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TMI Blog2024 (8) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal. The appellant has very genuinely given the reasons for condonation of delay before the Ld. CIT(A) and has even filed the affidavit of the concerned employee who was responsible for receiving emails on behalf of the appellant. As evident from the affidavit of accounting person/Mrs. Pooja Ashanand Mishra that she inadvertently failed to notice the email containing the order dated 28.02.2022 sent on the email of the appellant. She has given the detail reasons for the said missing of the notices of the email. We have no reason to disbelieve the affidavit so submitted. Nothing contrary has been brought on record by the respondents which may contradict and falsify affidavit of employee of the appellant in support of seeking condonation of delay. Thus the impugned order of the Ld. CIT(A) is not sustainable in the eyes of law and accordingly set aside with the directions to restore the case of the appellant on the file of Ld. CIT(A). - Shri. Om Prakash Kant, Accountant Member And Shri. Raj Kumar Chauhan, Judicial Member For the Assessee : Shri. Jignesh R. Shah For the Department : Shri. Sunil Shinde, Sr. AR. ORDER PER RAJ KUMAR CHAUHAN (J.M.): 1. This appeal is filed by the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity of being heard at all and without appreciating in right perspective the detailed application for condonation of delay and the affidavit filed by the Appellant and thereby violating not merely the express provisions of law contained in section 250 read with section 249(3) but also the fundamental principles of natural justice, conscience and good faith. b. Other grounds in the appeal relates to the imposing of the penalty and the penalty order has been challenged in these grounds on merit. Since the Ld. CIT(A) has not decided the appeal vide impugned order on merit and simply dismissed the same being barred by law. Hence, we will confine ourselves to the ground no. 1 which contains to the condonation of delay in filing the appeal before the Ld. CIT(A). 5. We have heard the Ld. AR of the appellant and Ld. DR for the respondent. The Ld. AR on behalf of the appellant submitted that the reasons for condonation of delay as submitted before the Ld. CIT(A) makes out a sufficient cause for condonation of delay because in support of those grounds an affidavit of Mrs. Pooja Ashanand Mishra who was looking after accounting work of the appellant was filed giving detailed reasons as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed to income-tax for a very long time and my trackrecord with the Income-tax Department has been excellent. I have always been prompt and proactive in complying with all the requirements under the Act for all these years. Kindly note that my email account on which the impugned penalty order dated 28.02.2022 was received is my business email account on which I receive dozens of emails everyday from various suppliers, Government Departments, etc. in respect of my business transactions with various Government Departments, and my email account is therefore handled by my staff by the name Mrs. Pooja Ashanand Mishra. To my misfortune, this email containing the impugned penalty order dated 28.02.2022 was, through inadvertence and oversight, omitted to be opened by my staff Mrs. Pooja Ashanand Mishra on the day It was received. Thereafter, unfortunately, this email of the impugned penalty order got buried under hundreds of emails I receive. With the passage of time, since the emails received on a daily basis were mounting, this email containing the impugned penalty order got completely overlooked by my staff Mrs. Pooja Ashanand Mishra for a long time. It is only when the recovery proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant. The right of appeal to the Ld. CIT(A) u/s. 248 is a statutory right granted to the appellant/assessee. The statutory right cannot be denied to an assessee unless there is inordinate delay or gross negligence on the part of the assessee. It is settled law that the rules and procedure is handmade of justice and the adjudicating authorities should not deny a statutory right of appeal on technical grounds. Para no. 61 of judgment of Hon ble Supreme Court in the case of Sesh Nath Singh Anr. Vs. Baidyabati Sheoraphuli Co-operative Bank Ltd. Anr. in Civil Appeal No. 9198 of 2019 order dated 22.3.2023 can be relied with profit. 61. The condition precedent for condonation of the delay in filing an application or appeal, is the existence of sufficient cause. Whether the explanation furnished for the delay would constitute sufficient cause or not would dependent upon facts of each case. There cannot be any straight jacket formula for accepting or rejecting the explanation furnished by the applicant/appellant for the delay in taking steps. Acceptance of explanation furnished should be the rule and refusal an exception, when no negligence or inaction or want of bonafides can be imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes not reach the higher courts for adjudication. 31. The order under challenge in this appeal is dated 21st December 2011. It was rendered at a point of time when the decisions in Mst. Katiji (supra), Ramegowda (supra), Chandra Mani (supra), K.V. Ayisumma (supra) and Lipok AO (supra) were holding the field. It is not that the said decisions do not hold the field now, having been overruled by any subsequent decision. Although there have been some decisions in the recent past [State of M.P. v. Bherulal14 is one such decision apart from University of Delhi (supra)] which have not accepted governmental lethargy, tardiness and indolence in presenting appeals within time as sufficient cause for condonation of delay, yet, the exercise of discretion by the High Court has to be tested on the anvil of the liberal and justice oriented approach expounded in the aforesaid decisions which have been referred to above. We find that the High Court in the present case assigned the following reasons in support of its order: a. The law of limitation was founded on public policy, and that some lapse on the part of a litigant, by itself, would not be sufficient to deny condonation of delay as the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 17,51,503 for the assessment year 2012-13, both received from the Income-tax Department. It was pure inadvertence on my part and the omission was unintentional. 4. I receive and respond to countless emails everyday on behalf of Mr. Naresh Topandas Aidasani. Once the above emails from the Income-tax Department were inadvertently omitted to be noticed by me, thereafter, these emails got buried in showers of emails I receive everyday and it never came to the light that I had omitted to see these emails from the Income-tax Department. 5. It is only recently, in April 2023, when the recovery proceedings from the Income-tax Department for the recovery of the said penalty of Re. 17,51,503 came to our knowledge that I started tracing the email containing the penalty order dated 28.02.2022 and located the old email and realized that I had completely overlooked the said email containing the penalty order dated 28.02.2022 under section 271(1)(c) of the imposing penalty of Rs. 17,51,503. 6. This omission on my part in noticing the said notice dated 31.12.2021 and the said penalty order dated 28.02.2022 the assessment year 2012-13 has resulted in a delay on the Part of Mr. Naresh Topandas Aid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone 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 hearing the parties. 13. In the facts and circumstances as discussed above and because of the law laid down by the Hon ble Supreme Court in Sesh Nath Singh Anr. and Sheo Raj Singh (Deceased) Through LRS. Ors. referred (supra), we are of the considered opinion that there was sufficient cause for condoning the delay of 380 days by the Ld. CIT(A). 14. For the above reasons, the impugned order of the Ld. CIT(A) is not sustainable in the eyes of law and accordingly set aside with the directions to restore the case of the appellant on the file of Ld. CIT(A) and dispose the same on merit after duly considering the material brought on record by the appellant before the Ld. CIT(A). The appellant/assessee shall present its case before the Ld. CIT(A) within 90 days of this order. 15. In the result, appeal filed by the assessee is allowed in the above terms. Order pronounced in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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