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TMI Blog2021 (6) TMI 931X X X X Extracts X X X X X X X X Extracts X X X X ..... d. However, if no mala fide can be attributed to the delay, the delay will be condonable. Therefore, on the facts of the present case, we are of the considered opinion that the assessee has been able to demonstrate sufficient reasons, in the shape of approaching wrong remedy, for filing an appeal before the Tribunal. Levy of penalty u/s 271(1) (c) - defective notice u/s 274 - HELD THAT:- A bare perusal of the notice issued to the assessee u/s 274 read with section 271(1)(c) of the Act goes to prove that assessee has not been called upon to explain if he has concealed the particulars of income or furnished inaccurate particulars of such income. we are of the considered view that when the assessee has not been specifically made aware of the charges leveled against him as to whether there is a concealment of income or furnishing of inaccurate particulars of income on his part, the penalty u/s 271(1)(c) of the Act is not sustainable - See M/S. SAHARA INDIA LIFE INSURANCE COMPANY, LTD. [ 2019 (8) TMI 409 - DELHI HIGH COURT] . Appeal filed by the assessee is allowed. - ITA No.2774/Del/2019 - - - Dated:- 31-5-2021 - Shri Sudhanshu Srivastava, Judicial Member And Shri Prashant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions, the appeal should have been filed by 1st April, 2016. However, the appeal has actually been filed on 1st April, 2019. In support of request made for condonation of delay, the Ld. AR also invited our attention to the affidavit filed by the assessee. In order to justify the sufficient cause for delay in filing of appeal, written submissions were filed on behalf of the assessee which are being reproduced as under:- (a) The assessee has authorised Sh. Anil Kumar and Sh. Arpit Verma, CA for representation of cases before the Honorable CIT (Appeals) Dehradun. All the notices and the Appellate order was received by Authorised representative themselves. (b) In January 2016, Disputes regarding Property arose between assessee and others and Police Complaints were filed against Assessee (copy enclosed vide pages 7 to 13). (c) Due to the above mentioned Police Complaints, the assessee was facing trauma mentally, financially as well as society as he was under constant questionnaire not only from Police Department but was also facing unawkard and unpleasant relationships in society, as the public at large got aware of proceedings due to news published in News paper. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the ambit of exercise of powers there under have been the subject-matter of consideration before the Hon ble Apex Court on various occasions. In the case of State of West Bengal v. Administrator; Howrah Municipality AIR 1972 SC 749 , the Hon ble Supreme Court, while considering the scope of the expression sufficient cause for condonation of delay, has held that the said expression should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to the party. 5.1.0 In the case of N. Balakrishnan v. M. Krishnamurthy AIR 1998 SC 3222 , there was a delay of 883 days in filing an application for setting aside the ex parte decree for which the application for condonation of delay was filed. The trial Court having found that sufficient cause was made out for condonation of delay condoned the delay. However, the Hon ble Court reversed the order of the trial Court. The Hon ble Supreme Court while restoring the order of the trial Court has observed in Para 8, 9 and 10 as under:- 8. The appellant s conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... berate. 5.2 The Hon ble Supreme Court in SLP [Civil No.12980 of 1986, decided on 19th Feb., 1987, in the case of Collector, Land Acquisition v. Mst. Katiji [1987] 2 SCC 107 , has laid down the following guidelines: 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest then can happen is that a cause would be decided on merits wafter 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 ust be applied on a rational commonsense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, 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 fid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of the specific limb not being satisfied would vitiate the entire penalty proceedings. It was submitted that such a view has also now been upheld by the Hon ble High Court of Delhi in the case of Sahara India Insurance Company Ltd vide order dated 02nd August 2019 in ITA 475/2019. The Ld. AR also drew our attention to page 3 of the penalty order wherein the AO has held that the assessee had furnished inaccurate particulars. It was submitted that the penalty ought to be deleted in view of the defect in the notice as aforesaid. The Ld. AR placed his reliance on numerous judicial precedents in support of his contention that the defect in notice would make the imposition of penalty unsustainable in law. 7.0 Per contra, the Ld. Sr. DR placed extensive reliance on the observations and findings of both the Lower Authorities. It was also pointed out that the ground relating to the defect in notice was not raised before the Ld CIT (A) and, therefore, the assessee should not be permitted to raise this ground at this juncture. It was argued by the Ld. Sr. DR that the penalty should not be deleted on a mere technicality. 8.0 We have heard the rival submissions and have given th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deeming provision contained in Section 1(B). h) The said deeming provisions are not applicable to the orders passed by the Commissioner of Appeals and the Commissioner. i) The imposition of penalty is not automatic. j) Imposition of penalty even if the tax liability is admitted is not automatic. k) Even if the assessee has not challenged the order of assessment levying tax and interest and has paid tax and interest that by itself would not be sufficient for the authorities either to initiate penalty proceedings or impose penalty, unless it is discernible from the assessment order that, it is on account of such unearthing or enquiry concluded by authorities it has resulted in payment of such tax or such tax liability came to be admitted and if not it would have escaped from tax net and as opined by the assessing officer in the assessment order. l) Only when no explanation is offered or the explanation offered is found to be false or when the assessee fails to prove that the explanation offered is not bonafide, an order imposing penalty could be passed. m) If the explanation offered, even though not substantiated by the assessee, but is found to be bonaf ..... 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