2017 (1) TMI 1324 - AT - Income Tax

Condonation of the delay of 263 days - Ill health of advocate - Held that - The reason attributed by the assessee cannot be said to be unreasonable. Primarily, the assessee does not stand to gain by filing this appeal with any delay. Further, the medical record and the death certificate filed by the assessee lends any amount of support to his contention. It is the settled principles of law in Collector of Land Acquisition vs Mst Katiji & Others 1987 (2) TMI 61 - SUPREME Court ) that when the question of delivery of substantial justice is spitted against the technical consideration, the later must give way to the former and the adjudicating authorities cannot take a pedantic view while dealing with this sort of matters. While respectfully following the ratio of the above decision, we hold that it is a fit case to condone the delay and to receive the appeal for consideration on merits. Point no. 1is answered in favour of the assessee. Dismissing the appeal on the withdrawal of the same by the assessee - Held that - When the appeal was dismissed as withdrawn at the instance of the assessee, it is not open for the assessee to take a turnaround and to contend that the dismissal of the appeal by the Ld. CIT(A) is without any jurisdiction. While respectfully following the judicial reasoning delineated above, we hold that it is a fit case to set aside the matter to the file of the Ld. CIT(A) to give a fresh disposal thereof according to law after affording reasonable opportunity of being heard to the assessee. We order accordingly.

Summary

Issues:
1. Condonation of delay in filing the appeal.
2. Justification of the dismissal of the appeal by the Ld. CIT(A) based on withdrawal by the assessee.

Issue 1 - Condonation of Delay:
The appeal arose from an order by the CIT(A)-XXXII, Kolkata for AY 2008-09. The assessee filed a return of income declaring ?25,95,554/-, which was later scrutinized by the AO resulting in an assessment of ?2,93,796/-. The assessee then sought to withdraw the appeal before the Ld. CIT(A) but later decided to approach the ITAT. The delay of 263 days in filing the appeal was attributed to the illness and subsequent demise of the advocate handling the case. The ITAT, following legal precedent, held that substantial justice must prevail over technicalities, thus condoning the delay and accepting the appeal for consideration on merits.

Issue 2 - Dismissal of Appeal by Ld. CIT(A) on Withdrawal:
The Ld. CIT(A) dismissed the appeal after the assessee, under mistaken advice, sought withdrawal. The Ld. AR argued that despite the withdrawal request, the Ld. CIT(A) should have proceeded on the merits of the case to determine the just tax liability. Legal arguments were presented citing precedents emphasizing that once an appeal is filed, the judicial process must continue, and withdrawal cannot be allowed without due consideration of the merits. The ITAT, in line with legal principles, set aside the matter to the file of the Ld. CIT(A) for a fresh disposal according to law after affording the assessee a reasonable opportunity to be heard. The appeal was allowed for statistical purposes.

In conclusion, the ITAT Kolkata addressed the issues of delay condonation and the dismissal of the appeal by the Ld. CIT(A) based on withdrawal, ensuring that the principles of justice and legal precedents were upheld in the decision-making process.