2021 (1) TMI 277 - AT - Income Tax

Dismissal of appeal of the Assessee on non-prosecution - Condonation of delay - delay of 124 days in filling of the instant appeal - HELD THAT - We have perused the affidavit filed by the previous counsel of the assessee who deposed that though appeal was prepared and appeal papers have been handed over to his Assistant for deposit of appeal Fee and filling before ITAT, Amritsar after getting signed by the assessee, however due to complete oversight, the same could not been done and ultimately filed belatedly though local Counsel Sh. Padam Behal Ld. C.A. and consequently resulted into delay of 124 days. The Assessee has demonstrated the bonafide reasons and sufficient cause for non-filling of the appeal within the time limit. The contention of the assessee is supported by the affidavit of the previous counsel and even we could not find any material contrary and/or adverse to the claim of the assessee, therefore explanation offered and cause shown qua delay of 124 days in filling of the instant appeal seems to be bonafide, reasonable, sufficient and unintentional, hence deserves to be condoned. Consequently the same stands condoned. The Appellant most of the times, did not bother itself on one or other reason(s) to appear and co-ordinate with appellate proceedings even after availing various opportunities. Although the instant appeal of the assessee is liable to be dismissed in order to give effect to the principle that law does not assist the person who is inactive and sleeps over his rights by allowing them when challenged or disputed to remain dormant, without asserting them in a court of law. The effort of the court should not be one of finding means to pull down the shutters of adjudicatory jurisdiction before a party who seeks justice, on account of any mistake committed by him, but to see whether it is possible to entertain his grievance if it is genuine, therefore, considering the facts that the Ld. CIT(A) did not pass the order under challenge on merit, we feel it appropriate to set aside the impugned order and to remand back the instant case to the file of the Ld. CIT(A) for decision afresh on merits, suffice to say while affording proper and reasonable opportunity of being heard to the assessee/appellant, in order to follow the principle of natural justice. We also feel it appropriate to direct the Assessee/Appellant to extend its full co-operation and participation in the appellate proceedings before the Ld. CIT(A) as and when would be required. Appeal filed by the assessee is allowed for statistical purposes.

Summary

Issues:
1. Delay in filing the appeal.
2. Dismissal of the appeal by Ld. CIT(A) on non-prosecution.

Analysis:

Issue 1: Delay in filing the appeal
The appeal was delayed by 124 days due to the failure of the assistant of the Chartered Accountant to deposit the appeal fee and file the appeal in the registry of ITAT, Amritsar. The Assessee provided a bonafide reason for the delay, stating it was unintentional. The law requires a Court to consider the conduct of the party and plausible cause for non-filing the statutory appeal within the time limit. Citing precedents like Collector, Land Acquisition v. Mst. Katiji and N. Balakrishnan v. M. Krishnamurthy, the Court emphasized that substantial justice should be preferred over technical considerations. The Court held that the length of delay is immaterial, and the acceptability of the explanation is the main criterion for condonation of delay.

Issue 2: Dismissal of the appeal by Ld. CIT(A) on non-prosecution
The Ld. CIT(A) dismissed the appeal as the Assessee did not attend the appellate proceedings or file any adjournment application, indicating lack of interest in pursuing the appeal. While acknowledging the principle that law assists those who are vigilant, the Court recognized that even vigilant litigants can make mistakes. Therefore, the Court set aside the impugned order and remanded the case back to the Ld. CIT(A) for a fresh decision on merits, emphasizing the need for proper and reasonable opportunity to be heard. The Assessee was directed to cooperate fully in the proceedings, with a warning that leniency would not be granted in case of default.

In conclusion, the appeal was allowed for statistical purposes, highlighting the importance of following principles of natural justice and ensuring proper conduct in legal proceedings.