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TMI Blog2023 (8) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... the present appeal. CIT(A) (NFAC) decided the appeal without providing reasonable opportunity of being heard - fixation notices u/s 250, referred to in appeal order appear to were never received either by the Assessee or his earlier A/R, which could have been mailed to some other unknown mailing address not of the Assessee or his earlier A/R. - HELD THAT:- The assessee is deprived off the justice before the ld. CIT(A) even though the ld. CIT(A) has given the finding on the merits based on the facts available before him. But since, the assessee has not received an opportunity of being heard before the ld. CIT(A) on account non receipt of the notice on the mail id given in the appeal memo. The Bench noted from the entire episode that the assessee is deprived off to get the justice from the judicial authorities below because of technical latches which should not be done. Hence, the Bench in the interest of equity and justice restores the appeal of the assessee to the file of the ld. CIT(A) for a fresh adjudication. - DR. S. SEETHALAKSHMI, JM SHRI RATHOD KAMLESH JAYANTBHAI, AM For the Appellant : Shri G. M. Mehta (C.A.) For the Respondent : Smt Monisha Chaud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The legislature has conferred the power to condone the delay by enacting section 5 of the Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on merits. The expression sufficient cause employed by the Legislature is inadequately elastic to enable the Courts to apply the law in a meaningful manner, which sub-serves the ends of justice that being the life purpose of the existence of the Institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matter instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy . In this judgment, Hon'ble Supreme Court has mentioned the aspects that have to be borne in mind while exercising Power of Condonation. These are: (1) Ordinarily, a litigant does not stand to benefit by lodging an appeal late; (2) Refusing to condone the delay can result in a meritorious matter being thrown out 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 hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ite such views of the courts, the altitudes of lower authorities like CIT(Appeal) and Tribunal have not changed and still requests are being turned down mechanically, multiplying litigation to no ones benefit. Such tendency needs to be curbed and more liberal attitude adopted. Recent decision in case of Sandy Mallick Vs. ITO (2022) 220 (Ctk) 430. is enclosed herewith on the identical facts of the assessee. 2.1 The ld. AR of the assessee also relied upon the affidavit of the assessee as well as his CA regularly dealing with the case of the assessee. The content of the affidavit of the assessee reads as under: I Bhim Singh S/o Shri Gokul r/o. C-24, Ambabari, Metal Colony Jaipur solemnly affirm and state as under: (1) That I am assessed to Income tax vide PAN CFRPS5909A. (2) that after filing on-line appeal by my earlier Chartered Accountant Shri Lokesh Kasat before Commissioner of Income tax (Appeals)-2, Jaipur for the additions made vide order dated 17.10.2019 under section 143(3) of Income tax Act, I did not received any fixation notice either in physical form or through mailing address given in Form 35, therefore I was not aware about the progress of my appeal to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee prayed that the delay of bringing this appeal may be condoned in the interest of the justice. 2.4 On the other hand the ld. DR not objected to the petition of the ld. AR of the assessee for condonation of delay and left the decision to the bench in the matter. 2.5 We have heard the rival contentions and persuaded the material available on record made available by both the parties. We have also gone through the various judicial precedent cited to drive home to their contentions so raised and to plead the delay in filling this appeal by the assessee. The bench noted that there is no dispute about the number of days delay by both the parties that this appeal is filed by the assessee after a delay of almost 318 days. Before us the ld. AR of the assessee contended that the notice was not issued on the mail id mentioned in the form no. 35 filed by the assessee and thus, the assessee could not represent their case before the ld. CIT(A)/NFAC. The fact that the order has been passed has came to the knowledge only when the ld. AO issued notice for levy of penalty. Based on these set of fact the ld. AR of the assessee submitted that there is delay of 318 days for which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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. It was also held by the Hon'ble Supreme Court that there is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of male fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk. In the instant case, applying the same principles, we find that the assessee has all along acted diligently in safeguarding his legal rights and availing the remedies available to him and has acted when the matter brought to the notice. The apex court further held that it is the duty of the court to see to it that justice should be done between the parties. 2.9 In light of above discussions and in the entirety of facts and circumstances of the case, we are of the considered view that the assessee in his affidavit detailed the reasons for the delay and the same is supported by the affidavit of this Chartered Accountant made out a clear case that there was sufficient cause which being beyond his control, prevented him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 11,53.134/- against the returned income of Rs. 2,71,720/-. 5. Being aggrieved, the assessee carried the matter in appeal before the ld. CIT(A). The ld. CIT(A) vide para 3 stated that : 3. During the course of appellate proceedings, it is noted that various opportunities have been provided to the appellant by issuing various notices. The details of such notices are as under:- S. No. DIN No. Date of Notice issued Date of online submission Status 1 ITBA/NFAC/F/APL_1/2020-21/1029887832(1) 19.01.2021 19.02.2021 No Compliance 2 ITBA/NFAC/F/APL_1/2021-22/1036379041(1) 14.10.2021 16.11.2021 No Compliance 3 ITBA/NFAC/F/APL_1/2021-22/1038093448(1) 24.12.2021 11.01.2022 No Compliance 4 ITBA/NFAC/F/APL_1/2021-22/1040305963(1) 03.03.2022 10.03.2022 No Compliance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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