IN INCOME TAX APPELLATE TRIBUNAL DELHI BENCH Friday : NEW DELHI BEFORE SHRI PRAMOD KUMAR, VICE PRESIDENT AND SHRI K. NARASIMHA CHARY, JUDICIAL MEMBER I.T.A.No.5286 /Del/2019 SA Nos.815 /Del/2019 (In I.T.A.No.5286 /Del/2019) Assessment Year: 2015-16 Noboru Fuchimoto, vs DCIT, Circle -3(1), SP 102-104, Japanese Zone, Gurgaon. Neemrana, Alwar, Rajasthan PAN: ABXPF1007G I.T.A.No.5287/Del/2019 SA Nos. 816/Del/2019 (In I.T.A.No. 5287/Del/2019) Assessment Year: 2015-16 Futoshi Katsuta, vs ACIT, Circle -1(1), SP 102-104, Japanese Zone, Gurgaon. Neemrana, Alwar, Rajasthan PAN: CXHPK4000J (Appellant) (Respondent) Assessee by: Ms Ruchika Garg, CA, Mr. Rahul Rawat, Advocate Department by: Ms Naina S Kapil, Sr. DR Date of hearing: 02/08/2019 Date of order : 30/8/2019 ORDER PER K. NARASIMHA CHARY, J.M. Today when these two Stay Applications are called for hearing, it is submitted by both parties that order of first appellate authority is result of refusal to condone delay in filing first appeal, and in view 2 of this fact, in stead of stay petitions, these appeals themselves could be disposed of. 2. In view of this submission, we have gone through record and found that ld. CIT(A) from details of Form No.35 came to know that appellant had left India; that they are not aware of assessment going on against them in India; and that for filing appeal, employer took all efforts to identify appellant working in other company for approvals in form of Power of Attorney and authorization which process was time consuming and resulted in delay. 3. Learned CIT(A), however, observed that there was no sufficient cause for delay beyond control of petitioner and delay cannot be condoned. Ld. CIT(A), therefore, proceeded to dismiss both appeals on ground of delay. 4. On same lines as was submitted before ld. CIT(A), ld. AR submitted that it is fact assesses left India and thereafter returns were fraudulently revised from IP address on 18.7.2016 without knowledge of assessees or their employer disclosing income lower than original income claiming refund. 5. It is submitted that assessees had no knowledge of assessment proceedings going on in India and when employer came to know of assessment order, employer made every attempt to secure POA etc. from assessees in order to enable them to file appeal and since it is time consuming process which resulted in delay of filing these appeals. It is submitted that there are no malafidies on part of assessees for making delay in filing appeals. 3 6. It is further submitted on behalf of assessees that on finding information from Form No.35, ld. CIT(A) proceeded to decide issue by concentrating on question as to why delay shall not be condoned without seeking any information from assessees and such approach is incorrect since ld. CIT(A) was duty bound to verify whether there was sufficient cause on part of assessees in delay occurred. 7. Ld. DR submitted that there are no plausible grounds for assessee in delay and delay cannot be condoned. She further submitted that no case was made out on financial hardship etc. 8. We have gone through record. There is nothing abnormal in submissions made on behalf of assessees that since assessees left employment in India and also left India, there was no information left with employer and, therefore, employer making attempts to identify whereabouts of assessees and to take all legal formalities forward for filing appeals took some time. It is not case of revenue that assessees were making any false statement on this score or that they stood to gain by allowing appeal to be barred by limitation. 9. When it is admitted fact that assessees do not stand to gain by filing appeal with delay, there are no reasons to believe bonafides of assessees as to reason for delay. It is settled principle of law that in absence of any rights being crystallized by afflux of time, highest that would happen by condoning delay that case would be decided on merits. When technicalities are pitted against delivery of substantial justice, former must give way to latter. 4 10. We, therefore, while accepting reasons for delay in condonation of delay, remand matter to file of ld. CIT(A) for disposing appeals on merits. 11. In result, whereas both appeals are allowed for statistical purposes, stay applications became infructuous and are dismissed as such. Order pronounced in open court on 30th August, 2019. Sd/- sd/- (PRAMOD KUMAR) (K. NARASIMHA CHARY) VICE PRESIDENT JUDICIAL MEMBER Dated: 30th August, 2019. VJ Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI Draft dictated 31.07.2019 Draft placed before author 2.08.2019 Approved Draft comes to Sr.PS/PS Order signed and pronounced on File sent to Bench Clerk Date on which file goes to AR Date on which file goes to Head Clerk. Date of dispatch of Order. Date of uploading on website 5 Noboru Fuchimoto v. DCIT, Circle-3(1), Gurgaon