AI Structured Summary
Not yet generated for this judgment
Judgment
PER SANJAY AWASTHI, ACCOUNTANT MEMBER:
This appeal arises from order dated 27.02.2023, passed u/s 250 of the Income Tax Act, 1961 (hereafter as “the Act”) by NFAC, Delhi.
In this case, the ITAT Registry has reported a delay of 965 days in the filing of appeal before the ITAT. For this purpose, the assessee has filed an application, accompanied by an affidavit for condoning the said delay as under:
“I, Deepak Gupta Director of M/s VR Procurement Corporation Private Limited resident of B-7/119-120, 2nd Floor, Sec. 17, Rohini New Delhi 110085, do solemnly affirm and state as under:
1.That I am Director of M/s VR Procurement Corporation Private Limited the assessee, and as such well conversant with the facts deposed to below.
2.That the appeal filed by the companies before the Hon'ble Commissioner (Appeals)-NFAC, Delhi was disposed of by order dated 27.02.2023 passed by the Commissioner of Income Tax (Appeals).
3.The Appeal was electronically filed on 25.05.2023 vide acknowledgment no 1684575311 enclosed herewith as Annexure-02.
4.That the appeal filing fees was paid on 29.04.2023, which clearly establishes that the Intension was to file appeal with in stipulated time. Copy of the appeal fee payment challan/receipt along with acknowledgement is annexed herewith as Annexure-01.
5.The Appeal filing acknowledgment at last para stated as under: "Note: Electronic Filing (E-Filing) of Appeal is only provisional and not a substitute for physical filing of appeals Submission of physical Appeal along with all enclosures before respective Bench of the income Tax Appellate Tribunal within time prescribed under the relevant Act is mandatory" The same given impression that the physical document be filed before the respective bench once marked.
6.The Hon'ble Supreme Court vide order dated 17.04.2023 directed mandatory e-filing of appeals before ITAT w.e.f. 30.06.2023 on Para 8 of Page no. 8 of order. A copy of Order unclosed herewith as an Annexure-03.
7.That pursuant to the aforesaid direction of the Hon'ble Supreme Court, the Income Tax Appellate Tribunal issued Bench Instruction/Office Order being U.O. No. F.1-EF/ATD/2023 dated 30.06.2023 making e-filing mandatory. A Copy of Instruction enclosed herewith as an Annexure-04. The Appellant's filing on 25.05.2023 fell squarely within this transitional period when the exact requirements regarding physical filing along with e-filing were in the process of change, leading to genuine confusion.
8.That due to genuine confusion and lack of complete awareness regarding the mandatory physical submission requirement during the post-COVID transition period to the now e-filing system, the physical copy is not required to be filed. The Appellant bonafidely believed that online filing was sufficient.
9.That no defect memo, notice or any communication from Registry of ITAT was over received by appellant regarding any deficiency or non-prosecution of the appeal filed on 20.05.2023.
10.That due to the above procedural transition and absence of any communication, the Appellant was under a bona fide belief that the appeal was validly filed and pending for adjudication.
11.That the appeal was never abandoned by the Appellant at any stage. There was no mala fide intention or deliberate negligence on the part of the Appellant. When the Appellant made oral enquiries regarding the status of the appeal in the Registry, it came to light that the appeal had not been fixed for hearing due to non-submission of the physical copy. Immediately upon being so informed, the Appellant, as per the oral Instructions received, promptly re-filed the complete appeal along with all annexures on 20.01.2026 under the updated digital procedure. Thus, the Appellant has acted with utmost promptitude as soon as the technical defect was realized.
12.That the present filing is in continuation of the appeal originally instituted within the period of limitation and is not a fresh appeal.
13.That delay of approx 996 days, if construed, is purely technical, unintentional and occurred due to procedural transition and bona fide belief, and not due to any negligence or deliberate inaction on the part of the Appellant.
14.That in view of the facts stated above, it is most respectfully prayed that the delay in filing the present appeal may kindly be condoned in the Interest of justice. If the delay is not condoned, the Appellant/Assessee will suffer heavy and irreparable loss as the appeal will not be heard on merits.
15.That the assessee undertakes that no such delay or procedural default shall occur in future.”
In this matter, we have carefully perused the affidavit filed by the assessee and have heard the Ld. AR. It needs to be mentioned that the Ld. DR has opposed the condoning of the delay on the ground that the reasons advanced through the said affidavit are not adequate to justify the massive delay.
A perusal of the affidavit and the arguments of the Ld. AR would give an impression that the assessee has handled the filing of impugned appeals in a rather causal manner. However, in the interests of substantive justice, we are rather inclined to condone the delay on the basis of certain settled judicial principles which mandate that as far as possible appeals should be heard on merits and only in exceptional cases should they be dismissed on grounds of limitation. We may discuss this proposition for the sake of perspective. Section 253(5) of the Act empowers the ITAT to condone the delay in filing of the appeals in case the respective bench is satisfied about the reasons for the same. The words “sufficient cause” as appearing in section 5 of the Limitation Act should receive a liberal construction when the delay is not on account of any dilatory tactics, want of bona fides, deliberate in-action or negligence on the part of the appellant. It is understood that the words “sufficient cause” should be applied in a reasonable, pragmatic, practical and liberal manner depending upon the facts and circumstances of the case. Thus, the decisive factor in considering condonation of delay is not the duration of such delay, but rather the sufficiency of a satisfactory explanation. Some cases deserve to be referred to in light of these observations:
Collector Land Acquisition vs. Mst. Katiji [1987 AIR 1353 (SC)];
N Balakrishnan vs. M Krishnamurthy [7 SCC 123 (SC)].
A reading of these cases reveals that the Hon’ble Apex Court supports an approach that the reasons advanced by an appellant for condoning the delay have to be seen from a justice-oriented approach.
However, while we condone the delay in the case and admit the appeals for adjudication, we would not deem it to be desirable that such instance of casual approach in adhering to statutory time lines does not serve as an example for others to follow. Accordingly, we deem it fit to levy a cost of Rs.20,000/- on the assesse to be payable to the Delhi High Court Legal Services Committee, 34-38, Lawyers Chamber, Delhi High Court, New Delhi. This amount is payable by 30.06.2026.
Since the appeal is now admitted for adjudication the Ld. AR was asked to make a submission on facts.The Ld. AR stated that due to inadequate assistance rendered by the tax consultant the assessee could not make proper presentation of facts before the Ld. First Appellate Authority. It was the submission that the assessee may be given another chance to present the facts. He pointed out that GOA 6 of the grounds before ITAT, speaking of denial of opportunity, need to be sympathetically considered.
The Ld. DR had no objection in case the matter was to be remanded back.
We have carefully considered the facts of the case and have gone through the records before us. It is clear that there is absolutely little fact finding at the first appellate stage to enable us to gainfully adjudicate on the issues involved. Accordingly, we deem it fit to set aside the impugned order and remand the same back to the file of Ld. CIT(A) for fresh adjudication in line with prayer contained in GOA 6. The assessee would be expected to present the facts before the Ld. CIT(A) and the Ld. CIT(A) would give adequate opportunity of being heard the case.
In the result, the appeal is partly allowed for statistical purposes.