TMI Blog2020 (11) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the appeal could not be brought within the realm of the provisions of Sec. 249(3). Shri Ketan Gandhi, director of the assessee company had also in order to buttress the aforesaid factual position as regards the delay in filing of the appeal deposed the facts on the basis of clearly worded affidavit. On the basis of the aforesaid factual matrix, we are of a strong conviction that in the absence of any facts proving to the contrary, the claim of the assessee that the delay in filing of the appeal was attributable on account of an inadvertent lapse on the part of its chartered accountant could not have been summarily scrapped, specifically 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). We thus condone the delay of 285 days involved in filing of the present appeal. Accordingly, in terms of our aforesaid observations, we herein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e course of the assessment proceedings for A.Y. 2012-13, it was observed by the A.O that the assessee had wrongly claimed deduction for interest on borrowed funds while computing its income under the head house property. In the backdrop of the aforesaid facts, the A.O observing that similar state of facts prevailed in the case of the assessee for the year under consideration i.e A.Y. 2008-09, therein reopened its case for the year in question under Sec. 147 of the Act. In compliance to the notice issued under Sec. 148 of the Act, dated 23.03.2015, the assessee filed its return of income on 17.06.2015 withdrawing its earlier claim of deduction of interest on borrowed funds of ₹ 11,06,722/-.The A.O framed the assessment vide his order passed under Sec. 143(3) r.w.s 147, dated 27.08.2015 and assessed the income of the assessee at ₹ 16,27,500/-. The AO while culminating the assessment also initiated penalty proceedings under Sec. 271(1)(c) for concealment of income and also for furnishing inaccurate particulars of income. Notice under Sec. 271(1)(c) r.w.s 274, dated 27.08.2015 was served upon the assessee, therein calling upon it to explain as to why penalty under Sec. 271( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the affidavit of the assessee s chartered accountant Shri Nishit Dave, partner of M/s Jayesh Dadia and associates LLP, wherein he had clearly admitted that the delay in filing of the appeal had occasioned on account of an inadvertent lapse on his part in filing the same within the stipulated time period. On the basis of the aforesaid facts, it was submitted by the ld. A.R that as no part of the delay in filing of the appeal could be related to the assessee company, which in fact, had crept in on account of a bonafide and an unintentional lapse on the part of its chartered accountant, the same may, therefore, in all fairness be condoned. In order to buttress his claim that delay in filing of an appeal that had occasioned on account of a bonafide lapse in all fairness ought to be condoned, the ld. A.R relied on the judgment of the Hon ble Supreme Court in the case of Collector Land Acquisition Vs. Mst. Kathiji and Others (1987) 167 ITR 471 (SC) and the judgments of the Hon ble High Court of Bombay in the case of Bajaj Bhavan Owners Premises Co-op Society Ltd. Vs. ITAT, Mumbai (2014) 45 taxman.com 213 (Bom); and (ii) Prima Paper Engineering Pvt. Ltd. Vs. CIT-V (2014) 41 taxman.com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... planation as regards the delay in filing of the appeal by trying to shift the same to its chartered accountant. 8. Admittedly, an appeal with a CIT(A) has to be filed within the stipulated time period as contemplated in sub-section (2) of Sec.249 of the Act. But then, the legislature in all its wisdom realising that there might be a situation where delay may be involved in filing of an appeal before the first appellate authority, had thus, in all fairness carved out an exception in sub-section (3) of Sec. 249 of the Act, which allows filing of an appeal beyond the stipulated time period, though, subject to a rider that the assessee comes up with a sufficient cause explaining the reasons leading to the delay in filing of the same. In our considered view, the fact that in the case before us the chartered accountant of the assessee company i.e Shri Nishit Dave, partner of M/s Jayesh Dadia and associates LLP, had filed an affidavit , dated 15.02.2019, therein instils sufficient confidence as regards the genuineness and veracity of the explanation of the assessee pertaining to the reasons leading to the aforesaid delay in filing of the present appeal. On a perusal of the affidavit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Supreme Court in the case of Ramnath Sao Vs. Gobardhan Sao [AIR 2002 Supreme Court 1201], it can safely be concluded that now when the explanation of the assessee in respect of the delay in filing of an appeal does not smack of malafides or a dilatory strategy on the part of the assessee, the said explanation cannot be merely turned down for the reason that delay is involved in filing of the appeal. We find that a similar view was earlier also taken by the Hon ble Supreme Court in the case of Collector Land Acquisition Vs. Mst. Kathiji and others (1987) 167 ITR 471 (SC) . The Hon ble Apex Court in the aforesaid case had concluded that a sufficient cause for the purpose of condonation of delay should be interpreted with a view to do even ended justice on merits in preference to an approach which scuttles a decision on merits. The delay as explained by the assessee had admittedly occasioned on account of failure on the part of its chartered accountant to file the appeal with the CIT(A) within the stipulated time period. We are of the considered view that as the assessee had came forth with a bonafide explanation as regards the delay in filing of the appeal before the CIT(A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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