HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO AND HONOURABLE SRI JUSTICE T.AMARNATH GOUD I.T.T.A. No.20 of 2020 JUDGMENT: (Per Hon ble Sri Justice M.S. Ramachandra Rao) This appeal is filed under Section 260A of Income Tax Act, 1961 (for short Act ) challenging order dt.25-10-2019 in I.T.A.No.98/Hyd/2016 passed by Income Tax Appellate Tribunal, Hyderabad Branch , Hyderabad (for short Tribunal ). 2. appellant is individual assessee under Act. 3. search and seizure was conducted in case of appellant on 16-09-2010, and notice under Section 143(2) of Act was issued to appellant for Assessment Year 2011-12, as date of search fell within said Assessment Year. 4. assessee filed its return of Income on 01-03-2010, declaring total income of Rs.67,86,340/-. 5. During course of scrutiny proceedings, assessee/assessee s authorized representative appeared from time to time and detailed reply was also filed on 05-01-2013. 6. Deputy Commissioner of Income Tax, Central Circle-3, Hyderabad, then Assessing Officer, vide his order dt.30-03-2013, completed assessment. income returned was income assessed. No separate additions were made. ::2:: MSR,J & TA,J itta_20_2020 7. Later, Principal Commissioner of Income Tax (Central), Hyderabad issued show cause notice proposing to revise assessment in terms of Section 163 of Act. 8. Revisional Authority, vide his show cause notice, proposed to make addition of Rs.1,04,66,134/-, being total value of gold and silver jewellery, found during course of search and seizure proceedings, as unexplained investment in hands of Assessee. Revisional Authority opined that assessee could not produce any documentary evidence during time of original assessment and that he was not filing returns under Wealth Tax Act, 1957. 9. In response to said notice, assessee filed detailed reply on 12-01-2015. In its reply, assessee submitted that returns under Wealth Tax Act, 1957 were filed in his individual capacity, and also in name of T.Jagan Mohan Rao (HUF), T.Annapurna, T.Nanda kishore & T.Saritha (i.e. his HUF & family members) for Assessment Year 2011-12. Further, personal affidavits of his family members were also enclosed to reply. Apart from that, detailed statements of purchases made by his family members, both within and outside India, were furnished. 10. It is contended by appellant that brushing aside submissions of assessee, Revisional Authority completed revision and passed order under Section 263 of Act on 10-03- 2015 setting aside well considered order of Assessing Officer. Revisional Authority directed Assessing Officer to redo ::3:: MSR,J & TA,J itta_20_2020 assessment after making detailed enquiries and investigation . He was of opinion that Assessing Officer ought to have made further enquiries , before accepting statements made by assessee at time of assessment. Revisional Authority did not consider separate returns under Wealth Tax Act, 1957 and affidavits and other material filed by family members of assessee. 11. Assessing Officer, vide his order dt.31-12-2015, completed assessment once again, under Section 143(3) r/w 263 of Act, in tune with order of Revisional Authority. 12. Questioning order of Revisional Authority dt.10-03-2015, appeal was filed before Tribunal by assessee/appellant on 29-01-2016. 13. assessee contends that he approached his counsel only after receipt of consequential order passed by Assessing Officer on 31-12-2015; that he was under bona fide but erroneous view that appeal to be filed challenging only consequential order and not to Revisional Order; and that only after he approached his counsel, it was realized that appeal ought to have been filed challenging Revision Authority s order dt.10-3-2015 also. 14. So ITTA was filed with delay of 154 days before Tribunal on 29-01-2016, along with petition to condone delay in filing same under sec.5 of Limitation Act, 1963. ::4:: MSR,J & TA,J itta_20_2020 15. Tribunal, by impugned order dt.25-10-2019 in I.T.A.No.98/Hyd/2016 dismissed appeal on ground that assessee failed to establish that it was prevented by sufficient cause for not filing appeal in time. 16. Challenging same, instant appeal is filed. 17. Learned counsel for appellant contended that Tribunal erred in not condoning delay of 154 days in filing appeal I.T.A.No.98/Hyd/2016 before Tribunal; that assessee was under bona fide impression that appeal is required to be filed challenging only consequential order dt.31-12-2015 and not against Revisional Order dt.10-03-2015; and only after assessee approached counsel, appellant was advised that it was necessary to challenge Revisional Authority order also, and thus delay of 154 days in filing appeal occurred. 18. Learned counsel for appellant also contended that Tribunal erred in holding that explanation offered by assessee for delay in filing appeal was not bona fide. 19. Sri B.Narasimha Sarma, learned Senior Special Counsel for Central Taxes appearing for respondents, however, supported order passed by Tribunal, and contended that Tribunal was justified in rejecting application for condonation of delay. 20. We have noted contentions of both sides. ::5:: MSR,J & TA,J itta_20_2020 21. reasoning assigned by assessee for not preferring appeal within period of limitation to Tribunal was that he was under mistaken impression that only consequential order passed by Assessing Officer on 31-12-2015 was required to be challenged and not order dt.10-03-2015 of Revisional Authority, and that only after he consulted Advocate, he realized mistake and then challenged order of Revisional Authority. 22. Tribunal took view that appellant ought to have explained why after receiving order from Revisional Authority he did not approach Advocate, and held that he cannot say that only after he received order of Assessing Officer on 31-12- 2015, he approached Advocate. 23. In our opinion, this view is not reasonable for reason that assessee is individual and may not be well versed in law. It is not as if appellant acted deliberately in not approaching Advocate after he received order of Revisional authority. 24. Revisional Authority had remitted matter back to Assessing Officer to redo exercise of assessment and appellant could very well be under impression that consequential order of Assessing Officer only required to be challenged and not order of Revisional Authority. 25. assessee is entitled to question order passed by Revisional Authority also on ground that powers of Revision ::6:: MSR,J & TA,J itta_20_2020 under Section 263 of Act ought not to have been invoked in facts and circumstances of case and contend before Tribunal that order of Assessing Officer cannot be said to be prejudicial to interest of revenue even if it is erroneous particularly where two views are possible. Tribunal ought to have atleast imposed some costs on appellant in event it was of opinion that said period of delay was not properly explained in view of possible prejudice caused to appellant if appeal were to be dismissed . 26. Supreme Court in N.Balakrishnan Vs. M. Krishnamurthy1 has held that primary function of Court is to adjudicate dispute between parties and to advance substantial justice; and that rules of limitation are not meant to destroy right of parties, but they are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. It held that there is no presumption that delay in approaching Court is always deliberate, and words "sufficient cause" under Section 5 of Limitation Act should receive liberal construction so as to advance substantial justice. It held that in every case of delay there can be some lapse on part of litigant concerned, but that alone is not enough to turn down his plea and to shut door against him; and if explanation does not smack of mala fides or it is not put forth as part of dilatory 1 (1998) 7 SCC 123 ::7:: MSR,J & TA,J itta_20_2020 strategy, Court must show utmost consideration to suitor. It also observed that if delay is deliberate, then Court should not accept explanation. It held that while condoning delay, Court should compensate opposite party with costs. 27. Applying principles laid down in above case to instant case, we are of opinion that, in facts and circumstances of case, explanation for delay offered by appellant cannot be said to smack of mala fides or that it was put forth as part of dilatory strategy, and therefore, Tribunal ought to have condoned delay of said period of 154 days in filing I.T.A. and taken up matter on merits. 28. Accordingly, appeal is allowed; order dt.25-10-2019 passed by Tribunal in I.T.A.No.98/Hyd/2016 for assessment year 2011-12 is set aside; application for condonation of delay in filing said appeal stands allowed; and said appeal is restored to file of Tribunal; and Tribunal shall hear and decide appeal on merits in accordance with law. No costs. 29. Consequently, miscellaneous petitions, pending if any, shall stand closed. M.S. RAMACHANDRA RAO, J T.AMARNATH GOUD, J Date: 13-08-2020 Vsv Thunuguntla Jagan Mohan Rao v. Deputy Commissioner of Income-tax