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.

1. The above captioned appeals filed at the instance of the assessee pertaining to Assessment Year 2014-15 are directed against the various order of Ld. Commissioner of Income Tax(Appeals)-13 (in short Ld. ‘CIT(A)’), Ahmedabad on 02.05.2018 which are arising out of the order u/s 143(3)/271(1)(c) & 154 of the Income Tax Act 1961(In short the ‘Act’) on 16.12.2016, 20.12.2016 & 22.05.2017 framed by ITO (Intl. Txn.), Bhopal(in short Ld. ‘A.O).

2. Assessee has raised following grounds of appeal:-

Appeal No.ITA/78/Ind/2019 Assessment Year 2014-15

On the facts and the circumstances of the case:-

1. That the assessment u/s 143(3) is invalid, without jurisdiction, barred by limitation, illegal and liable to be quashed. (Tax Effect :20,88,985/-)

2. That the Ld, CIT(A) was unjustified in passing an ex-parte order without giving meaningful opportunity to the appellant. (Tax Effect :20,88,985/-)

3. That the Ld CIT(A) was unjustified in not condoning the delay in filing the appeal and not considering the case on merits. (Tax Effect :20,88,985/-)

4. Without prejudice, the Ld CIT(A) erred in sustaining addition of Rs. 6,00,000/- on account of unexplained investment u/s 69 of the Act.{Tax Effect :1,85,400/-)

5. Without prejudice, the Ld CIT(A) erred in sustaining addition of Rs. 61,00,000/- on account of unexplained investment u/s 69 of the Act. (Tax Effect :18,84,900/-)

6. Without prejudice, the Ld CIT(A) erred in sustaining addition of Rs. 60,470/- on account of unexplained investment u/s 69 of the Act. (Tax Effect :18,685/-)

7. The appellant craves leave to add, amend or modify any of the grounds of appeal.

Appeal No.ITA/79/Ind/2019 Assessment Year 2014-15

On the facts and the circumstances of the case:-

1. That the penalty order is invalid, unjustified and liable to be quashed. (Tax Effect :20,28,200/-)

2. That the Ld CIT(A) was unjustified in not condoning the delay in filing the appeal (Tax Effect :20,28,200/-)

3. Without prejudice, the Ld CIT(A) erred in passing an ex-parte order without providing a reasonable opportunity to the appellant. (Tax Effect :20,28,200/-)

4. Without prejudice, the Ld CIT(A) erred in sustaining the penalty u/s 271(1)(c ) as the assessment order itself is void-ab-initio (Tax Effect :20,28,200/-)

The appellant craves leave to add, amend or modify any of the grounds of appeal.

Appeal No.ITA/80/Ind/2019 Assessment Year 2014-15

On the facts and the circumstances of the case:-

1. That the assessment u/s 154 is invalid, bad in law and deserves to be quashed. (Tax Effect :10,45,950/-)

2. That the IL, CIT(A) was unjustified in passing an ex-parte order without giving meaningful opportunity to the appellant. (Tax Effect : 10,45,950/-)

3. That the Ld CIT(A) was unjustified in not condoning the delay in filing the appeal (Tax Effect : 10,45,950/-)

4. Without prejudice, the Ld. CIT(A) was not justified in upholding the order passed u/s 154 where the only reason for passing such order was charging of interest u/s 234A and 234B, which is debtable in nature (Tax Effect 10,45,950/-)

5. Without prejudice, the Ld. CIT(A) was unjustified in not considering the fact that if the interest u/s 234A & 234B is not charged while passing the assessment order it means that assessing officer had waived the interest (Tax Effect :10,45,950/-)

6. Without prejudice, the Ld. CIT(A) erred in sustaining interest u/s 234A to the tune of Rs.3,55,623/- (Tax Effect: 3,55,623/-)

7. Without prejudice, the Ld. CIT(A) erred in sustaining interest u/s 234B to the tune of Rs.6,90,327/- (Tax Effect: 6,90,327/-) The appellant craves leave to add, amend or modify any of the grounds of appeal.

3. As the issues raised in these appeals are common and pertains to the same assessee they were heard together and are being disposed off by this common order for the sake of brevity and convenience.

4. At the outset Ld. Counsel for the assessee submitted that in the impugned orders Ld. CIT(A) has dismissed assessee’s appeals for delay in filing of appeal. The delay was for 491 days. Though the assessee requested for condoning the delay giving reasonable and sufficient cause which prevented the appellant to file the appeal within the stipulated time provided in Section 249 Sub Section (2) of the Act, Ld. CIT(A) was not convinced and he rejected the request for condonation of delay and dismissed all the three appeals. Ld. Counsel for the assessee requested that primarily Ground No. 2 & 3 may please be taken which pertains to passing of ex-parte order by Ld. CIT(A) by not condoning the delay in filing the appeals.

5. With the consent of both the parties we first take up Ground No. 2 & 3 commonly raised in all these appeals.

6. Ld. Counsel for the assessee referred to following submissions;

1. Assessee migrated to Spain in 1986. He did investment in Indore during the year under consideration.

2. Assessment order was served on watchman, who used to reside in the Bungalow of appellant. Watchman gave it to Mr. Pahuja after 15 days and after receiving the order, Shri Pahuja contacted the CA. Shri Narendra Bhandari and handed over the order to him to file the appeal.

3. That after handing over the papers, Mr Pahuja was under the impression that appeal will be filed.

4. Thereafter, since the appeal could not be filed, later Mr. Pahuja approached Shri N. Purandre CA. In the notice of demand issued u/s 156, it was also mentioned that appeal of the order may be filed to CIT(A}, Bhopal within 30 days from the receipt of the notice. As the matter relates to a NRI, the CIT(A), Bhopal has got no jurisdiction to hear the appeal.

5. Ultimately, when Mr. Pahuja approached Mr Sourabh Purohit, the appeal was filed. As per the provisions of Income Tax Act, the appeal was required to be 27th January 2017, but it could be filed only on oz'" May 2018.

6. In all this, the appeal remained to be filed. The delay was caused as the assessee was a non-resident and improper communication with the assessee and earlier counsel. There was no malafide intention.

It is, therefore requested that the delay in filing appeal may please be condoned and the appeal may kindly entertained. If the delay is not condoned, the assessee shall be deprived of justice. Further a cause of substantial justice shall be defeated. He relied on following judgments;

(i) Collector, Land Acquisition Vs. Mst. Katiji & 05 167 ITR 471(SC)

(ii) Vijay Vishin Meghani vs DClT 86 taxmann.com 98 (Bom.)

(iii) Improvement trust, Ludhiana Civil Appeal No. 2395 of 2008 (SC)

7. Per contra Ld. Departmental Representative vehemently argued supporting the order of Ld. CIT(A) and opposed to the request made by the Ld. Counsel for the assessee.

8. We have heard rival contentions and perused the records placed before us and carefully gone through the judgments placed and relied before us. The issue commonly raised by the assessee in Ground No. 2 & 3 of the instant appeals are against the findings of Ld. CIT(A) not condoning the delay in filing the appeal before him and dismissing the appeals in limine without adjudicating the issues on merits.

9. As regards delay in filing the appeal, the Ld. Counsel for the assessee has given reasons in the written submissions which intends to explain that the assessee being a non resident was dependent on his counsel for the legal remedies available in the Act against the additions made by the Ld. A.O. Since the assessee was residing outside India the assessment order was served to the watchman thereafter handed over to the counsel for taking necessary action. However the counsel failed to take any action during the time permitted for filing the appeal which caused the delay. Assessee was in bonafide belief that appeal has been filed by the due date but when it came to his notice that no appeal has been filed by the counsel appointed by him, he changed the counsel who filed the appeal before Ld. CIT(A).

10. Primarily it seems that the delay was not intentional and there was a reasonable cause preventing the assessee to file the appeal before Ld. CIT(A) and if the issues are not adjudicated on merits, justice will be denied to the assessee.

11. We find that the Hon'ble Supreme Court in the case of Collector, Land Acquisition Vs. Mst. Katiji & 05 167 ITR 471 dealing with similar issue of delay in filing appeal held as under:-

"(1) Ordinarily, a litigant does not stand to benefit by lodging on appeal late.

(ii) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

(iii) "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a ration a" common sense and pragmatic manner.

(iv) 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.

(v) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence or on account of mala fides. A litigant does not stand to benefit by restoring to delay. In fact, he runs a serious risk.

(vi) It must be grasped that the judiciary is respected not on account of its power to legalise injustice on technical grounds, but because it is capable of removing injustice and is expected to do so"

12. Similar view were also taken by various Hon’ble Courts in the case of Vijay Vishin Meghani vs DClT 86 taxmann.com 98 (Bom.) & Improvement trust, Ludhiana Civil Appeal No. 2395 of 2008 (SC).

13. Further Hon’ble Supreme Court in the case of Improvement Trust, Ludhiana Vs Ujagar Singh & Ors in Civil Appeals No.2395 of 2008 held as under:-

“2 After all, justice can be done only when the matter is fought on merits and in accordance with law rather than to dispose it of on such technicalities and that too at the threshold. Both sides had tried to argue the matter on merits but we refrain ourselves from touching the merits of the matter as that can best be done by the Executing Court which had denied an opportunity to the appellant to lead evidence and to prove the issues so formulated.

3. In our opinion, ends of justice would be met by setting aside the impugned orders and matter is remitted to the Executing Court to consider and dispose of appellant's objections filed under Order 21 Rule 90 of CPC on merits and in accordance with law, at an early date. It is pertinent to point out that unless malafides are writ large on the conduct of the party, generally as a normal 1 rule, delay should be condoned. In the legal arena, an attempt should always be made to allow the matter to be contested on merits rather than to throw it on such technalities.

2. Apart from the above, appellant would not have gained in any manner whatsoever, by not filing the appeal within the period of limitation. It is also worth noticing that delay was also not that huge, which could not have been condoned, without putting the respondents to harm or prejudice. It is the duty of the Court to see, to it that justice should be done between the parties, 3 For the aforesaid reasons the impugned orders passed by Appellate Court, and order passed by the High Court, are hereby set aside and quashed.' As a consequence, the matter stands remitted to the Executing Court for deciding the appellant's application filed under Order 21 Rule 90 of CPC at an early date on merits. Since there are only two contesting parties to the litigation that is to say the appellant and respondent No.5, both would appear before the Executing Court on 20/7/2010. Being an old case an endeavour would be made by the Executing Court to take up the case as far as possible, on day-to-day basis and no party would seek an undue adjournment in the matter. We make it clear that we have expressed no opinion, on the merits of the matter and any observation made herein would not be construed as an expression of opinion on merits. 4 We are conscious of the fact that respondent No.5 has been put to inconvenience and harassment as admittedly it had deposited a huge amount of Rs.22,6S,000/- in the year 1992 but has not been able to get any fruits thereof till date. Therefore the appellant's appeal is allowed subject 1 to payment of Rs.5O,OOO/- (Rupees fifty thousand) to respondent No.5 within three weeks hereof. Payment of cost is condition precedent, without which the appellant would not be allowed to prosecute its objections. The appeal therefore stands allowed to the aforesaid extent. The appellant to bear the cost through out. In the light of this order, other civil appeal No. 2397/2008 stands allowed to the aforesaid extent only.

14. In the light of the above judgments and after examining the facts of the case we are of the view that in the interest of justice the delay in filing of appeal before Ld. CIT(A) needs to be condoned. We accordingly order so and allow common Ground No.2 & 3 of the instant appeals. All the remaining grounds raised on merits are restored to the file of Ld. CIT(A) for adjudicating the issues on merits and decide accordingly by way of passing a speaking order.

15. In the result appeals of the assessee for Assessment Year 2014-15 are partly allowed for statistical purposes.

The order pronounced in the open Court on 20.02.2020.

Sd/- Sd/-

( KUL BHARAT) (MANISH BORAD)

JUDICIAL MEMBER ACCOUNTANT MEMBER