2010 (9) TMI 696 - AT - Income Tax

Condonation of delay - Appeals were filed belatedly by three months and two days - It is not disputed by the revenue that the service of the assessment order was made by the AO only by way of affixture - Thus, the question arises whether the service through affixture only is a proper service in the absence of exhausting other mode of services by the AO - Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purposes of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall direct to serve in any other mode as it thinks fit - It is settled law that while condoning the delay, the court should take a lenient view - Appeal of the assessee is allowed for statistical purpose

Summary

Issues:
- Whether the delay in filing appeals was justified and should be condoned.

Analysis:
The judgment by the Appellate Tribunal ITAT, Mumbai involved two sets of appeals by the assessee against composite orders of CIT(A) for individual and HUF assessment years. The main issue in all appeals was the justification for the delay in filing the appeals and whether it should be condoned. The CIT(A) had held that the appeals were filed belatedly by three months and two days and refused to condone the delay.

The assessee had challenged the assessment orders by filing appeals before the CIT(A), claiming the appeals were filed in time as the assessment orders were served on the assessee on 22.04.2009. However, the CIT(A) refused to condone the delay, stating that the service of the assessment order was made through affixture on 19.01.2009, and the assessee was in India on that date. The CIT(A) held that the delay was due to the negligence of the assessee.

The Tribunal examined the provisions of section 282 of the Income Tax Act, 1961, which specifies the modes of service of notice or order. It was noted that the service through affixture should be a last resort when other modes of service have been exhausted. In this case, the AO had not attempted other modes of service before resorting to affixture. The Tribunal found that the assessee had provided a valid explanation for not filing the appeals within the limitation period, as they did not receive the assessment order promptly.

The Tribunal emphasized that while condoning the delay, a lenient view should be taken, especially when the reasons for delay are genuine and not mala fide. It was highlighted that substantial justice should prevail over technical considerations. Therefore, the Tribunal decided to condone the delay of 92 days in filing the appeals and remitted the matter back to the CIT(A) for a decision on the merits.

In conclusion, the appeals of the assessee were allowed for statistical purposes, emphasizing the importance of considering genuine reasons for delay and prioritizing substantial justice in legal proceedings.