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TMI Blog2019 (2) TMI 1661X X X X Extracts X X X X X X X X Extracts X X X X ..... nal was empowered and capable of removing injustice, in our opinion, the delay in filing the appeals before the CIT(A) has to be condoned and the appeals of the assessee have to be admitted and disposed of on merit. We condone the delay in filing the appeals before the CIT(A) and remit the issue to the file of the CIT(A) to decide the issue on the merit of the additions made by the AO. Since the assessment order was passed ex parte u/s. 144 the CIT(A), if required, may call for the remand report from the Assessing Officer and confront the same to the assessee before deciding the appeals. We also make it clear that if the CIT(A) or the AO relied on any statement of the third parties so as to frame the impugned assessments on an earlier occasion, the same is to be confronted to the assessee and if the assessee requires any cross examination of the parties concerned, the same is to be provided. With these observations, we remit the issue to the file of the CIT(A) to decide the issue afresh regarding the merit of the additions. - I.T.A. Nos. 518 to 523/Coch/2018 - - - Dated:- 4-2-2019 - S/SHRI CHANDRA POOJARI, AM GEORGE GEORGE K., JM For the Assessee : S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. The facts of the case are that the appeals had been filed belatedly. The assessment orders were passed on 28/12/2016 and therefore, the appeals should have been filed on or before the end of January, 2017. However, the appeals had been filed on 22/06/2018. The assessee requested for condonation of delay. On the issue of late filing of appeals, the Assessing Officer wrote a letter dated 11/07/2018 as follows: Subsequent to the search action u/s 132 of the IT Act against Shri Varughese M. Uthup on 27.03.2015, notices u/s 153C was issued to the company M/s Al-Zarafa Travels and Manpower Consultants Private Limited in which the said assessee had played a vital role and also been the Director of the company. The proceedings resulted in a tax and penalty demand of ₹ 248 crores and ₹ 156 crores respectively in the hands of the said company. Order u/s 179 was also passed on 14.08.2017 holding Shri. M. Uthup Varughese holding jointly and severally liable for the payment of tax and penalty demand of M/s Al-Zarafa Travels and Manpower Consulants Pvt. Ltd. Due to complete non-cooperation by the assessee company, the assessment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt that the company was in possession of the assessment orders passed as Shri. Varughese M. Uthup had stated that he had taken copies of the orders after contacting the employees and the erstwhile chartered accountant. Notwithstanding to his contention, the assessee has again not brought sufficient grounds to explain even the enormous delay they have taken after the so called receipt of assessment orders on 13.03.2018. It may thus appear that the company might have waited for a positive decision by the court in respect of order u/s 230A and having filed in this regard has taken recourse to file an appeal. During the course of sworn statement on 04.07.2018, Shri. Varughese M. Uthup the spouse of Smt. Susan Thomas had stated that he had come to know about the search from T.V. Channels in U.A.E Further, he stated that he had called one of the staffs of the company and was appraised of the happenings. That being the case, the plea of Smt. Susan Thomas that she was unaware of the happenings in the company appears unfathomable. Notwithstanding to any of the above, it is seen that the Director Mrs. Susan Thomas is a non-resident and whereas, the appeal has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating to the merits of the case were also not considered. In view of the above, all the appeals were treated as invalid and therefore, dismissed. 6. Against this, the assessee is in appeal before us. The Ld. AR submitted that the assessment order was passed on 28/12/2016. He drew our attention to a table showing relevant dates which reads as follows: TABLE SHOWING RELEVANT DATES ADDITIONAL SUBMISSIONS SI. No Matter Date 1. Date of Assessment u/s. 153C r.w.s. 144 28.12.2016 2 Date of Receipt of the Assessment order by the exemployee of the company 31.12.2016 3 Date of handing over the order by ex-employee Mr. Paul Varghese (Roy) to the erstwhile Chartered Accountant of the company Mr. James Thomas 15.02.2017 4 Date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Eapen could not be contacted, the assessment orders were retained by me. I was not aware of its relevance and importance. On 15.02.2017, I handed over the assessment orders to the erstwhile Chartered Accountant of the company Sri. James Thomas at his residence at Kottayam. The Chartered Accountant advised me to request the Managing Director Sri. Renny Eapen to contact him for taking further steps. However, I could not contact the Managing Director Sri. Renny Eapen. On 13.03.2018, Sri. Varughese M. Uthup contacted me and asked me whether I had received any communication from Income Tax Department. I appraised him about the fact that the assessment orders were handed over to Chartered Accountant, Sri. James Thomas. 6.2 He also drew our attention to the death certificate of assessee s ex- Chartered Accountant, Shri James Thomas dated 15/06/2018. He placed reliance on the condonation petition filed before the CIT(A) and explained the reason for delay in filing the appeal before the CIT(A) as follows: After the search initiated on the company, a series of cases were initiated on the company by enforcement directorate and other agencies. Conse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the erstwhile Chartered Accountant of the Company Sri. James Thomas on 15.02.2017. Sri. James Thomas was sick and was confined to his house and on 15.06.2018 he succumbed to his sickness and died. Smt. Susan Thomas's husband Mr. Varughese M. Uthup had collected the assessment orders from the Chartered Accountant on 13.03.2018. After that he contacted another Chartered Accountant to file the appeal, but only then it was known that Digital Signature is required for filing the appeal as the Department had changed the procedure of filing appeal from manual to online. When it was tried to get Digital Signature it was known that PAN was mandatory for obtaining Digital Signature. Smt. Susan Thomas being non - resident for more than 20 years had no PAN. She had to apply for PAN. The application forms were to be prepared and sent to UAE. After affixing the signature, the same had to be returned to India. The postal delay took considerable time. Moreover, allotment of PAN took nearly 2 weeks. After getting PAN, application for Digital Signature had to be prepared and the same had also to be sent to UAE. After signing the same, it had to be returned to India and application for Digital Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008 dated 08/10/2018)(Mad.). d) Rajeshsingh Khadak Bahadur vs. ITO (ITAT, Ahmedabad Bench)(ITA Nos. 615 616/Ahd/2014 dated 25/06/2015). 7. On the other hand, the Ld. DR relied on the order of the lower authorities and submitted that there is no reasonable cause for filing the appeals belatedly by 510 days and the condonation petition is to be dismissed. 8. We have heard the rival submissions and perused the record. There was a delay of 510 days from the date of receipt of the assessment order by the exemployee of the assessee to the filing of the appeal by the assessee. On the other hand, it was submitted that the delay would be 71 days from the date of receipt of the assessment order taken as the date on which Smt. Susan Thomas s husand received the assessment order from the ex-chartered accountant of the assessee. In our opinion, at this stage, it is more appropriate to consider the date of receipt of the assessment order by the husband of Smt. Susan Thomas as the effective date of receipt of the assessment order so as to condone the delay in this case. We have gone through the condonation petition explaining the reasons for the delay in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s Al-Zarafa Travels and Manpower Consultants Pvt. Ltd. Due to complete non-cooperation by the assessing company, the assessment of the company had to be completed with the help of materials available on record. Taking into account the contumacious conduct of the said Shri Varughese M. Uthup an order u/s 230 of the IT Act was passed on 05/03/2018 after approval from the DGIT, rendering it necessary for him to obtain a certificate from the Income Tax Authority that he has no liabilities under this act or the wealth tax act or that satisfactory arrangements have been made for the payment of all or any such taxes that had become payable before he leaves the territory of India. Shri Varughese M. Uthup filed a writ petition against order u/s 230. The High Court Kerala upheld the order passed u/s 230. The matter was then taken to the Division Bench of the High Court Kerala wherein also it was upheld. The order passed u/s 230 had an element of demand passed u/s 179 being the demand of M/s Al-Zarafa Travels and Manpower Consultants Pvt. Ltd. The High Court Kerala had also directed this office to redo the order u/s 179 and also have a relook at order u/s 230. During the course of hearing, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dging 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 non-deliberate 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 injust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more, the Chennai Tribunal by 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. It is pertinent to mention herein that the view taken by the present author in that case was overruled by the Third Member. 8.7 We also place reliance on the decision of this Tribunal in the case of Midas Polymer Compounds (P.) Ltd vs. Asstt. CIT in ITA No. 288/Coch/2017 dated 25/06/2018 wherein this Tribunal condoned the delay of 2819 days. Insofar as the reliance on the decision of the Tribunal in the case of Midas Polymer Compounds (P) Ltd. cited supra is concerned, we are of the view that the Tribunal condoned the delay on the part of the assesse in filing the appeals by observing that the Chartered Accountant who was handling the matter failed to take proper steps to file the appeals and the Chartered Accountant filed affidavit stating that the appeals for AYs. 1999-2000 to 2004-05 in respect of the group concern and appeals for the AYs. 2005-06, 2007-08 and 2008-09 of the assessee were filed and represented by the Chartered Accountant at Cochin and he was under the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aj Hindusthan Ltd. v. Jt. CIT (AT) (277 ITR 1) has condoned the delay of 180 days when the appeal was filed after the pronouncement of the Judgment of the Apex Court. Furthermore, the Revenue has not filed any counter-affidavit opposing the application of the assessee for condonation of delay. The Apex Court in the case of Mrs. Sandhya Rani Sarkar vs. Smt. Sudha Rani Debi (AIR 1978 SC 537) held that non-filing of affidavit in opposition to an application for condonation of delay may be a sufficient cause for condonation of delay. In this case, the Revenue has not filed any counter-affidavit opposing the application of the assessee, therefore, as held by the Apex Court, there is sufficient cause for condonation of delay. The Supreme Court observed that when the delay was of short duration, a liberal view should be taken. It does not mean that when the delay was for longer period, the delay should not be condoned even though there was sufficient cause. The Apex Court did not say that longer period of delay should not be condoned. Condonation of delay is the discretion of the Court/Tribunal. Therefore, it would depend upon the facts of each case. In our opinion, when there is suffici ..... X X X X Extracts X X X X X X X X Extracts X X X X
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