2023 (6) TMI 1313 - AT - Income Tax

Condonation of delay - Delay of 1639 days - HELD THAT;- As basically the appeal has been filed after huge days of the ld. CIT s order but almost one and a half year is attributable to COVID period i.e. 15.3.2020 till 2.11.2021. This appeal has been presented before the Tribunal on 2.11.2021. If credit of number of days allowed by the Hon ble Supreme Court in 2022 (1) TMI 385 - SC ORDER regarding cognizance for extension of limitation even then there is substantial delay at the part of the assessee but we are of the view that the delay is for sufficient and reasonable cause. Moreover making the appeal time barred has not been used by the assessee as a tactics to avoid the litigation with the Revenue because such strategy would not give any benefit to the assessee in this type of litigation. Therefore we condone the delay and proceed to decide the appeal on merit. Ex-parte appeal decided by assessee - CIT(A) passed the order ex-parte without considering the merits of the case as the assessee could not attend the hearing before the ld. CIT(A) on the dates fixed for hearings - HELD THAT - We find that the ld. CIT(A) has decided the appeal ex-parte as the assessee could not be served the notices of fixing dates for hearing due to change of address. Under these circumstances we are of the considered view that the assessee should be given one more opportunity to present his case on merit. Accordingly we restored to the appeal back to the file of the AO to decide the same after affording reasonable opportunity of hearing to the assessee.

Summary

Issues involved:
The appeal of the assessee for the assessment year 2008-09 is directed against the order dated 09.03.2017 passed by the ld. Commissioner of Income-tax (Appeals)-17, Kolkata. The main issue is the delay in filing the appeal by the assessee, which is barred by limitation by 1639 days. The assessee filed a condonation petition seeking to condone the delay in filing the appeal due to various reasons, including the impact of the Covid-19 pandemic on court proceedings and change of address affecting communication of orders.

Delay in Filing Appeal:
The assessee's appeal was delayed by 1639 days, with a significant portion of the delay attributed to the Covid-19 period. The Hon'ble Apex Court extended the period of limitation from 15.03.2020 till 28.02.2022 for judicial and quasi-judicial proceedings. The Tribunal, considering the liberal interpretation of "sufficient cause" for delay, acknowledged the impact of the pandemic on court proceedings and the need for substantial justice over technicalities. Referring to legal precedents, the Tribunal highlighted the importance of not foreclosing a suitor's right to be heard due to delay and emphasized the need for a justice-oriented approach in such matters.

Decision on Delay:
The Tribunal, after examining the facts and considering the reasons for delay presented by the assessee, concluded that the delay was for sufficient and reasonable cause. Despite the substantial delay, the Tribunal found that the delay was not used as a tactic to avoid litigation with the Revenue. Therefore, the Tribunal condoned the delay and proceeded to decide the appeal on its merits.

Restoration of Appeal:
The assessee's counsel submitted that the order by the ld. CIT(A) was passed ex-parte without considering the merits of the case due to non-service of notices caused by a change in address. The Tribunal, after hearing both parties, decided to restore the appeal back to the file of the Assessing Officer (AO) to allow the assessee another opportunity to present their case on merit. The appeal was allowed for statistical purposes.

Conclusion:
The Tribunal, considering the delay in filing the appeal, the impact of Covid-19, and the need for substantial justice, condoned the delay and restored the appeal to the AO for a fresh decision after affording the assessee a reasonable opportunity of hearing. The appeal was allowed for statistical purposes.