Itxa/617/2012 Of Smt. Jignasha D. Shah v. Commissioner Of Income Tax - 13

sas IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.617 OF 2012 Smt. Jignasha D. Shah ..Appellant. V/s. Commissioner of Income Tax-13, Mumbai ..Respondent. Mr. K. Gopal with Jitendra Singh for the appellant.Mr. Suresh Kumar for the respondent. CORAM : J.P. DEVADHAR AND M.S. SANKLECHA, JJ. M.S. SANKLECHA, JJ. DATED : 21ST MARCH, 2013 P.C. :- 1.In this appeal by the revenue for the assessment year 2005-06, following questions of law are raised for our consideration :- A.Whether the Tribunal is correct in law in rejecting the appeal of the appellant without condoning the delay ?the appellant without condoning the delay ? B,Whether the order passed by the Tribunal is perverse as the same is passed without appreciating the materials filed before it in proper perspective ?same is passed without appreciating the materials filed before it in proper perspective ? 2.The Tribunal by the impugned order refused to entertain the appeal filed by the respondent-assessee against the order dated 23[rd] October, 2008 of the CIT passed under Section 263 of the Income Tax Act, 1961 (the Act). This was on account of delay of 423 days in filing the appeal. The appellant had sought to explain the delay of 423 days in filing the appeal before the Tribunal by filing an affidavit of Chartered Accountant who had advised that the appeal need not be filed against the order in Revision dated 23[rd] October, 2008. In that view of the matter, the appellant had not preferred appeal from the order dated 23[rd] October, 2008. The Tribunal records the fact that the consequent to order in revision, the assessing officer passed freash order on 26[th] November, 2009 while the appeal before the Tribunal against the order in revision under Section 263 of the Act was filed on 8[th] February,2010. In this view of the matter, the Tribunal was of the view that the delay in filing the appeal was not bonafide. 3.We find that the appellant had not originally filed any appeal against the order under Section 263 of the Act passed by CIT. This was on account of advice of a Chartered Accountant. It is well settled that a litigant / client should not suffer merely on account of inappropriate advice given by a professional, therefore, the delay had arisen only on account of professional advice and not on account of any negligence on the part of the appellant. In these circumstances, it would be just and proper to condone the delay in filing the appeal before the Tribunal and the same is condoned by us. The Tribunal should take up the appeal filed by the appellant against the order dated 23[rd] October, 2008 passed by the CIT under Section 263 of the Act for disposal on merits at its earliest. 4.The appeal is disposed of with the above directions with no order as to costs. (M.S. SANKLECHA, J.) (J.P. DEVADHAR, J.)