TaxTMI 
TaxTMI 
2020 (11) TMI 169
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....n the following grounds of appeal before us: "1. The ld. CIT(A) has erred in law and on the facts of the case in not condoning the delay in filing the appeal. The default was honest and not with malafide intentions and beyond the control of your Petitioners. 2. The Ld. CIT (A) has erred in law and on the facts of the case in confirming the penalty levied by the Assessing Officer which is made on the basis of defective notice as the Assessing Officer has not specified under which limb penalty is being initiated. 3. The Ld. CIT (A) has erred in law and on the facts of the case in confirming the act ion of assessing of f icer levying penalty of Rs. 3,32,016/ - under sect ion 271(1)(c) of the Income Tax Act. The action is unjustified and unwarranted. 4. Your Petitioners crave leave to add, amend, alter and / or withdraw any or all the aforesaid ground of appeal." 2. Briefly stated, the assessee company which is engaged in the business of providing financial services had filed its return of income for A.Y. 2008-09 on 25.09.2008, declaring its total income at Rs. 4,81,757/-. The return of income filed by the assessee was initially processed as such under Sec. 143(1) of the Act. ....
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....ate authority was on account of an inadvertent lapse on the part of the assessee's Chartered accountant i.e Shri Nishit Dave, partner of M/s Jayesh Dadia and associates LLP. It was averred by the ld. A.R that though the assessee company had delivered the order passed by the A.O under Sec. 271(1)(c), dated 18.02.2016 to its chartered accountant i.e Shri Nishit Dave on 23.02.2016, however, the latter had inadvertently on account of an oversight failed to file the appeal within the stipulated time period with the CIT(A). It was submitted by the ld. A.R that it was only in the month of December, 2016, that Shri Nishit Dave on learning about his mistake had as on 03.01.2017 e-filed the appeal involving no further loss of time. In the backdrop of the aforesaid facts, it was submitted by the ld. A.R that the delay in filing of the aforesaid appeal was clearly attributable to the assessee's chartered accountant, and thus, the assessee should not be made to suffer for no fault on its part. In order to fortify the aforesaid factual position the ld. A.R took us through the 'affidavit' of the director of the assessee company i.e Shri Ketan Gandhi. Also, our attention was drawn to the 'affidavi....
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....heard the authorized representatives for both the parties, perused the orders of the lower authorities and the material available on record, as well as the judicial pronouncements pressed into service by them to drive home their respective contentions. Admittedly, the appeal filed by the assessee company before the CIT(A) involved a delay of 285 days. As observed by us hereinabove, the CIT(A) being of the view that the assessee had failed to come forth with any sufficient cause leading to the aforesaid delay, had thus, dismissed the appeal as barred by limitation within the meaning of Sec. 249(3) of the Act. On a perusal of the order the CIT(A), we find, that he had declined to accept the explanation of the assessee leading to the delay in filing of the appeal, for two fold reasons, viz. (i). that it was beyond comprehension that the chartered accountant of the assessee company being a trained professional could act in such a negligent manner; and (ii). that the functionaries of the company could not have been expected to have adopted a similar callous approach. In sum and substance, the CIT(A) was of the view that the assessee had merely came up with the casual explanation as rega....
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....fically when the assessee's chartered accountant had filed an 'affidavit' supporting the aforesaid factual position. As such, we are of the considered view that the delay in filing of the present appeal can safely be held to be attributable on account of a lapse on the part of the chartered accountant, which in no way would suffice for justifying the declining of the admission of the appeal by the CIT(A). Our aforesaid conviction is further supported by the fact that as is discernible from the records, the assessee had acted in a responsible manner and had delivered the penalty order under Sec. 271(1)(c), dated 18.02.2016 to its chartered accountant on 23.02.2016. Our view as regards the bonafide conduct of the assessee is also fortified from the fact that now when involving identical facts the assessee had filed appeals before the CIT(A) for A.Y. 2012-13 and A.Y. 2014-15 on 03.06.2015 and 17.02.2017 i.e well within the stipulated time period, therefore, it is difficult to comprehend that it would had intentionally delayed the filing of the captioned appeal for the year under consideration. We are of considered view that keeping in view the judgment of the Hon'ble Supreme Court in ....