1 28 itxa 3469.10 .doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION K INCOME TAX APPEAL NO.3469 OF 2010 WITH INCOME TAX APPEAL NO.3471 OF 2010 WITH INCOME TAX APPEAL NO.3543 OF 2010 Shri Shreeram P. Joshi Legal heir of Late Shri Prabhakar P. Joshi .. Appellant. vs. The Asstt. Commissioner of Income Tax Circle 2 (4) & Anr. .. Respondent. Mr. Arun Sathe, senior counsel with Ms. Aarti Sathe and Mr. Kalpesh Turalkar for the Appellant. Mr. Vimal Gupta for the Respondent. CORAM : J.P. DEVADHAR, K.K. TATED, JJ. DATE : 17TH AUGUST, 2011. P.C. 1 Heard. Admit the following common question of law: Whether the ITAT was justified in declining to condone the delay and 2 28 itxa 3469.10 .doc dismissing the Appeals filed by the Appellant/Assessee against the order of the CIT (A)? 2 By consent of parties, the Appeals are taken up for final hearing. 3 The dispute in the present case relates to the dis-allowance of interest paid by the Assessee to M/s Ajmera Housing Corporation during the Assessment Years 1989-90, 1991-92 and 1992-93. 4 Mr. Prabhakar P. Joshi, father of the Appellant herein had claimed deduction of interest paid to M/s Ajmera Housing Corporation in the Assessment Years in question. The Assessing Officer disallowed the interest claim of the Assessee. Appeals filed by Mr. Prabhakar P. Joshi were dismissed by the CIT (A) by a common order dated 28th March, 2000. To recover the demands raised for the Assessment Years in question, the assets of Mr. Prbhakar P. Joshi were attached. 5 Mr. Prabhakar P. Joshi met with an accident on 26th October, 2002 and ultimately died on 16th June, 2007. During the period from 26th October, 2002 till his death on 16th June, 2007, Mr. Prabhakar P Joshi was immobile and was suffering from paralysis. 3 28 itxa 3469.10 .doc 6 It appears that against similar orders passed by the CIT (A) for Assessment Years 1995-96 to 1999-2000 the Appellant as a constituted attorney of Mr.Prabhakar P. Joshi had filed Appeals before the ITAT which were allowed by the ITAT on 4th October, 2007 and it was held that the Assessee is entitled to claim deduction of the interest paid to M/s Ajmera Housing Corporation. In the light of the above order, the Appellant sought release of the assets which were attached for recovery of the demands for the Assessment Years 1995-96 to 1999-2000. However, the Appellant was informed that the attachment cannot be lifted in view of the outstanding arrears for Assessment Years 1989-90, 1991-92 and 1992-93. Thereupon, the Appellant filed the Appeals before the ITAT for those Assessment Years on 24th April, 2009 against the order of the CIT (A) with an Application seeking condonation of delay of more than 8 years in filing the Appeals. As the ITAT has declined to condone the delay, the Appellant has filed the present Appeals. 7 No doubt the delay in all these Appeals is inordinate and ordinarily such a delay would not be condoned. However, in the facts and circumstances of the present case, in our opinion, the delay deserves to be condoned because, firstly, the original Assessee Mr. Prabhakar P. Joshi could 4 28 itxa 3469.10 .doc not file Appeals on account of the accident which made him immobile. Secondly, the Appellant (son of Prabhakar P. Joshi) had filed Appeals against the order passed by CIT (A) for Assessment Years 1995-96 to 1999-2000 as a constituted attorney of Mr. Prabhakar P. Joshi, even during the period when the said Prabhakar P. Joshi was immobile. Thus, it is evident that the Appellant has been agitating the issue by filing Appeals against the order of the CIT (A) even during the period when the original Assessee was down with paralysis. It is only when the Appellant after succeeding before the ITAT sought release of the attached property, the Appellant came to know that the original Assessee had failed to file Appeals against the order of CIT (A) for the Assessment Years in question. 8 In these circumstances, failure on the part of the original Assessee to file Appeals against the order of CIT (A) was due to bonafide reasons set out hereinabove and that the inadvertent lapse on the part of Appellant – legal heir of the original Assessee in not filing Appeals for the Assessment Years in question while filing Appeals for the subsequent Assessment Years deserves to be condoned. 9 Thus, in our opinion, it is a fit case for condoning the delay. 5 28 itxa 3469.10 .doc 10 In the result, the delay is condoned by answering the question raised in these Appeals in favour of the Assessee. The Appeals are allowed accordingly with no order as to costs. The ITAT is directed to hear the Appeals on merits and in accordance with law. (J.P. DEVADHAR, J.) (K.K. TATED, J.)