantial justice and technical consultation 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 non-deliberate delay”. 6.4 The next question may arise whether delay was excessive or inordinate. There is no question of any excessive or inordinate when the reason stated by the assessee was a reasonable cause for not filing the appeal. We have to see the cause for the delay. When there was a reasonable cause, the period of delay may not be relevant factor. In fact, the Madras High Court in the case of CIT vs. K.S.P. Shanmugavel Nadai and Ors. (153 ITR 596) considered the condonation of delay and held that there was sufficient and reasonable cause on the part of the assessee for not filing the appeal within the period of limitation. Accordingly, the Madras High Court condoned nearly 21 years of delay in filing the appeal. When compared to 21 years, 416 days cannot be considered to be inordinate or excessive. Furthermore, the Chennai Tribunal by ITA No.2487/Bang/2024 Louella Maria Albuquerque, Mangalore Page 10 of 11 majority opinion in the case of People Education and Economic Development Society (PEEDS) v. ITO (100 ITD 87) (Chennai) (TM) condoned more than six hundred days delay. Therefore, in our opinion, by preferring the substantial justice, the delay of 416 days has to be condoned and accordingly we condone the delay and admit the appeal for adjudication. 7. Now coming facts of the case are that the assessee is a house wife and senior citizen aged 64 years deriving income from rent, bank interest and agriculture. As stated in her affidavit, the income tax matters were handled by her late husband and all the notices related to faceless appeal were sent to the e-mail address of her late husband and the assessee did not have any access to it and therefore, she was completely unaware of the notices sent by ld. CIT(A)/NFAC and accordingly she could not appear before the ld. CIT(A)/NFAC. Further, the ld. CIT(A)/NFAC dismissed the appeal of the assessee on the ground that the assessee did not submit any response to communications dated 23.1.2021, 19.4.2023, 23.6.2023 and 16.8.2023. Hence, in view of the aforesaid non-compliance/non-prosecution, the appeal was disposed of ex-parte on the basis of documents/details available on record. 8. We have heard the rival submissions and perused the materials available on record. On going through the affidavit sworn before the Notary dated 18.2.2025, the assessee as stated in her affidavit that the income tax matters were handled by her late husband and all the notices related to faceless appeal were sent to the e-mail address of her late husband and the assessee did not have any access to it and therefore, she was completely unaware of the notices sent by ld. CIT(A)/NFAC and accordingly she could not appear before the ld. CIT(A)/NFAC. This being so, we are of the considered opinion that in the interest of justice and fair play and ITA No.2487/Bang/2024 Louella Maria Albuquerque, Mangalore Page 11 of 11 as requested by the ld. A.R. of the assessee, the entire issues in dispute are remitted back to the file of ld. CIT(A)/NFAC for fresh consideration in accordance with the law. Needless to say, a reasonable opportunity of being heard must be granted to the assessee. The assessee is also directed to update her e-mail ID/Contact number and address on the income tax web portal and cooperate with the proceedings before the first appellate authority. The assessee is also directed to submit all the relevant documents/records/evidences/information as called for in order to substantiate her claim. It is ordered accordingly. 9. In the result, appeal filed by the assessee is partly allowed for statistical purposes. Order pronounced in the open court on 21st Apr, 2025 Sd/- (Waseem Ahmed) Accountant Member Sd/- (Keshav Dubey) Judicial Member Bangalore, Dated 21st Apr, 2025. VG/SPS Copy to: 1. The Applicant 2. The Respondent 3. The CIT 4. The DR, ITAT, Bangalore. 5 Guard file By order Asst. Registrar, ITAT, Bangalore. "