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TMI Blog2020 (4) TMI 777X X X X Extracts X X X X X X X X Extracts X X X X ..... filed affidavit wherein it has also been submitted that such delay was occurred on account of extreme failure on the part of its counsel due to gross negligence as well improper handling of appellate matters. Ld. counsel submitted that for the gross negligence of the AR of the assessee, appeal could not be filed in time. Ld. counsel submitted that a lenient view may be adopted. Ld. counsel place reliance on various case laws as under:- S.No Particulars (Citations) 01 ) Vedabi alias Vijayantbai Patel vs. Shantaram Patel (2002) 253 ITR 798 SC) -, 02) Mahavir Prasad Jain vs. CIT (1988) 172 ITR 331 (MP) 03) M/s. Mihani Network vs. CCCE (2014) 23 ITJ 621 (MP) 04) M/s. Jetu Steels vs. DCIT (2012) 19 ITJ 616 (MP) 05) Hawkins Cookers Ltd vs. State of MP (WP no.15783, 15787 & 15788) Judgment dt. 04.11.2019 (MP) 06) Sujata Verma vs. ITO (2012) 20 IT} 5 (Indore Bench) 07) Narayan Balmukund Dubey vs. CIT (2016) 28 ITJ 348 (Indore Bench) 08) M/s. Emsons Organics Ltd vs. DCIT (Appeal No.1088 to 1092/CHD/2 0 18) [Chandigarh Bench) 09) M/s. Bhagwati Colonizers Pvt. Ltd, Mansa (Appeal No.169/Amr/2015) [Amritsar Bench] 3. On the other hand, Ld. Sr. DR opposed the submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch of the learned civil judge is wholly erroneous and his order is unsustainable. It is evident that the discretion under section 5 of the Limitation Act is exercised by the civil judge in contravention of the law laid down by this court, that the expression "sufficient cause" should receive liberal construction, in a catena of decisions (see State of West Bengal v. Administrator, Howrah Municipality, AIR 1972 SC 749 ; [1972] 1 SCC 366 and Smt. Sandhya Rani Sarkar v. Smt. Sudha Rani Debi, AIR 1978 SC 537 ; [1978] 2 SCC 116). The High Court in exercising its jurisdiction under section 115 of the Civil Procedure Code, failed to correct the jurisdictions error of the appellate court. For the aforementioned reasons, we set aside the impugned order of the High Court as well as that of the Civil Judge Amalner (the appellate Court) condone the delay of seven days in filing the appeal, restore the appeal to the file of the civil judge and direct the learned Civil Judge, Amalner, to decide the appeal on the merits. 5. Further, the Hon'ble M.P. High Court in the case of Mahaveer Prasad Jain vs. CIT (1988) 172 ITR 331(MP) held as under: 3. Having heard learned counsel for the parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egative. May be that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court, both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law." 4. Following the aforesaid decision, this application is allowed. Miscellaneous Petition No. 191 of 1981 is restored. As the petition can now be disposed of only by the Central Administrative Tribunal, the registry is directed to arrange to send the record of the case to the Tribunal. No order as to costs. 6. Further, the Hon'ble M.P. High Court in the case of M/s. Jetu Steels vs. DCIT (2012) 19 ITJ 616 (MP) held as under: "8. Having considered the submissions made by the Ld. counsel for the parties, we are of the view that the substantial question of law requires to be answered in favour of the assessee and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chemical Industries Ltd. v. Gujarat Industrial Development Corporation and another, (2010) 5 SCC 459 laying down the broad principles for adjudicating the issue of condonation of delay, In paras 14 and 15 observed as under:- "14. We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. 15. The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be condoned as for the mistake of advocate, the justice should not be deprived of. Accordingly, we condone the delay subject of cost of Rs. 10,000/- to be deposited in the account of Central Government. 9. Now, we take up the matter. The assessee has raised following grounds of appeal: "1.That the learned Commissioner of Income tax(A) erred in law in not affording reasonable opportunity of being heard while adjudicating the appeal in an exparte manner. He ought to have considered the facts and circumstances of the case viz. closure of Bhopal office and pendency of application for transfer of case records to Mumbai being reasonable and sufficient cause for nonattendance. There was no reason to avoid the hearing when huge demand was created. The appellate order so passed without considering the fact that business was closed due to losses and audited balance sheet and profit & loss account were placed on record along with certain details is, unjustified, improper, bad in law and deserves to be quashed. 2. That the learned Commissioner of Income tax (A) ought to have considered that in written submissions explaining the reasons for fall in gross profit and increase in direct ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was made for transfer the case records to Mumbai but due to technical reasons i.e. without prior transfer of PAN and proper compliance could not be made before the Assessing officer resulting in to passing of assessment order by the ITO, Bhopal. The local counsel at Bhopal did not properly attend the hearings and submitted partial details though assured to the assessee. Due to incomplete information the Income tax officer passed the order u/s 143(3) of the Act determining total income at Rs. 50,97,350/- by making following additions ;_ a) Gross profit on total turnover of Rs. 468.76 lacs was determined at Rs. 192.19 lacs i.e. 41% as against 33.18% disclosed by the appellant thereby addition ofRs. 36,65,070/- was made. b) By rejecting the books of accounts, establishment expenses to the extent of 10% were disallowed on adhoc basis at Rs. 10,07,830/-. 11. Being aggrieved, the assessee preferred appeal before the Commissioner of Income tax (Appeals)-II, Bhopal. The assessee company forwarded the notices received from the Commissioner of Income tax (Appeals)-II to its Advocate but he did not attend the hearings on any date though assured from time to time. The Commissioner of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considering the facts and perused the material available on record. We find that the learned Commissioner of Income tax(A) did not afford reasonable opportunity and pass the order in an ex-parte manner. Ld. CIT(A) did not consider the facts and circumstances of the case viz. closure of Bhopal office and pendency of application for transfer of case records to Mumbai being reasonable and sufficient cause for nonattendance. Ld. CIT(A) did not consider the fact that business was closed due to losses and audited balance sheet and profit & loss account were placed on record along with certain details and relevant records such as purchase bills, stock registers showing quantitative details, bills and vouchers etc. could not be produced because they were shifted to Mumbai due to closure of office at Bhopal as there being no proper communication from the counsel of the assessee, such records could not be produced. In view of these facts and in the interest of justice, the present matter deserves to be reconsidered at the level of the Ld. CIT(A) who will afford reasonable opportunity of being heard to the assessee and the assessee is also directed to cooperate with the Ld. CIT(A) by fili ..... X X X X Extracts X X X X X X X X Extracts X X X X
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