Sai Rajesh, Palakkad V. Income Tax Officer, Palakkad

ITA 100/COCH/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 4300 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 5 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2010
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2002-2003
• Appeal Filed On: 24-02-2009
• Court: TRIBUNAL
• Department Lawyers: T J VINCENT
• Keywords: Reasonable cause; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLAT E TRIBUNAL COCHIN BENC H, COCHIN BEFORE S/SHRI T.R.SOOD, AM AND N.VIJAYAKUM ARAN, JM I.T.A. NOS. 99-102/COCH/2009 ASSESSMENT YEARS : 2001-02 TO 2003-04 & 2005-06 SAI RAJESH, PROP. KING LIQUOR BAR, RAJAPRASTHAM, MELEPATTAMBI, PALAKKAD. [PAN: ACSPR 8487Q] VS. INCOME TAX OFFICER, WARD-2, PALAKKAD. (ASSESSEE -APPELLANT) (REVENUE- RESPONDENT) ASSESSEE BY NONE REVENUE BY SHRI T.J.VINCENT, DR O R D E R PER T.R.SOOD, AM: IN ALL THESE APPEALS, VARIOUS GROUNDS HAVE BEEN RA ISED BY THE ASSESSEE. 2. NONE APPEARED INSPITE OF NOTICE. HOWEVER, DURING THE HEARING, WE NOTICED THAT THE LD. CIT(A) HAD DISMISSED THE ASSESSEES APPEALS, BECAUS E THE SAME WERE LATE BY NINE DAYS. THIS IS A VERY SMALL DELAY AND THE LD. CIT(A) SHOUL D HAVE TAKEN A LIBERAL VIEW, PARTICULARLY WHEN THE REASONS FOR SUCH DELAY BEING PERSONAL PROB LEMS OF THE ACCOUNTANT AND THE ASSESSEE BEING OUT OF STATION FOR A MONTH, WERE ALSO FURNISH ED. THEREFORE, WE DECIDED TO HEAR THESE APPEALS ON EX PARTE BASIS. 3. THE LD. DR WAS HEARD. 4. AFTER CONSIDERING THE SUBMISSIONS OF THE LD. DR AND THE RELEVANT MATERIAL ON RECORD, WE FIND THAT ALL THESE APPEALS WERE FILED LATE BY N INE DAYS BEFORE THE LD. CIT(A), RAISING VARIOUS ISSUES. THE LD. CIT(A) LISTED THE APPEALS F OR HEARING AND AS PER THE DATE OF HEARINGS ITA.NOS. 99,100,101 & 102/COCH./2009 2 GIVEN IN THE ORDER, THE APPEALS WERE LISTED ON 7.8. 2008, 14.10.2008 AND 26.11.2008. ONLY ON 14.10.2008, SHRI C.R. HARISH, LD. AR APPEARED AND S OUGHT ADJOURNMENT. NONE APPEARED BEFORE THE LD. CIT(A) ON 26.11.2008 AND THEREFORE, THE LD. CIT(A) DISMISSED THE APPEALS VIDE PARAS 2.1 AND 2.2 OF HIS ORDER WHICH ARE AS UNDER:- 2.1 THE APPEALS FOR ALL THE FOUR YEARS ARE DELAYED AND IN THE PETITION FOR CONDONATION OF DELAY ENCLOSED WITH THE APPEALS, R EASON CITE IS THAT DUE TO PERSONAL PROBLEMS THE ACCOUNTANT OF THE APPELLANT WAS OUT OF STATION FOR A MONTH AND APPEAL PAPERS COULD BE PREPARED ONLY ON RETURN. 2.2 AFTER CONSIDERING ALL FACTS ON RECO RD INCLUDING LACK OF EVIDENCE AND NON COOPERATION FROM THE APPELLANT, I AM CONSTRAINED T O DISMISS THE APPEALS FOR ALL THE YEARS WITHOUT CONDONING THE DELAY IN FILING THE A PPEALS ON THE GROUND THAT THERE IS NO VALID REASON FOR DELAY. 5. THE ABOVE PARAS SHOW THAT THE APPEALS HAVE BEEN DISMISSED IN A VERY MECHANICAL FASHION, PARTICULARLY WHEN THE ASSESSEE HAS GIVEN THE REASONS FOR FILING THE APPEALS LATE. ONE OF THE REASONS IS THAT THE ASSESSEE WAS OUT OF STA TION FOR A MONTH AND PAPERS FOR APPEALS COULD BE PREPARED ONLY ON THE RETURN OF THE ASSESSE E. THE HONBLE SUPREME COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. M.S.T. KATI JI & OTHERS, 167 ITR 471 HAS CONSIDERED THE ISSUE REGARDING CONDONATION OF APPEALS IN DETAI L AND HAS RATHER ISSUED CERTAIN DIRECTIONS FOR THE LOWER COURTS AND TRIBUNALS WHICH ARE AS UND ER:- THE LEGISLATURE HAS CONFERRED POWER TO CONDONE DE LAY BY ENACTING SECTION 5 OF THE LIMITATION ACT, 1963, IN ORDER TO ENABLE THE C OURTS TO DO SUBSTANTIAL JUSTICE TO PARTIES BY DISPOSING OF MATTERS ON MERITS. THE EXPRESSION SUFFICIENT CAUSE EMPLOYED BY THE LEGISLATURE IS ADEQUATELY ELASTI C TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SUBSERVES THE EN DS OF JUSTICE THAT BEING THE LIFE- PURPOSE OF THE EXISTENCE OF THE INSTITUTION OF COU RTS. IT IS COMMON KNOWLEDGE THAT THIS COURT HAS BEEN MAKING A JUSTIFIABLY LIBERAL APPROA CH IN MATTERS INSTITUTED IN THIS COURT. BUT THE MESSAGE DOES NOT APPEAR TO HAVE PER COLATED DOWN TO ALL THE OTHER COURTS IN THE HIERARCHY. ITA.NOS. 99,100,101 & 102/COCH./2009 3 EVERY DAYS DELAY MUST BE EXPLAINED DOES NOT ME AN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOURS DE LAY, EVERY SECONDS DELAY? THE DOCTRINE MUST BE APPLIED IN A RATIONAL AND CO MMON SENSE AND PRAGMATIC MANNER. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERAT ION 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 INJUSTI CE BEING DONE BECAUSE OF A NON-DELIBERATE DELAY. THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONED DELIBERATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE, OR ON ACCOUNT OF MALA FID ES. A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY. INFACT, HE RUN S A SERIOUS RISK. IT MUST BE GRASPED THAT THE JUDICIARY IS RESPECTE D NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GROUNDS BUT BE CAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. THE ABOVE WOULD SHOW THAT A VERY LIBERAL APPROACH H AS TO BE TAKEN WHILE CONSIDERING THE CONDONATION OF DELAY. 6. IN THE CASES BEFORE US, THE DELAY IS ONLY FOR NI NE DAYS AND THERE SEEMS TO BE A SUFFICIENT AND REASONABLE CAUSE FOR FILING THE APPE ALS LATE. THEREFORE, THE LD. CIT(A) SHOULD HAVE CONDONED THE DELAY AND EVEN IF HE HAD WANTED T O DECIDE THE APPEALS EX PARTE, THE SAME SHOULD HAVE BEEN DONE BY ADJUDICATING THE ASSESSEE S APPEALS ON MERITS. THEREFORE, IN THE INTEREST OF JUSTICE, WE CONDONE THE DELAY OF NINE D AYS FOR FILING THE APPEALS BEFORE THE CIT(A) AND REMAND THE MATTER BACK TO THE FILE OF TH E LD. CIT(A) WITH A DIRECTION TO RE- ADJUDICATE THE APPEALS ON MERITS. HOWEVER, THE ASS ESSEE IS .ALSO DIRECTED TO COOPERATE IN THE PROCEEDINGS BEFORE THE LD. CIT(A). ITA.NOS. 99,100,101 & 102/COCH./2009 4 7. IN THE RESULT, THE ASSESSEES APPEALS ARE ALLOWE D FOR STATISTICAL PURPOSES. SD/- SD/- (N.VIJAYAKUMARAN) (T.R.SOOD) JUDICIAL MEMBER ACCOU NTANT MEMBER PLACE: ERNAKULAM DATED : 30TH JULY 2010 GJ COPY TO: 1. SAI RAJESH, PROP. KING LIQUOR BAR, RAJAPRASTHAM, MELEPATTAMBI, PALAKKAD. 2. THE INCOME TAX OFFICER, WARD-2, PALAKKAD. 3 .THE COMMISSIONER OF INCOME-TAX (A)-V, KOCHI. 4. THE COMMISSIONER OF INCOME-TAX, TRICHUR. 5. D.R./I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR)