K. Raheja Homes P.Ltd, Mumbai vs Assessee

आयकर अपीलीय अिधकरण, अिधकरण मुंबई IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES 'A' MUMBAI सव ौी आय.पी. बंसल, याियक सदःय एवं ौी चं पुजारी, लेखा सदःय के सम । BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER

ITA NO.3781/Mum/2013 (A.Y.2010-11)

K. Raheja Homes Pvt. Ltd. The ACIT - Central Circle-23, Construction House "B", 2nd Floor Aayakar Bhavan 623, Linking Road, Khar (W) Vs. Mumbai-400 020. Mumbai-400 052. (Respondent) GIR No./PAN : AAACK 6579 K (Appellant )

Appellant by : Shri Sanjay Sawant Respondent by : Shri Asghar Zain

Date of hearing : 19/02/2015 Date of pronouncement : 25/02/2015

ORDER

PER CHANDRA POOJARI, A.M:

This appeal by the assessee is directed against the order of CIT(A) dated 18/03/2013 for the assessment year 2010-11. The grievance of the assessee is with regard to dismissal of the appeal without condoning the delay of 118 days in filing the appeal.

2. The assessee filed appeal belatedly before CIT(A). The appeal was required to be filed on or before 9/10/2012. However, it was filed on 4/2/2013. Thus, there was a delay of 118 days in filing the appeal before CIT(A). The assessee filed petition explaining the reason of delay before CIT(A) stating that the assessee's consultant one Mr. S.D. Purandare who first drafted the appeal was suffering from high blood pressure and diabetes. Later, he went for medical treatment and got admitted to Surana Hospital 2 ITA No. 3781/Mum/13

& Research Centre at Malad. He was advised to go for bypass surgery and accordingly he has undergone bypass surgery and as proof of this assessee enclosed medical certificate before CIT(A) and explained the reason for delay. However, CIT(A) observed that as per assessment order the case was not represented before AO by Mr. S.D. Purandare and on other hand, the assessee was represented before AO by Shri Sanjay Sawant, Adocate. Even otherwise appeal filed before CIT(A) was also not prepared by Mr. S.D. Purandare. Further CIT(A) observed that certificate issued by Surana Hospital & Research Centre stated that Mr. S.D. Purandare was advised complete rest for three weeks from 22/8/2012. The certificate dated 20/11/2012 issued by Surana Hospital & Research Centre stated that he was advised Angiogram and he need to stay in hospital for further treatment. According to ld. CIT(A) the assessee has not explained the delay satisfactorily. He refused to admit the appeal of the assessee stating that there is no sufficient cause for filing the appeal before him belatedly. Against this, the assessee is in appeal before us.

3. We have heard both parties and considered the material available on record. In this case admittedly there is a delay of 118 days in filing the appeal before CIT(A). The assessee filed petition explaining reasons for delay and prayed for condonation of delay. The reason stated by the assessee is ill-health of assessee's counsel one Mr. S.D. Purandare. In support of this claim assessee also enclosed medical certificate received from Mr. Purandare's Hospital. Ld. CIT(A) did not agree with the explanation offered by the assessee. According to CIT(A), the appeal was filed not by Mr. S.D. Purandare but by some other Counsel and the same could have been filed within prescribed time. In our opinion CIT(A) could not direct the assessee to whom he has to approach to file the appeal. There is no material before CIT(A) that the assessee has not approached Mr. S.D. Purandare for filing his appeal when the assessee filed the explanation explaining the reasons for delay and it is found bonafide it is to be accepted since otherwise refusing to condone the delay can result in meritorious matter being thrown at the very threshold and cause of justice being defeated. Ordinarily litigant does not stand to benefit by lodging an appeal belatedly. When the delay is condoned, the highest that 3 ITA No. 3781/Mum/13

can happen is that a case would be decided on merits after hearing the parties. When substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is caused/occasioned deliberately, or on account of culpable negligence of the assessee. It must be noted that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

3.1 In the present case, we find that the explanation given by the assessee is bonafide as there is no counter affidavit filed by the revenue stating that the explanation offered by the assessee is false. In the circumstances, we have to prefer substantial justice rather than technicality in deciding this issue. Therefore, this Tribunal is bound to remove the injustice by condoning the delay of 118 days otherwise it amounts to legalizing an illegal order which would result in causing injustice to the assessee. Accordingly, we are inclined to condone the delay of 118 days in filing the appeal before CIT(A). The delay is condoned and the issue on merit is to be decided by CIT(A).

4. The appeal of the assessee is allowed.

Order pronounced in the open court on 25/02/2015 आदे श क घोषणा खुले यायालय म# $दनांकः 25/02/2015 को क गई ।

Sd/- Sd/- (आय.पी. बंसल / I.P. BANSAL) (चं पुजारी /CHANDRA POOJARI ) याियक सदःय / JUDICIAL MEMBER लेखा सदःय / ACCOUNTANT MEMBER

मुंबई Mumbai; $दनांक Dated 25/02/2015 व.िन.स./Jv, Sr. PS 4 ITA No. 3781/Mum/13

आदे श क ूितिल+प अमे+षत/Copy षत of the Order forwarded to : 1. अपीलाथ. / The Appellant 2. ू/यथ. / The Respondent. 3. आयकर आयु0(अपील) / The CIT(A)- 4. आयकर आयु0 / CIT 5. +वभागीय ूितिनिध, आयकर अपीलीय अिधकरण, मुंबई / DR, ITAT, Mumbai 6. गाड फाईल / Guard file.

आदे शानुसार/ ार BY ORDER, स/या+पत ूित //True Copy//

उप/सहायक उप सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपीलीय अिधकरण, अिधकरण मुंबई / ITAT, Mumbai