Suman Kumar vs ITO, Ward 5(3)(4)

This appeal in ITA No. 3653/Del/2026 for assessment year 2017-18 has arisen from appellate order dated 24.09.2025 passed by the learned Addl. / JCIT(A) under Section 250 of the Income-tax Act, 1961 (hereinafter referred to as ‘the Act’) (DIN & Order No. ITBA/APL/S/250/2025-26/1081115355(1)).

At the outset, it is observed that this appeal is filed by the assessee with ITAT belatedly by 130 days beyond the time stipulated under Section 253(3) of the Act. The assessee has duly filed application for condonation of delay praying for condonation of delay. It is prayed in the said application that the assessee was out of India and was unaware of the appellate order passed by ld. CIT(A). It is stated that he came to know about the appellate order passed by ld. CIT(A) while visiting his CA, and then he immediately took steps to file appeal with the Tribunal. It is submitted that the assessee has strong case on merits, and the appeal be heard on merits rather than be dismissed on technical grounds. The assessee has filed a chart of his stay outside India , and copy of passport is also enclosed. The said documents are placed on record in file. The ld. Sr. DR fairly left the matter for Bench to decided. After hearing both the parties and perusing the material on record, We hereby condone the delay of 130 days in filing this appeal belatedly by the assessee beyond the time prescribed under Section 253(3) of the Act, and proceed to adjudicate this appeal on merits in accordance with law. When substantial justice is pitted against technicalities, the Courts will lean towards advancement of substantial justice, unless malice is at writ large or there is gross negligence. We donot see any malice on the part of the assessee or gross negligence on the part of the assessee in filing this appeal belatedly beyond time prescribed u/s 253(3) as the assessee is not likely to gain any thing by filing this appeal belatedly by 130 days beyond the time prescribed u/s 253(3). Reliance is placed on judgment and order of Hon’ble Supreme Court in the case of Collector , Land Acquisition , Anantnag v. Mst. Katiji & Ors. 1987 (2) SCC 107.

In this appeal , the assessee is aggrieved by the decision of ld. CIT(A) not condoning the delay in filing appeal belatedly by the assessee with ld. CIT(A) , as the assessment order was passed by the AO u/s 143(3) on 31.12.2019 , while the appeal was filed with ld. CIT(A) on 04.12.2021. The assessee duly explained the reasons for delay before ld. CIT(A) in Form No. 35, which in brief were that the assessee was out of India in UAE, and he came back to India in March 2020 just before spread of Covid19 pandemic. Thereafter , the lock down was announced by Government of India owing to spread of Covid 19 disease. The assessee fell ill , developed Bronchitis and was hospitalized . Thus , it was explained that due to aforesaid circumstances , the appeal was filed belatedly beyond the time prescribed under the statute. Thus, it was prayed before ld. CIT(A) that the aforesaid delay in filing appeal be condoned. The ld. CIT(A) refused to condone the aforesaid delay in filing the appeal belatedly, and dismissed the appeal of the assessee. The assessee participated in appellate proceedings before ld. CIT(A) and filed written submissions (Refer paper book page 1-8), but the written submissions were not considered by ld. CIT(A) solely on the ground that the appeal is filed belatedly beyond the prescribed statutory time and the assessee is unable to show sufficient cause for delay, thus , the appeal was un-admitted by ld. CIT(A). The ld. CIT(A) did not discuss the issues on merit and merely dismissed the appeal by not condoning the delay.

Still Aggrieved, the assessee has filed second appeal with the Tribunal.

Heard both the parties.

We have heard both the parties, and perused the material on record. There was a delay in filing appeal before ld. CIT(A) as the assessment order was passed by the AO on 31.12.2019 while appeal was filed before ld. CIT(A) on 04.12.2021, and reasons cited were that the assessee did not receive the appellate order passed by ld. CIT(A). It was explained thet the assessee was out of India in UAE, and he came back to India in March 2020 just before spread of Covid19 pandemic. Thereafter , the lock down was announced by Government of India owing to spread of Covid 19 disease. The assessee fell ill, developed Bronchitis and was hospitalized . Thus , it was explained that due to aforesaid circumstances , the appeal was filed belatedly beyond the time prescribed under the statute. It is pertinent to mention that Hon’ble Supreme Court excluded the period from 15.03.2020 to 28.02.2022 , for the purposes of computation of limitation , inter-alia, for filing appeals under the taxing statutes owing to Covid 19 pandemic. It is true that 30 days period of filing appeal with ld. CIT(A) expired before the aforesaid period of exclusion granted by Hon’ble Supreme Court owing to Covid 19 pandemic. It is further submitted that the assessee is serious in persuing the appeal , and huge prejudice and irreparable loss shall be caused to the assessee, if the delay in filing the appeal with ld. CIT(A) is not condoned. The assessee also participated in appellate proceedings before ld. CIT(A) and filed written submissions. This did not found favour with ld. CIT(A), who dismissed the appeal filed by the assessee solely on the ground that the appeal is filed belatedly by the assessee beyond statutory prescribed period. We have gone through the material on record, and we have observed that the assessee has duly explained sufficient cause in filing appeal belatedly with ld. CIT(A). The assessee participated in appellate proceedings before ld. CIT(A) and filed written submissions on merits of the issues which were not considered by ld. CIT(A), as he dismissed the appeal being un-admitted on the grounds that the appeal is filed belatedly beyond the prescribed statutory time period. Severe prejudice is caused to the assessee firstly by decision of ld. CIT(A) in not admitting the appeal on the grounds of being filed belatedly , and secondly by the decision of ld. AO in making additions wrt cash deposits against Citi Bank Card. The assessee has categorically stated that he earlier owned Citi Bank Credit card , but the same was discontinued and closed much before the previous year, and there was no such payment made to Citi Bank during the year under consideration. Infact, the AO has issued notice u/s 133(6) to Citi Bank , but the fate of such notice is not specified by the AO in the assessment order. We hold that the assessee has demonstrated sufficient cause as cited above in this order in filing appeal belatedly with ld. CIT(A), and we condone the delay in filing the appeal belatedly by the assessee before ld. CIT(A). When technicalities are pitted against advancement of substantive justice, courts will lean towards advancement of substantial justice, unless malice is at writ large or there is a gross negligence. We do not find any malice on the part of the assessee nor there appears to be gross negligence. The assessee is not likely to gain anything by filing appeal belatedly with ld. CIT(A). Reliance is placed on the judgment and order of Hon’ble Supreme Court in the case of Collector, Land Acquisition, Anantnag v. Mst. Katiji & Ors. 1987(2) SCC 107. We , therefore, condone aforesaid delay in filing the appeal belatedly by the assessee before ld. CIT(A) , and remit the matter back to the file of ld. CIT(A) to adjudicate the appeal of the assessee on merits in accordance with law.The ld. CIT(A) will admit evidences filed by the assessee in its support. The ld. CIT(A) shall give proper opportunity of being heard to both the parties. Needless to say that proceedings before ld. CIT(A) are extension of assessment proceedings , and powers of ld. CIT(A) are co-terminus with the powers of the AO including power of enhancement. The ld. CIT(A) is also empowered to make enquiry u/s 250(4) of the 1961 Act. The ultimate object and persuit of all these exercise by AO as well ld. CIT(A) being to find out the correct income chargeable to tax under 1961 Act ( Now Income-tax Act, 1925). Thus, all the aforesaid taxing authorities are duty bound to discharge their duties and endeavour to find out the correct income chargeable to income-tax, and in this persuit if the situation may so warrant they must unhesitatingly come forward to assist the tax-payers. After all the tax-payers are key participants in building of the nation. In this appeal before us, the assessee is denying that the assessee is not holding credit card issued by Citi Bank during the previous year under consideration , and hence there is no question of any payments being made to Citi Bank. The AO did issued notice u/s 133(6) to Citi Bank, but did not mentioned the fate of such notice u/s 133(6). If need be ld. CIT(A) could also seek information directly from Citi Bank by issuing notice u/s 133(6), or direct AO to seek such information by issuing fresh notice u/s 133(6), if the earlier notice is not replied by Citi Bank. In such situation, it may be difficult for assessee to prove negative. In case, if any direct evidence of such payment is with the Revenue that the assessee did made payments to Citi Bank, then the same should be confronted to the assessee in accordance with principles of audi alteram partem, and to unravel truth. We clarify that we have not commented on the merits of the issue, and the ld. CIT(A) will adjudicate the appeal on merits in accordance with law, uninfluenced by any of our observation in this order. Thus, we set aside the order passed by ld. CIT(A) dated 24.09.2025 ,and remit the matter to the file of ld. CIT(A) for fresh adjudication on merits in accordance with law. We order accordingly.

In the result, the appeal filed by the assessee is allowed for statistical purposes.