Anant B. Shinde (Huf v. Ito-24(1)(3)Mumbai And Anr

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL LODGING NO.1732 OF 2013 Anant B. Shinde (HUF)....Petitioner.vs.ITO-24(1)(3)Mumbai and anr....Respondents. Mr. K. Gopal along with Mr. Jitendra Singh for the Appellant.Mr. Arvind Pinto for the Respondents. CORAM : MOHIT S. SHAH, C.J. ANDM.S. SANKLECHA, J.DATE :04 December, 2013 DATE : PC: This appeal under Section 260A of the Income Tax Act 1961 (“Act”) challenges the order dated 17 May 2013 of the Income Tax Appellate Tribunal (“Tribunal”) relating to assessment year 2007-08. By the impugned order the appeal filed by the appellant assessee was dismissed on the issue of delay in filing the appeal before the Commissioner of Income Tax (Appeal) (CIT(A)). 2)The appellant has raised the following questions of law for our consideration:- a)Whether the Tribunal is right in law in confirming the order of the learned CIT(A) in dismissing the appeal filed by the appellant on technical ground of limitation without appreciating the facts and circumstances of the case? b)Whether the Tribunal is right in law in denying substantial justice to the appellant by confirming the order passed by the CIT(A)? c)Whether in the facts and the circumstances of the case and in law the order of the Tribunal is perverse as it is based on irrelevant and erroneous considerations while ignoring material and relevant considerations and as such is liable to be quashed? 3)At the request of the Counsel for both sides the appeal is taken up for final disposal at the stage of admission. 4)The relevant assessment year is 2007-08. The appellant had challenged the assessment order dated 21 December 2009 before the CIT(A). However, there was delay of 278 days in filing the appeal before the CIT(A).The appellant filed letter dated 7 July 2011 for condonation of delay. The CIT (Appeal) passed order dated 11 September 2012 rejecting the application for condonation of delay. Accordingly the appeal was dismissed as time barred. 5)Aggrieved by the order of the CIT(A), the appellant preferred an appeal before the Tribunal. The Tribunal has dismissed the appeal by impugned order dated 17 May 2013 on the ground that the appellant had not given cogent reasons for condonation of delay and that the appellant has been negligent. In the above view, the order dated 11 September 2012 of the CIT(A) was upheld. Aggrieved by the above order the appellant is in appeal before us. 6)We have heard the learned Counsel for the parties. Learned Counsel for the appellant-assessee states that there was a delay in filing the appeal by the assessee before the CIT(A). The appellant pointed out that his mother had died on 23 December 2008 and that shock had lasted for some time. This was not accepted by the CIT(A). The Counsel states that merely because the appellant's mother had died one year before the assessment order was passed did not mean that the appellant had given false reasons for condonation of delay. The appellant had only mentioned the circumstances he had under gone due to his mother's illness and subsequent death as factual aspects. Learned Counsel for the appellant submits that if the appeal is not entertained by CIT (A), the appellant will have to pay the tax on additional income of Rs.54,55,019/-. The subsequent order of penalty has also been passed by the Assessing Officer on the ground of above addition. Learned Counsel for the appellant submitted that the appellant had nothing to gain by remaining negligent in matters of filing the appeal. It is submitted that the Tribunal ought to have taken reasonable view and allow the appeal so that the appellant would be able to raise all contentions on merits before the CIT(A). On the other hand learned Counsel Mr. Pinto opposed the appeal and has submitted that no substantial question of law arises. 7)It is necessary to note that Tribunal decides the appeal before it and further appeal is filed in this Court under Section-260A of the Act. The non consideration of the delay in filing the appeal not being considered in right perspective would give rise to a substantial question of law. 8)In the facts and circumstances of the present case, the appellant had filed his first letter dated 7 July 2012 for condonation of delay on the ground that the appellant's mother was not keeping good health for last many years and died at the age of 87 years. That the appellant was only person to look after his mother and after her death was in not a proper state of mind for long time resulting in delay in filing the appeal. It is true that the appellant's mother died on 23 December 2008 and the assessment order was passed on 21 December 2009 and therefore, there was considerable time gap between two events. Similarly the appeal was filed on 15 November 2010. Thus, there was considerable time gap. However, each person reacts differently to the shocks which life administers from time to time. There can be no uniform standard of reaction by all persons to the unfortunate events. However, in the appeal filed before the Tribunal, the applicant sought to put the blame on the consultant who is no longer alive. This was indeed unfair and the Tribunal appears to have been of view that he ought not to have blamed the consultant who passed away before the Tribunal heard the appeal. We agree with the above view of the Tribunal. 9)In the peculiar facts and circumstances of the case, however, we are of the view that CIT(A) as well as Tribunal ought to have taken the liberal view and condoned the delay in filing the appeal. Even if CIT(A) was not satisfied with the ground set out in the appeal memo at the time of filing the appeal, CIT(A) should have called upon the Consultant appearing for the assessee before him to explain the delay as there was gap of almost one year between the death of the appellant's mother and the date of the assessment order. This does not appear to have been done. In the peculiar facts and the circumstances of the case, we are of the view that interests of justice would be served if delay is condoned and the appeal is heard on merits by the CIT(A) subject to payment of costs as directed hereafter. 10)Accordingly, the appeal is allowed. The impugned order dated 15 May 2013 of the Income Tax Appellate Tribunal in Appeal No.6488/Mum/2012 so also the order dated 11 September 2012 of the CIT(A) passed in assessee's appeal being appeal No. CIT(A)34/IT109/10-11 are set aside and the appeal is restored to the file of CIT(A). The CIT(A) shall proceed to hear the appeal on merits. This order is passed subject to the appellant paying costs of Rs.25,000/- to the Victoria Memorial School for Blind at Mumbai within two weeks from today, the appeal shall be entertained by CIT(A) after the receipt issued by Victoria Memorial School for Blind is produced before the CIT(A). 11)In the above terms, the appeal is disposed of. No order as to costs. CHIEF JUSTICE (M.S. SANKLECHA, J.)