IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03.08.2010 Coram :- THE HON'BLE MR.JUSTICE F.M.IBRAHIM KALIFULLA and THE HON'BLE MR.JUSTICE M.M.SUNDRESH Tax Case (Appeal) Nos.619 to 624 of 2010 Commissioner of Income Tax, ..Appellant in all Chennai. the appeals. vs. N.R.Mahesh, Prop. M/s.N.S.R.Exports, ..Respondent in all 41, T.T.K.Road, Chennai-18. the appeals. Tax Case Appeals filed under Section 260A of the Income Tax Act, 1961, against the common order of the Income Tax Appellate Tribunal, Madras 'A' Bench, dated 01.05.2009 passed in I.T.A.Nos.1546, 1547, 1548, 1549, 1550 and 1551/Mds/2008. Appeal against the Order of the Commissioenr of Income Tax (Appeals)-XII, Nungambakkam, Chennai-600 034 made in ITA.Nos.310 to 315/05-06 dated 24.03.2008 and against the Assessment Order of the Assistant Commissioner of Income Tax Circle XV, Chennai-34 in GIR.No./P.A.No.AAPP.No.764B dated 31.03.2005 for the Assessment Years 2000-2001 and 2001-2002. For Appellant : Mr.Patty B. Jeganathan Standing Counsel for Income-tax Common Judgment (Judgment of the Court was delivered by M.M.SUNDRESH,J.) In view of the common issues involved in all the appeals and the parties being the same, these appeals have been taken up together for disposal. 2. The assessee filed appeals before the Commissioner of Income- tax (Appeals) challenging the order of assessment for the assessment years 2000-2001 and 2001-2002. The said appeals have been filed with the condonation of delay applications seeking to condone the delay of https://hcservices.ecourts.gov.in/hcservices/ 265, 82, 82, 265, 82 and 82 days respectively. The assessee filed applications before the Commissioner of Income-tax (Appeals) stating that the appeals could not be filed against the orders passed by the Assessing Officer within the prescribed time in view of the fact that the assessment orders have been misplaced and the assessee was made to change the authorised representative viz., Chartered Accountant. It is further stated that, in view of the above said facts, the records will have to be received from the erstwhile authorised representative to the present one, there was delay in filing the appeals. The assessee further contended that inasmuch as substantial issues have been raised in the appeals, the same will have to be heard. However, the Commissioner of Income-tax (Appeals) has dismissed the appeals by holding that the reasons assigned for the delay cannot be accepted. 3. Challenging the same, the assessee filed appeals before the Tribunal and the Tribunal in turn has allowed the appeals. The Revenue has filed the present appeals challenging the orders passed by the Tribunal by raising the following substantial questions of law: "1. Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in law by condoning the delay in filing the appeals? 2. Whether there was sufficient cause for condoning the delay in filing especially in the absence of any documentary proof provided by the assessee?" 4. Mr.Patty B.Jeganathan, learned standing counsel for the appellant submitted that the assessee was not diligent enough in filing the appeals within the time. Learned counsel further submitted that the assessee was adopting delaying tactics and therefore, the Tribunal has committed an error in exercising the jurisdiction in favour of the assessee. Learned counsel also submitted that even before the Tribunal, after filing the appeals, the assessee was not represented. Hence the learned counsel submitted that the appeals will have to be allowed by setting aside the orders passed by the Tribunal. 5. A perusal of the orders passed by the Tribunal would indicate that the Chartered Accountant, who represented the case of the assessee, has filed an affidavit stating the reasons for the delay. It is the case of the assessee that the appeals could not be filed in time because of the fact that the original orders passed by the Assessing Officer were misplaced and the records from the erstwhile Chartered Accountant could not be received in time. The Chartered Accountant also filed an affidavit explaining the reason for the delay. It is not the case of the Revenue that the said affidavit https://hcservices.ecourts.gov.in/hcservices/ filed by the Chartered Accountant is false. There is no serious dispute regarding the affidavit filed by the Chartered Accountant. 6. It is not in dispute that there is some delay in filing the appeals by the assessee. However, the mere delay itself cannot be a ground to hold that the same shall not be condoned. In every application filed for condonation of delay, there will be failure on the part of the assessee concerned in approaching the appropriate forum within the time. The Tribunal has found that the delay has been properly explained by the assessee and after convincing with the said reason assigned by the assessee, the Tribunal has exercised its discretion in favour of the assessee. When such a discretion is exercised based upon the materials available on record, we do not find any reason to interfere with the same, especially when the assessee has given proper reasons for the condonation of delay, which has been found favourable by the Tribunal and the assessee has raised sufficient issues on merits by filing appeals before Commissioner of Income-tax (Appeals). Hence, we do not find any substantial question of law involved in these appeals. Accordingly, the appeals stand dismissed. 7. Considering the fact that the assessment years, which are subject matter of the appeals are 2000-2001 and 2001-2002 respectively, we are of the opinion that it is a fit case where the Commissioner of Income-tax (Appeals) will have to decide the issues in the appeals in a time bound manner. Accordingly, the Commissioner of Income-tax (Appeals) is directed to number the appeals and dispose of the same within a period of three months from the date of receipt of a copy of this order. Consequently, M.P.Nos.1 of 2010 (5 petitions) are also dismissed. sd/- Asst.Registrar /True copy/ Sub.Asst.Registrar ATR To 1. The Assistant Registrar, Income Tax Appellate Tribunal, Madras 'A' Bench, Madras. 2. The Commissioner of Income Tax (Appeals)-XII No.121, Mahatma Gandhi Road, Chennai 600 034. https://hcservices.ecourts.gov.in/hcservices/ 3. The Assistant Commissioner of Income Tax, Circle-XV, Chennai. 4. The Commissioner of Income Tax, Chennai. + 1 c.c. to Mr. Putty B. Jeganathan, Standing Counsel for Income Tax. S.R.No.56817. TC (A) Nos.619 to 624 of 2010 TRM (CO) GSK 23.08.2010. https://hcservices.ecourts.gov.in/hcservices/