TaxTMI 
TaxTMI 
2019 (2) TMI 1661
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....s erred in objecting to the condonation of delay, that too, on his own initiative, without a remand report being called for. The very action of the assessing officer shows the hostility with which he has acted while completing the assessment. 4. Basic purpose of appeal is to provide justice to the appellant. By not condoning the delay on valid grounds, the CIT(A) has acted against the legislative intent behind the appellate proceedings, that too, in a case where a high pitched ex-parte assessment has been made on the appellant purely based on the statements of third persons, that too, without providing an opportunity to cross examine those persons. 5. Since the assessments were made ex parte and the huge additions were made solely based on the statements of third persons and since Commissioner of Income Tax (Appeals) has no power to set aside the assessment and remand the case back to the assessing officer, in order to avoid futile multiple proceedings, it is prayed to set aside the assessment and remand the case back to the assessing officer with a direction to provide an opportunity to the appellant to be heard and to cross examine the persons on whose statements are relied....
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....ave a relook at order u/s 230. During the course of hearing, it was submitted that M/s Al-Zarafa Travels and Manpower Consultants Pvt. Ltd has decided to file appeals against the assessment and penalty orders passed. It is seen that the company has decided to file appeals after around 19 months of delay therefore, apparently bared by limitation. The assessee in the appeals has raised the following grounds: i. After search, the company was abandoned by Shri. Renny Eapen and other director being his spouse Mrs. Susan Thomas was not in knowledge about the happenings in the company. ii. Shri. Varughese M. Uthup came to know about the assessment orders passed only on 13.03.2018 and after that the employees of the company were contacted and the assessment was received. iii. The subsequent delay is due again inaction by the other director and time was taken to get digital signature facility and PAN. As one of the directors, it is the bounden duty of Smt. Susan Thomas to show due care and diligence in respect of the company. Her gross neglect and breach of duty of her part in relation to the affairs of the company and claiming lack of knowledge about the happenings cannot be....
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....ccountant of the company and was received by Shri. Varughese M. Uthup on 13.03.2018. vi. Smt. Susan Thomas had to obtain digital signature, so that the appeal could be filed. 5.1 After considering the reasons given by the assessee, the CIT(A) found these reasons quite frivolous. According to the CIT(A), Shri Renny Eapen, the Managing Director abandoning the company, Smt. Susan Thomas, the other director, not being aware of the happenings, even though she is the wife of Shri Varughese M. Uthup, the main person controlling the affairs of the company was far from convincing. In fact, it was observed that all the happenings, postsearch, was a story of non-cooperation on the part of the company and nothing was beyond control of the assessee company. The CIT(A) was of the opinion that both Mr. Renny Eapen, Mrs. Susan Thomas and also Mr. Varughese M. Uthup were well aware of their responsibilities and consequences. The CIT(A) was of the opinion that the non-cooperation and delay was willful and therefore, the delay in filing the appeal cannot be condoned. Since delay in filing the appeal was not condoned, the grounds of appeal relating to the merits of the case were also not consider....
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....e staff member came to the Railway Station at Ernakulam Junction and handed over the assessment orders of the company to me. Since the Managing Director of the Company. Sri. Renny Eapen could not be contacted, the assessment orders were retained by me. I was not aware of its relevance and importance. On 15.02.2017, I handed over the assessment orders to the erstwhile Chartered Accountant of the company Sri. James Thomas at his residence at Kottayam. The Chartered Accountant advised me to request the Managing Director Sri. Renny Eapen to contact him for taking further steps. However, I could not contact the Managing Director Sri. Renny Eapen. On 13.03.2018, Sri. Varughese M. Uthup contacted me and asked me whether I had received any communication from Income Tax Department. I appraised him about the fact that the assessment orders were handed over to Chartered Accountant, Sri. James Thomas." 6.2 He also drew our attention to the death certificate of assessee's ex- Chartered Accountant, Shri James Thomas dated 15/06/2018. He placed reliance on the condonation petition filed before the CIT(A) and explained the reason for delay in filing the appeal before the CIT(A) as follows:....
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....y Sri. Renny Eapen abandoned the Company, the ex-employee, after waiting for one and a half months handed over the assessment orders to the erstwhile Chartered Accountant of the Company Sri. James Thomas on 15.02.2017. Sri. James Thomas was sick and was confined to his house and on 15.06.2018 he succumbed to his sickness and died. Smt. Susan Thomas's husband Mr. Varughese M. Uthup had collected the assessment orders from the Chartered Accountant on 13.03.2018. After that he contacted another Chartered Accountant to file the appeal, but only then it was known that Digital Signature is required for filing the appeal as the Department had changed the procedure of filing appeal from manual to online. When it was tried to get Digital Signature it was known that PAN was mandatory for obtaining Digital Signature. Smt. Susan Thomas being non - resident for more than 20 years had no PAN. She had to apply for PAN. The application forms were to be prepared and sent to UAE. After affixing the signature, the same had to be returned to India. The postal delay took considerable time. Moreover, allotment of PAN took nearly 2 weeks. After getting PAN, application for Digital Signature had to be....
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....ang/2016 dated 02/12/2016). c) Elnet Technologies Ltd. vs. DCIT (ITA No.997/2008 dated 08/10/2018)(Mad.). d) Rajeshsingh Khadak Bahadur vs. ITO (ITAT, Ahmedabad Bench)(ITA Nos. 615&616/Ahd/2014 dated 25/06/2015). 7. On the other hand, the Ld. DR relied on the order of the lower authorities and submitted that there is no reasonable cause for filing the appeals belatedly by 510 days and the condonation petition is to be dismissed. 8. We have heard the rival submissions and perused the record. There was a delay of 510 days from the date of receipt of the assessment order by the exemployee of the assessee to the filing of the appeal by the assessee. On the other hand, it was submitted that the delay would be 71 days from the date of receipt of the assessment order taken as the date on which Smt. Susan Thomas's husand received the assessment order from the ex-chartered accountant of the assessee. In our opinion, at this stage, it is more appropriate to consider the date of receipt of the assessment order by the husband of Smt. Susan Thomas as the effective date of receipt of the assessment order so as to condone the delay in this case. We have gone through the condonation peti....
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....nalty demand of M/s Al-Zarafa Travels and Manpower Consultants Pvt. Ltd. Due to complete non-cooperation by the assessing company, the assessment of the company had to be completed with the help of materials available on record. Taking into account the contumacious conduct of the said Shri Varughese M. Uthup an order u/s 230 of the IT Act was passed on 05/03/2018 after approval from the DGIT, rendering it necessary for him to obtain a certificate from the Income Tax Authority that he has no liabilities under this act or the wealth tax act or that satisfactory arrangements have been made for the payment of all or any such taxes that had become payable before he leaves the territory of India. Shri Varughese M. Uthup filed a writ petition against order u/s 230. The High Court Kerala upheld the order passed u/s 230. The matter was then taken to the Division Bench of the High Court Kerala wherein also it was upheld. The order passed u/s 230 had an element of demand passed u/s 179 being the demand of M/s Al-Zarafa Travels and Manpower Consultants Pvt. Ltd. The High Court Kerala had also directed this office to redo the order u/s 179 and also have a relook at order u/s 230. During the cou....
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....te. (2) Refusing to condone delay can result in a meritorious matter being thrown at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. (3) 'Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational, commonsense and pragmatic manner. (4) When substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. (5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk. (6) It must be grasped that the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice ....
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....opment Society (PEEDS) v. ITO (100 ITD 87) (Chennai) (TM ) condoned more than six hundred days delay. It is pertinent to mention herein that the view taken by the present author in that case was overruled by the Third Member. 8.7 We also place reliance on the decision of this Tribunal in the case of Midas Polymer Compounds (P.) Ltd vs. Asstt. CIT in ITA No. 288/Coch/2017 dated 25/06/2018 wherein this Tribunal condoned the delay of 2819 days. Insofar as the reliance on the decision of the Tribunal in the case of Midas Polymer Compounds (P) Ltd. cited supra is concerned, we are of the view that the Tribunal condoned the delay on the part of the assesse in filing the appeals by observing that the Chartered Accountant who was handling the matter failed to take proper steps to file the appeals and the Chartered Accountant filed affidavit stating that the appeals for AYs. 1999-2000 to 2004-05 in respect of the group concern and appeals for the AYs. 2005-06, 2007-08 and 2008-09 of the assessee were filed and represented by the Chartered Accountant at Cochin and he was under the impression that the appeal for the AY 2006-2007 was also filed by that Chartered Accountant in Cochin. It was ....
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....f the Judgment of the Apex Court. Furthermore, the Revenue has not filed any counter-affidavit opposing the application of the assessee for condonation of delay. The Apex Court in the case of Mrs. Sandhya Rani Sarkar vs. Smt. Sudha Rani Debi (AIR 1978 SC 537) held that non-filing of affidavit in opposition to an application for condonation of delay may be a sufficient cause for condonation of delay. In this case, the Revenue has not filed any counter-affidavit opposing the application of the assessee, therefore, as held by the Apex Court, there is sufficient cause for condonation of delay. The Supreme Court observed that when the delay was of short duration, a liberal view should be taken. "It does not mean that when the delay was for longer period, the delay should not be condoned even though there was sufficient cause. The Apex Court did not say that longer period of delay should not be condoned. Condonation of delay is the discretion of the Court/Tribunal. Therefore, it would depend upon the facts of each case. In our opinion, when there is sufficient cause for not filing the appeal within the period of limitation, the delay has to be condoned irrespective of the duration/period....