Shri Shyam Lal Mittal, Chandigarh V. ITO, Chandigarh

ITA 1044/CHANDI/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0699 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-01-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 03-01-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 17-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J S NAGAR
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B, CHANDIGARH BEFORE SHRI T.R. SOOD, A.M AND MS. SUSHMA CHOWLA, J M ITA NO. 1044/CHD/2012 ASSESSMENT YEAR : 2007-08 SHYAM LAL MITTAL V I.T.O. WARD 2(1) 25 MW, INDUSTRIAL AREA CHANDIGARH PHASE I CHANDIGARH AAIPM 1929 J (APPELLANT) (RESPONDENT) APPELLANT BY SHRI TEJ MOHAN SINGH RESPONDENT BY: SHRI J.S. NAGAR DATE OF HEARING 3.1.2013 DATE OF PRONOUNCEMENT 11.1.2013 O R D E R PER T.R.SOOD, A.M THIS APPEAL IS DIRECTED AGAINST THE ORDER PASSED BY THE LD. CIT(A), CHANDIGARH DATED 10.5.2012. 2. IN THIS APPEAL THE ASSESSEE HAS RAISED THE FOLLO WING GROUNDS: 1 THAT THE CA HAS ERRED IN CONFIRMING THE IMPOSITI ON OF PENALTY U/S 271(1)(C) OF THE ACT IN A SUMMARY MANNE R FOR ALLEGED DELAY OF 4 DAYS IN FILING OF THE APPEAL WIT HOUT AFFORDING AN OPPORTUNITY TO EXPLAIN THE DELAY WHICH IS ARBITRARY AND UNJUSTIFIED. 2 THAT THE ACTION OF THE LD. CIT(A) FLOUTING THE SE TTLED PRINCIPALS OF NATURAL JUSTICE IS AS SUCH ILLEGAL, A RBITRARY AND UNJUSTIFIED. 3 THAT WITHOUT PREJUDICE TO THE ABOVE, THE LD. CIT( A) HAS ERRED IN UPHOLDING THE IMPOSITION OF PENALTY OF RS. 96,710/- WITHOUT DISCUSSING THE MERITS OF THE CASE LEADING TO IMPOSITION OF PENALTY WHICH IS ARBITRARY AND UNJ USTIFIED. 4. THAT NO PENALTY U/S 271(1)(C) OF THE ACT IS CALL ED FOR IN AS MUCH AS THERE HAS NEITHER BEEN ANY CONCEALMEN T OF INCOME NOR FURNISHING OF INACCURATE PARTICULARS OF INCOME AS SUCH THE ORDER IS UNJUSTIFIED AND ARBITRARY. 2 3. AT THE OUT SET THE LD. COUNSEL OF THE ASSESSEE P OINTED OUT THAT THE LD. CIT(A) HAS DISMISSED THE APPEAL BY RE FUSING TO CONDONE THE DELAY WITHOUT ADJUDICATING THE ISSUES O N MERITS. HE FURTHER POINTED OUT THAT DURING THE HEARING, THE LD. CIT(A) NEVER ASKED ANY QUESTION ON THE DELAY. IN ANY CASE THE ASSESSEE HAS RECEIVED THE PENALTY ORDER ON 26.5.201 0 AND THE APPEAL WAS TO BE FILED BY 26.6.2010 WHICH HAPPENS T O BE A SATURDAY AND 27.6.2010 WAS SUNDAY. THE FEE REQUIRE D FOR FILING THE APPEAL WAS DEPOSITED ON 28.6.2010 BUT BY THE TIME CHALLAN WAS OBTAINED AND ATTEMPT WAS MADE TO FILE T HE APPEAL AROUND 4 OCLOCK, THE SAME WAS REFUSED WITH A REASO N THAT THE APPEALS ARE ACCEPTED ONLY UPTO 3.30 PM. THEREAFTER APPEAL WAS FILED ON 29.6.2010. THUS IT WOULD BE CLEAR THA T THE DELAY IS MAINLY ON TECHNICAL GROUNDS BECAUSE OF SATURDAY AND SUNDAY AND THERE WAS NO INTENTION TO FILE THE APPEAL LATE. HE MADE A PRAYER THAT THE DELAY MAY BE CONDONED AND THE MATTE R MAY BE RESTORED TO THE FILE OF THE LD. CIT(A) FOR CONSIDER ATION OF THE ISSUES ON MERITS. 4. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE SU PPORTED THE ORDER OF THE LD. CIT(A). 5 WE HAVE HEARD THE RIVAL SUBMISSIONS CAREFULLY. W E FIND THAT THE LD. CIT(A) REFUSED TO CONDONE THE DELAY AN D FOR THE SAME HE HAS RELIED ON AN OLD DECISION IN CASE OF TH E HON'BLE ORISSA HIGH COURT IN CASE OF BRIJBANDHU NANDA, 44 I TR 688. WE ARE OF THE OPINION THAT THIS IS ONLY A TECHNICAL APPROACH. THE LD. CIT(A) AT LEAST SHOULD HAVE CONFRONTED THE ASSESSEE BY ASKING HIM TO EXPLAIN THE REASONS FOR DELAY BUT THI S MINIMUM FORMALITY HAS NOT BEEN CONDUCTED. THE HON'BLE SUPR EME COURT IN A CELEBRATED JUDGMENT IN CASE OF COLLECTOR LAND ACQUISITION 3 V MST. KATIJI AND OTHERS, 167 ITR 471 HAS OBSERVED THAT LEGISLATURE CONFERRED THE POWER TO CONDONE THE DELA Y BY ENACTMENT OF SECTION 5 OF THE LIMITATION ACT, 1963 IN ORDER TO ENABLE THE COURT TO DO SUBSTANTIAL JUSTICE TO THE P ARTIES. IT WAS FURTHER OBSERVED THAT THE EXPRESSION SUFFICIENT CA USE EMPLOYED BY THE LEGISLATURE IS ADEQUATELY ELASTIC T O ENABLE THE COURT TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SERVES THE ENDS OF JUSTICE. THE COURT ALSO GAVE THE FOLLOWING GUIDELINES FOR CONDONING THE DELAY:- 1 ORDINARILY, A LITIGANT DOES NOT STAND TO BENEFIT BY LODGING AN APPEAL LATE. 2. REFUSING TO CONDONE DELAY CAN RESULT IN A MERITORIOUS MATTER BEING THROWN OUT AT THE VERY THR ESHOLD AND CAUSE OF JUSTICE BEING DEFEATED. AS AGAINST TH IS, WHEN DELAY IS CONDONED, HE HIGHEST THAT CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERITS AFTER HEARI NG THE PARTIES. 3. EVERY DAYS DELAY MUST BE EXPLAINED DOES NOT MEAN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOURS DELAY, EVERY SECONDS DELAY? THE DOCTR INE MUST BE APPLIED IN A RATIONAL, COMMON SENSE AND PRAGMATIC MANNER. 4 WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERAT ION ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTAN TIAL JUSTICE DESERVES TO BE PREFERRED, FOR THE OTHER SID E CANNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON-DELIBERATED DELAY. 5 THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONED DELIBERATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE, OR ON ACCOUNT OF MALA FIDES. A LITIGANT DOES NOT STAND T O BENEFIT BY RESORTING TO DELAY. IN FACT, HE RUNS A SERIOUS R ISK. 6 IT MUST BE GRASPED THAT THE JUDICIARY IS RESPECTE D NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TE CHNICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUS TICE AND IS EXPECTED TO DO SO. FROM ABOVE IT IS CLEAR THAT GENERALLY LIBERAL APPRO ACH SHOULD BE ADOPTED FOR CONDONATION OF DELAY. WHEN THE FACTS I N THE CASE ARE EXAMINED IN VIEW OF THE ABOVE GUIDELINES, IT IS CLEAR THAT 4 THERE IS DELAY OF THREE DAYS OUT OF WHICH TWO DAYS WERE SATURDAY AND SUNDAY. EVEN ON THE THIRD DAY THE ASS ESSEE ATTEMPTED TO FILE THE APPEAL PERHAPS THE ASSESSEE W AS LATE AND COULD NOT FILE THE SAME. IN THESE CIRCUMSTANCES, W E ARE OF THE OPINION THAT THE LD. CIT(A) SHOULD HAVE CONDONED TH E DELAY. ACCORDINGLY WE CONDONE THE DELAY FOR FILING THE APP EAL BEFORE THE LD. CIT(A) AND REMIT THE MATTER BACK TO HIS FIL E FOR CONSIDERATION OF ISSUES ON MERITS AFTER PROVIDING A DEQUATE OPPORTUNITY TO THE ASSESSEE. 6 IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 11.1.2013 (SUSHMA CHOWLA) (T.R. SOOD) JUDICIAL MEMBER ACCOUNTANT MEM BER DATED : 11.1.2013 SURESH COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT/THE C IT(A)/THE DR 5