Income Tax Appellate Tribunal - DelhiHar Prashad Bhutani, Ghaziabad vs Ito Ward - 1(3), Ghaziabad on 12 October, 2021IN THE INCOME TAX APPELLATE TRIBUNAL\n              DELHI BENCHES "SMC" : DELHI\n            [THROUGH VIDEO CONFERENCING]\n\n BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER\n\n                  ITA.No.1522/Del./2020\n                Assessment Year 2010-2011\n\nShri Harprashad Bhutani,\nNew Bhutani Agency,              The Income Tax Officer,\nBhutani Building, Main\nMarket, Govindpuri,          vs. Ward - 1 (3),\nModinagar, Ghaziabad.\nPIN - 201 201. U.P.              Ghaziabad.\nPAN AGKPB4684P\n        (Appellant)                     (Respondent)\n\n                For Assessee : Shri Sushil Antal, Advocate\n                For Revenue : Sh. R.K. Gupta, Sr. DR\n\n             Date of Hearing : 12.10.2021\n     Date of Pronouncement : 12.10.2021\n\n                           ORDERThis appeal filed by the Assessee is directed\n\nagainst the ex-parte Order dated 22.08.2019 of the Ld.\n\nCIT(A), Ghaziabad, relating to the A.Y. 2010-2011.2.        Although a number of grounds have been raised\n\nby the assessee, however, these all relate to the ex-parte\n\norder of the Ld. CIT(A) in dismissing the appeal filed by the2ITA.No.1522/Del./2020 Shri Harparshad\n                                                     Bhutani, Ghaziabad.assessee for non-prosecution and unjustifiable delay in\n\nfiling of the appeal.3.         Facts of the case, in brief, are that the assessee is\n\nan individual. As per the AIR information received, the\n\nassessee has deposited cash of Rs.47 lakhs in his S.B. A/c\n\nduring the F.Y. 2009-10. To verify the financial transaction\n\nmade by the assessee, the A.O. issued verification letters\n\ndated 11.01.2017 and 03.03.2017. However, there was no\n\ncompliance to the said verification letters. Therefore, the\n\nA.O. by invoking the      provisions ofSection 147of the\n\nIncome Tax Act, 1961, reopened the assessment after\n\nobtaining necessary approval from the Competent Authority\n\nand issued notice undersection 148of the I.T. Act, 1961\n\ndated 29.03.2017. The assessee did not file any reply in\n\nresponse to the said notice undersection 148of the Act.\n\nThe A.O, therefore, issued notice undersection 142(1)of the\n\nAct dated 20.04.2017 along with specific questionnaire\n\nfixing the case for hearing on 02.05.2017. Since, there was\n\nno response from the side of the assessee, the A.O.\n\nproceeded to complete the assessment undersection 144of3ITA.No.1522/Del./2020 Shri Harparshad\n                                                    Bhutani, Ghaziabad.theI.T. Act, 1961. He observed that the assessee filed return\n\nof income on 12.03.2011 declaring income of Rs.1,62,260/-.\n\nThe assessee himself appeared before the A.O. and filed\n\ncopy of bank statement only. Further, the assessee did not\n\nappear thereafter to explain the source of cash deposited in\n\nhis S.B. A/c along with supporting evidence. The A.O,\n\ntherefore, completed the assessment undersection 144/147of the I.T. Act, 1961 and determined the total income of the\n\nassessee at Rs.48,62,260/- by making an addition of Rs.47\n\nlakhs undersection 69of the I.T. Act, 1961.\n\n\n3.1.      Since there was a delay in filing of the appeal by\n\nmore than 04 months and despite issue of notice from the\n\nO/o. Ld. CIT(A) to substantiate the reasons for delay in\n\nfiling of the appeal as per the facts stated in Form No.35,\n\nthe Ld. CIT(A) did not condone the delay and treated the\n\nappeal as non-est being defective and dismissed the appeal\n\nof assessee in limine.4.        Aggrieved with such order of the Ld. CIT(A), the\n\nassessee is in appeal before the Tribunal.4ITA.No.1522/Del./2020 Shri Harparshad\n                                                    Bhutani, Ghaziabad.4.1.      There is a delay of 209 days in filing of the appeal\n\nbefore the Tribunal for which the assessee has filed an\n\napplication along with an affidavit seeking for condonation\n\nof delay. Learned Counsel for the Assessee referring to the\n\ncondonation application filed along with the affidavit of the\n\nassessee stated that the assessee is 74 years old and is\n\nsuffering from various old age related medical and health\n\nissues like ischemic heart diseases with poor cardiac\n\nfunction, peripheral neuropathy, prostate, diabetes and\n\nerratic high blood pressure, for which, he was underconstant medication. Since the assessee was advised\n\ncomplete bed rest by the Doctor due to his poor health, the\n\nassessee could not file the appeal intime. Referring to the\n\nvarious decisions, he submitted that the delay in filing of\n\nthe appeal before the Tribunal should be condoned.5.        After hearing both the sides, I condone the delay\n\nin filing of the appeal of the assessee before the Tribunal\n\nand the appeal is admitted for adjudication.6.        Learned Counsel for the Assessee submitted that\n\nthere was a delay of more than 04 months in filing of the5ITA.No.1522/Del./2020 Shri Harparshad\n                                                    Bhutani, Ghaziabad.appeal before the Tribunal. He submitted that as explained\n\nearlier the assessee is a Senior Citizen and is suffering from\n\nvarious diseases for which the appeal could not be filed in\n\ntime. He submitted that in the interest of justice and in view\n\nof the decisions already cited earlier for condonation of\n\ndelay in filing of appeal before the Tribunal, the delay in\n\nfiling of the appeal before the Ld. CIT(A) should be condoned\n\nand the appeal be heard on merit.7.        The Ld. D.R. on the other hand strongly opposed\n\nthe arguments advanced by the assessee and submitted\n\nthat the assessee is not serious in prosecuting the appeal\n\nfiled by him. Further, there was no response before the A.O.\n\nalso for which he was constrained to pass the ex-parte\n\norder. He accordingly submitted that the addition made by\n\nthe A.O. should be upheld.8.        I have heard the rival arguments made by both\n\nthe sides and perused the record. I find the assessee in the\n\ninstant case has made cash deposit of Rs.47 lakhs in the\n\nS.B. A/c maintained by him. Despite verification letters\n\nissued by the A.O. there was no response from the side of6ITA.No.1522/Del./2020 Shri Harparshad\n                                                     Bhutani, Ghaziabad.the assessee for which the A.O. reopened the assessment\n\nundersection 147of the I.T. Act, 1961 and issued notice\n\nundersection 148of the I.T. Act, 1961. I find during the\n\ncourse of assessment proceedings the assessee apart from\n\nfiling his bank statement did not appear before the A.O. to\n\nexplain the source of huge cash of Rs.47 lakhs deposited in\n\nhis S.B. A/c for which the A.O. was constrained to pass the\n\nassessment order undersection 144/147of the I.T. Act,\n\n1961 and made addition of the same. Since the appeal filed\n\nby the assessee before the Ld. CIT(A) was delayed by more\n\nthan 04 months, the Ld. CIT(A) held the appeal as non-est\n\nand defective since the assessee did not bother to explain\n\nthe reasons for delay in filing of the appeal before him. The\n\nLd. CIT(A), therefore, dismissed the appeal of assessee in\n\nlimine. It is the submission of the Learned Counsel for the\n\nAssessee that the delay in filing of the appeal before the Ld.\n\nCIT(A) is not intentional, but, due to bad health condition of\n\nthe assessee who is a Senior Citizen. It is his submission\n\nthat delay in filing of the appeal before the Ld. CIT(A) should\n\nbe condoned and the appeal should be heard on merit.7ITA.No.1522/Del./2020 Shri Harparshad\n                                                      Bhutani, Ghaziabad.8.1.         The Hon'ble Supreme Court in the case ofCollector, Land Acquisition vs., MST. Katiji & Ors., reported\n\nin [1987] 167 ITR 471 (SC) observed that when substantial\n\njustice and technical considerations are pitted against each\n\nother, cause of substantial justice deserves to be preferred\n\nfor the other side cannot claim to have vested right in\n\ninjustice being done because of a non-deliberate delay. The\n\nHon'ble Supreme Court while condoning the delay has laid\n\ndown the following guidelines :1.    Ordinarily a litigant does not stand to benefit by\n\n              lodging an appeal late.2.    Refusing to condone delay can result in a\n\n              meritorious matter being thrown out at the very\n\n              threshold and cause of justice being defeated. As\n\n              against this when delay is condoned the highest\n\n              that can happen is that a cause would be\n\n              decided on merits after hearing the parties.3.    "Every day's delay must be explained" does not\n\n              mean that a pedantic approach should be made.8ITA.No.1522/Del./2020 Shri Harparshad\n                                                          Bhutani, Ghaziabad.Why not every hour's delay, every second's\n\n             delay? The doctrine must be applied in a rational\n\n             common sense pragmatic manner.4.    When    substantial           justice     and          technical\n\n             considerations are pitted against each other,\n\n             cause of substantial justice deserves to be\n\n             preferred for the other side cannot claim to have\n\n             vested right in injustice being done because of a\n\n             non-deliberate delay5.    There is no presumption that delay is occasioned\n\n             deliberately,     or       on     account       of     culpable\n\n             negligence, or on account of mala fides. A litigant\n\n             does not stand to benefit by resorting to delay. In\n\n             fact he runs a serious risk.6.    It must be grasped that judiciary is respected not\n\n             on account of its power to legalize injustice on\n\n             technical grounds but because it is capable of\n\n             removing injustice and is expected to do so.\n\n\n8.2.        Considering      the    totality      of   the        facts   and\n\ncircumstances of the case and in the interest of justice and9ITA.No.1522/Del./2020 Shri Harparshad\n                                                     Bhutani, Ghaziabad.in view of Judgment of Hon'ble Supreme Court cited (supra),\n\nI direct the Ld. CIT(A) to condone the delay of 04 months in\n\nfiling the appeal before him and decide the issue on merit by\n\nadmitting the appeal. The assessee is also hereby directed to\n\nappear before the Ld. CIT(A) and substantiate his case\n\nwithout seeking any adjournment under any pretext, failing\n\nwhich, the Ld. CIT(A) is at liberty to pass appropriate orders\n\nas per Law. The grounds raised by the assessee are\n\naccordingly allowed for statistical purposes.9.         In the result, appeal of the Assessee is allowed for\n\nstatistical purposes.Order pronounced in the open Court at the time\n\nof hearing itself i.e., on 12.10.2021.Sd/-(R.K. PANDA)\n                                   ACCOUNTANT MEMBER\n\nDelhi, Dated 12th October, 2021\n\nVBP/-10ITA.No.1522/Del./2020 Shri Harparshad\n                                                     Bhutani, Ghaziabad.Copy to1.   The appellant2.   The respondent3.   CIT(A) concerned4.   CIT concerned5.   D.R. ITAT 'SMC' Bench, Delhi6.   Guard File.// By Order //\n\n\n\n\n          Assistant Registrar : ITAT Delhi Benches :Delhi.