TaxTMI 
TaxTMI 
2024 (8) TMI 42
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....1) of the Act was also issued and duly served upon the assessee. The Ld. AO finalize the assessment proceedings by making addition to the tune of Rs. 58,44,389/- and has assessed at Rs. 1,53,38,090/-. The Ld. AO also initiated penalty proceedings u/s. 271(1)(c) of the Act on the ground that the assessee has furnished inaccurate particulars of his income. The assessee filed appeal against the assessment order, the Ld. CIT(A)-26, Mumbai vide order dated 23.09.2019 allowed the appeal of the assessee against the addition of Rs. 1,76,094/-. 3. During the appeal effect order of the quantum appeal the penalty proceedings were initiated. In the meantime, Faceless Penalty Scheme, 2021 was launched on 12.01.2021, accordingly, the penalty proceedings were transferred to the Regional Faceless Penalty Center. The National Faceless Assessment Centre, Delhi therefore imposed minimum penalty of Rs. 17,51,503/- u/s. 271(1)(c) of the Act and the approval of the Ld. Addl. CIT Delhi was also obtained as per Section 274(2) of the Act. 4. That penalty order dated 28.02.2022 for the A.Y. 2012-13 was challenged before the Ld. CIT(A) who by order dated 06.12.2023 i.e., the impugned order has dismisse....
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....oduced as under: 3. "As per Form 35 filed by the appellant, the order u/s 271(1)(c) against which this appeal has been filed, was passed on 28-02-2022 and was received by the appellant along with the demand notice on the same day. Thus, the appeal before the CIT(A) was required to be filed by electronic mode within 30 days of receipt of the order and demand notice by the appellant. However, it is found that the appeal has been filed only on 14-04-2023 resulting in a delay of 380 days. The appellant has admitted this delay in Form 35 and has filed request for condonation of delay as under: "I am presenting before Your Honour my appeal under section 246A of the Act against the penalty order dated 28.02.2022 under section 271(1)(c) passed by the Assessing Officer, NFAC, Delhi (AO), for the assessment year 2012-13 imposing a penalty of Rs. 17,51,503. The impugned penalty order dated 28.02.2022 was received by an email on or around 28.02.022. The appeal against the same was to be filed within 30 days thereof in terms of section 249(2) of the Act. But I am presenting the appeal now. Admittedly, therefore, there is a delay in presenting this appeal before Your Honour, bu....
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.... order at that time. Admittedly, there is some negligence, though nondeliberate, on the part of my staff because of which this delay in filing this appeal has occurred. I am enclosing herewith a duly sworn affidavit by my staff Mrs. Pooja Ashanand Mishra affirming the above facts. Your Honour will appreciate that the delay in filing this appeal is non- deliberate, inadvertent and bona fide. Your Honour will also appreciate that there is no mala fide intention on my part in filing this appeai late. On the contrary, I run the risk of being denied justice though I have a good case on merits." 8. On perusal of the impugned order, it is noticed that the Ld. CIT(A) has relied upon the various judgments of Hon'ble Apex Courts, High Courts and the ITAT and reached to the conclusion in para no. 5.8 and 5.9 while declining the condonation of delay as under: "5.8. Thus, it is crystal clear from the above legal proposition that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case and that, the expression 'sufficient cause cannot be liberally interpreted, if negligence, inaction or lack of bona fi....
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....ecisions notwithstanding, we reiterate that condonation of delay being a discretionary power available to courts, exercise of discretion must necessarily depend upon the sufficiency of the cause shown and the degree of acceptability of the explanation, the length of delay being immaterial. Sometimes, due to want of sufficient cause being shown or an acceptable explanation being proffered, delay of the shortest range may not be condoned whereas, in certain other cases, delay of long periods can be condoned if the explanation is satisfactory and acceptable. Of course, the courts must distinguish between an 'explanation' and an 'excuse'. An 'explanation' is designed to give someone all of the facts and lay out the cause for something. It helps clarify the circumstances of a particular event and allows the person to point out that something that has happened is not his fault, if it is really not his fault. Care must however be taken to distinguish an 'explanation' from an 'excuse'. Although people tend to see 'explanation' and 'excuse' as the same thing and struggle to find out the 15 difference between the two, there is a distinction which, though fine, is real. An 'excuse' is often o....
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....re also to be considered when deciding such applications for condonation of delay. d. Further, a distinction should be drawn between inordinate unexplained delay and explained delay, where in the present case, the first respondent had sufficiently explained the delay on account of negligence on part of the government functionaries and the government counsel on record before the Reference Court. e. The officer responsible for the negligence would be liable to suffer and not public interest through the State. The High Court felt inclined to take a pragmatic view since the negligence therein did not border on callousness." 10. The appellant has very fairly admitted before the Ld. CIT(A) that there is delay of 380 days in filing the appeal. The appellant has very genuinely given the reasons for condonation of delay before the Ld. CIT(A) and has even filed the affidavit of the concerned employee who was responsible for receiving emails on behalf of the appellant. The said affidavit of Mrs. Pooja Ashanand Mishra is relevant and reproduced as under: "1. I am working for the last 4 years with Mr. Naresh Topandas Aidasani (PAN: ADYP/6970A) at 415, Arenja Corner....
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....ves in the last one and half year as I had to attend the newborn child I had left home. I also remained quite disturbed and distracted in those days, which perhaps could have contributed to the lapse on my part in noticing the above referred notice dated 31.12.2021 and the above referred penalty order dated 28.02.2022 from the Income- tax Department. I make the above statements conscientiously believing the same to be true at Navi Mumbai on 13 day of April 2023." 11. Thus, it is evident from the affidavit of Mrs. Pooja Ashanand Mishra that she inadvertently failed to notice the email containing the order dated 28.02.2022 sent on the email of the appellant. She has given the detail reasons for the said missing of the notices of the email. We have no reason to disbelieve the affidavit of Mrs. Pooja Ashanand Mishra. 12. Nothing contrary has been brought on record by the respondents which may contradict and falsify affidavit of employee of the appellant in support of seeking condonation of delay. The Hon'ble Supreme Court in the case of Collector, Land Acquisition Vs. MST. Katiji & Ors., [1987] 167 ITR 471 (SC), dated 19.02.1987, was pleased to hold regarding the con....