COSMOS GARDEN RESORTS PVT. LTD., Jaipur V. DCIT, Jaipur

ITA 1067/JPR/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 5568 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 05-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D S KOTHARI CIT DHK
• Keywords: Reasonable cause; Condonation of delay
• Section: 143(3); 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS [KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA-@ ITA NO. 1067/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2012-13. M/S. COSMOS GARDEN RESORTS PVT. LTD., S-1, KAMAL APARTMENTS, BANI PARK, JAIPUR. CUKE VS. THE DCIT, CIRCLE - 7, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AADCC 7768 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 1068/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10. M/S. MANU YANTRALAYA PVT. LTD., F-701, SITAPURA INDUSTRIAL AREA, JAIPUR. CUKE VS. THE DCIT, CIRCLE - 7, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AACCM 0082 F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL (C.A) JKTLO DH VKSJ LS@ REVENUE BY : SHRI D.S. KOTHARI (CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 21.02.2017. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 28/02/2017. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THESE ARE TWO APPEALS BY TWO DIFFERENT ASSESSEES D IRECTED AGAINST TWO DIFFERENT ORDERS OF LD. CIT (A)-III, JAIPUR BOTH DA TED 29.09.2016 PERTAINING TO ASSESSMENT YEARS 2012-13 AND 2009-10 RESPECTIVELY S EEKING CONDONATION OF DELAY IN FILING OF THE APPEAL AND RESTORATION OF THE APPEAL TO THE FILE OF LD. CIT (A) OR DECISION ON MERITS. 2 ITA NOS. 1067 & 1068/JP/2016 M/S. COSMOS GARDEN RESORTS P. LTD. & M/S. MANU YANTRALAYA PVT. LTD. 2. BRIEFLY STATED THE FACTS ARE THAT THE CASES OF T HE ASSESSEES WERE PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENTS UNDER SECTI ON 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VIDE ORDER DATED 27.03.2015 AND 26.03.2015 RESPECTIVELY. WHILE FRAM ING THE ASSESSMENT, THE AO MADE ADDITIONS ON ACCOUNT OF SHARE APPLICATION MONE Y AND DISALLOWANCE ON ACCOUNT OF TELEPHONE, CONVEYANCE, TRAVELLING ETC. AGGRIEVE D BY THE ORDERS, THE ASSESSEES PREFERRED APPEALS BEFORE LD. CIT (A), WHO AFTER CON SIDERING THE SUBMISSIONS, DISMISSED THE APPEALS ON THE GROUND OF DELAY. 3. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS MADE IN THE WRITTEN BRIEF. THE SUBMISSIONS AS MADE IN THE WRIT TEN BRIEF ARE REPRODUCED AS UNDER :- 1. THE ASSESSEECOMPANY WAS INCORPORATED ON 13 TH AUGUST, 2009 WITH THE OBJECT OF UNDERTAKING A HOSPITALITY PROJECT. ACCORD INGLY, IT PURCHASED A LAND AT JAISINGHPURA ROAD, BHANKROTA, JAIPURON 31.08.2009 A T A COST OF RS. 207.16 LAKHS. AS THE PROJECT COULD NOT BE COMMENCED, ASSES SEE CONDUCTED AGRICULTURAL ACTIVITY ON THE SAID LAND AND EARNED I NCOME THERE FROM. IT FILED THE RETURN DECLARING NIL (LOSS OF RS. 5,660/-) INCOME O N 30.03.2013. DURING THE YEAR ASSESSEE RAISED SHARE APPLICATION M ONEY OF RS.500 LAKHSFROM VARIOUS COMPANIES. THE SHARES WERE ALLOTTED DURING THE YEAR ITSELF. IN COURSE OF ASSESSMENT PROCEEDINGS, ASSESSEE FILED THE COPY OF SHARE APPLICATION FORM, CONFIRMATION, BANK STATEMENT AND INCOME TAX RETURN OF THESE COMPANIES TO VERIFY ITS GENUINENESS (PB 2-3) . IN BETWEEN A SURVEY CONDUCTED ON 29.01.2015 AT THE BUSINESS PREMISES OF ITS GROUP COMPANIES, I.E., M/S MANU YATRALAYA PVT. LTD. AND M/S TMKI MACHINE PARTS PVT. LTD.NO INCRIMINATING DOCUMENT IN RESPECT OF THE SHARE CAPITAL WAS FOUND IN THE SURVEY BUT STILL TO PURCHASE PEACE OF MIND, ASSESSEE OFFERED RS. 500 LAKHS FOR TAX WITH A REQUEST THAT NO PENALTY WI LL BE IMPOSED AND NO NOTICE FORIMPOSITION OF PENALTY SHALL BE ISSUED. THIS REQU EST WAS ALSO RECORDED IN THE STATEMENT OF MR. M.K.BANTHIA, DIRECTOR, DURING THE SURVEY PROCEEDINGS (PB 7- 20 OF M/S MANU YANTRALAYA PVT. LTD .) . ACCORDINGLY, A REVISED COMPUTATION OF INCOME WAS FI LED IN WHICH THE SHARE APPLICATION MONEY WAS ADDED TO THE INCOME AND SELF ASSESSMENT TAX WAS DEPOSITED BEFORE THE COMPLETION OF ASSESSMENT PROCE EDINGS.IN THE LETTER FILED 3 ITA NOS. 1067 & 1068/JP/2016 M/S. COSMOS GARDEN RESORTS P. LTD. & M/S. MANU YANTRALAYA PVT. LTD. IN COURSE OF THE ASSESSMENT PROCEEDINGS (PB 2-3) , IT IS REITERATED THAT THE INCOME IS OFFERED AS ADMITTED IN SURVEY TO PURCHASE PEACE OF MIND WITH A REQUEST THAT NO PENALTY BE IMPOSED AND NO NOTICE RE GARDING THE PENALTY BE ISSUED. THE AO COMPLETED THE ASSESSMENT AS PER THE REVISED COMPUTATION BUT INITIATED THE PENALTY PROCEEDINGSBY GIVING VERBAL A SSURANCE TO DROP THESE PENALTY PROCEEDINGS IN FIRST HEARING ITSELF. THE ASSESSEE THEREAFTER FILED THE REPLY TO PENALTY NOTICE IN DAK COUNTER ON 20.04.2015 (PB 4-6) WHERE THE ABOVE FACTS WERE REITERATED. THEREAFTER, AO AGAIN ISSUED NOTICE U/S 271(1)(C) DATED 09.09.2015 TO COMPLETE THE PENALTY PROCEEDINGS BUT IN COURSE OF HEARING SHOWED HIS INA BILITY TO DROP THE PENALTY PROCEEDINGS. THEREFORE, ASSESSEE FILED AN APPEAL TO THE CIT(A) ON 11.09.2015 AGAINST THE ORDER OF THE AO PASSED U/S 143(3) DATED 27.03.2015 ALONGWITH AN APPLICATION REQUESTING TO CONDONE THE DELAY IN FILI NG THE APPEAL (PB 1) . THE COPY OF THE APPLICATION IS REPRODUCED AT PAGE 3 OF THE LD. CIT(A) ORDER. THEREAFTER, THE AO IMPOSED THE PENALTY U/S 271(1)(C ) VIDE ORDER DATED 30.09.2015. BEFORE THE LD. CIT(A) IT WAS CONTENDED THAT THE INC OME WAS OFFERED WITH THE CONDITION THAT NO PENALTY WOULD BE LEVIED AND WHILE COMPLETING THE ASSESSMENT VERBAL ASSURANCE WAS GIVEN BUT NOW THE A O IS IMPOSING THE PENALTY AND THEREFORE, THE APPEAL OF THE ASSESSEE B E DECIDED ON MERIT AS THE DEPARTMENT HAS NOT ABIDED BY ITS ASSURANCE. THE LD. CIT(A) HOWEVER HELD THAT ASSESSEE HAS NOT F ULFILLED HIS PROMISE OF SURRENDER MADE DURING THE SURVEY AND THE INCOME DEC LARED IN THE RETURN OF INCOME FILED U/S 139(1) HAS BEEN DECLARED AS TOTAL INCOME IN THE RETURN FILED IN RESPONSE TO THE NOTICE U/S 148. EVEN WHEN THE PENAL TY PROCEEDINGS WERE INITIATED, THE APPELLANT SHOULD HAVE FILED THE APPE AL IF HE WAS AGGRIEVED AS THERE IS NO ESTOPPEL AGAINST LAW, SHE THEREFORE HEL D THAT THERE IS NO REASONABLE CAUSE FOR LATE FILING OF THE APPEAL. SHE THEREFORE, REJECTED THE APPEAL ON GROUND OF DELAY WITHOUT DECIDING THE MERIT OF THE CASE. IT IS SUBMITTED THAT THE LD. CIT(A) HAS WRONGLY STA TED THAT THE ASSESSEE HAS NOT INCLUDED THE INCOME IN THE RETURN FILED IN RESPONSE TO NOTICE U/S 148. INFACT, NO NOTICE U/S 148 WAS ISSUED. IT IS THE REGULAR ASSESS MENT PROCEEDINGS WHICH WERE PENDING BEFORE THE AO WHEN THE SURVEY TOOK PLACE ON THE GROUP COMPANIES ON 29.01.2015. THEREFORE, AS PER THE ASSURANCE GIVEN, ASSESSEE FILED THE REVISED COMPUTATION BY INCLUDING THE SAID AMOUNT OF RS. 500 LAKHS AND PAID TAX THEREON SUBJECT TO THE CONDITION THAT THE PENALTY S HALL NOT BE LEVIED. HOWEVER, WHEN THE AO SHOWED HER INTENTION TO LEVY THE PENALT Y, THE APPEAL WAS FILED. THUS, THERE IS A REASONABLE CAUSE FOR DELAY IN FILI NG THE APPEAL. IN THESE CIRCUMSTANCES, THE LD. CIT(A) SHOULD HAVE CONDONED THE DELAY AND DECIDED THE APPEAL ON MERIT. 4 ITA NOS. 1067 & 1068/JP/2016 M/S. COSMOS GARDEN RESORTS P. LTD. & M/S. MANU YANTRALAYA PVT. LTD. RELIANCE IN THIS CONNECTION IS PLACED ON THE FOLLOW ING CASES:- COLLECTOR, LAND ACQUISITION VS. MST. KATIJI& OTHERS 167 ITR 471 (SC) THE LEGISLATURE HAS CONFERRED THE POWER TO CONDONE DELAY BY ENACTING SECTION 5 OF THE INDIAN LIMITATION ACT OF 1963 IN ORDER TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO PARTIES BY DISPOSING OF MATT ERS ON MERITS. THE EXPRESSION SUFFICIENT CAUSE EMPLOYED BY THE LEGIS LATURE IS ADEQUATELY ELASTIC TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGF UL MANNER WHICH SUBVERSES THE ENDS OF JUSTICE THAT BEING THE LIFE-PURPOSE FOR THE EXISTENCE OF THE INSTITUTION OF COURTS. IT IS COMMON KNOWLEDGE THAT THIS COURT HAS BEEN MAKING A JUSTIFIABLY LIBERAL APPROACH IN MATTERS INSTITUTE D IN THIS COURT. BUT THE MESSAGE DOES NOT APPEAR TO HAVE PERCOLATED DOWN TO ALL THE OTHER COURTS IN THE HIERARCHY. AND SUCH A LIBERAL APPROACH IS ADOPTED O N PRINCIPLE AS IT IS REALIZED THAT : (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 THRESHOLD AND CAUSE OF JUSTI CE BEING DEFEATED. AS AGAINST THIS WHEN DELAY IS CONDONED THE HIGHEST THA T CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERITS AFTER HEARING THE PARTIE S. (3) EVERY DAYS DELAY MUST BE EXPLAINED DOES NOT MEAN THAT A PEDANTIC AP PROACH SHOULD BE MADE. WHY NOT EVERY HOURS DELAY, EVERY SECONDS DELAY? T HE DOCTRINE MUST BE APPLIED IN A RATIONAL COMMON SENSE PRAGMATIC MANNER . (4) WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS ARE PITTED AGA INST EACH OTHER, CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED FOR TH E OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE O F A NON-DELIBERATE DELAY. (5) THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONED DE LIBERATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE, OR ON ACCOUNT OF MALA FIDES . A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY. IN FACT, HE RUNS A S ERIOUS RISK. (6) IT MUST BE GRASPED THAT JUDICIARY IS RESPECTED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GROUNDS BUT BECAUSE IT IS CA PABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. MAKING A JUSTICE-ORIENTED APPROACH FROM THIS PERSPE CTIVE THERE WAS SUFFICIENT CAUSE FOR CONDONING THE DELAY IN THE INSTITUTION OF THE APPEAL. THE FACT THAT IT WAS THE STATE WHICH WAS SEEKING CONDONATION AND N OT A PRIVATE PARTY WAS ALTOGETHER IRRELEVANT. THE DOCTRINE OF EQUALITY BEF ORE LAW DEMANDS THAT ALL LITIGANTS, INCLUDING THE STATE AS A LITIGANT, ARE A CCORDED THE SAME TREATMENT AND THE LAW IS ADMINISTERED IN AN EVEN-HANDED MANNER. T HERE IS NO WARRANT FOR ACCORDING A STEP MOTHERLY TREATMENT WHEN THE STATE IS THE APPLICANT PRAYING FOR CONDONATION OF DELAY. IN FACT, EXPERIENCE SHOWS THAT ON ACCOUNT OF AN IMPERSONAL MACHINERY (NO ONE IN CHARGE OF THE MATTE R IS DIRECTLY HIT OR HURT BY JUDGMENT SOUGHT TO BE SUBJECTED TO APPEAL) AND THE INHERITED BUREAUCRATIC METHODOLOGY IMBUED WITH THE NOTE-MAKING, FILE PUSHI NG AND PASSING-ON-THE- BUCK ETHOS, DELAY ON ITS PART IS LESS DIFFICULT TO UNDERSTAND THOUGH MORE DIFFICULT TO APPROVE. IN ANY EVENT, THE STATE WHICH REPRESENTS THE COLLECTIVE CAUSE OF THE COMMUNITY, DOES NOT DESERVE A LITIGANT NON GRATA STATUS. THE COURTS, THEREFORE, HAVE TO BE INFORMED WITH THE SPI RIT AND PHILOSOPHY OF THE PROVISION IN THE COURSE OF THE INTERPRETATION OF TH E EXPRESSION SUFFICIENT CAUSE. SO ALSO THE SAME APPROACH HAS TO BE EVIDENC ED IN ITS APPLICATION TO 5 ITA NOS. 1067 & 1068/JP/2016 M/S. COSMOS GARDEN RESORTS P. LTD. & M/S. MANU YANTRALAYA PVT. LTD. MATTERS AT HAND WITH THE END IN VIEW TO DO EVEN-HAN DED JUSTICE ON MERITS IN PREFERENCE TO THE APPROACH WHICH SCUTTLES A DECISIO N ON MERITS'. ESHABHATTACHARJEE V. MANAGING COMMITTEE OF RAGHUNAT HPUR, NAFAR ACADEMY AND OTHERS2013 (5) CTC 547 THE PRINCIPLES INVOLVED AND THE APPROACH NEEDED WHI LE CONSIDERING THE APPLICATION FOR CONDONATION OF DELAY ARE BROADLY CU LLED OUT AS UNDER: I) THERE SHOULD BE A LIBERAL, PRAGMATIC, JUSTICE-ORIEN TED, NON- PEDANTIC APPROACH WHILE DEALING WITH AN APPLICATION FOR CONDONATION O F DELAY, FOR THE COURTS ARE NOT SUPPOSED TO LEGALISE INJUSTICE BUT ARE OBLIGED TO R EMOVE INJUSTICE. II) THE TERMS 'SUFFICIENT CAUSE' SHOULD BE UNDERSTOOD I N THEIR PROPER SPIRIT, PHILOSOPHY AND PURPOSE REGARD BEING HAD TO THE FACT THAT THESE TERMS ARE BASICALLY ELASTIC AND ARE TO BE APPLIED IN PROPER PERSPECTIVE TO THE OBTAINING FACT SITUATION. III) SUBSTANTIAL JUSTICE BEING PARAMOUNT AND PIVOTAL THE TECHNICAL CONSIDERATIONS SHOULD NOT BE GIVEN UNDUE AND UNCALLED FOR EMPHASIS . IV) NO PRESUMPTION CAN BE ATTACHED TO DELIBERATE CAUSAT ION OF DELAY BUT, GROSS NEGLIGENCE ON THE PART OF THE COUNSEL OR LITIGANT I S TO BE TAKEN NOTE OF. V) LACK OF BONA FIDES IMPUTABLE TO A PARTY SEEKING CON DONATION OF DELAY IS A SIGNIFICANT AND RELEVANT FACT. VI) IT IS TO BE KEPT IN MIND THAT ADHERENCE TO STRICT P ROOF SHOULD NOT AFFECT PUBLIC JUSTICE AND CAUSE PUBLIC MISCHIEF BECAUSE THE COURT S ARE REQUIRED TO BE VIGILANT SO THAT IN THE ULTIMATE EVENTUATE THERE IS NO REAL FAI LURE OF JUSTICE. VII) THE CONCEPT OF LIBERAL APPROACH HAS TO ENCAPSULE TH E CONCEPTION OF REASONABLENESS AND IT CANNOT BE ALLOWED A TOTALLY U NFETTERED FREE PLAY. VIII) THERE IS A DISTINCTION BETWEEN INORDINATE DELAY AND A DELAY OF SHORT DURATION OR FEW DAYS, FOR TO THE FORMER DOCTRINE OF PREJUDICE I S ATTRACTED WHEREAS TO THE LATTER IT MAY NOT BE ATTRACTED. THAT APART, THE FIRST ONE WARRANTS STRICT APPROACH WHEREAS THE SECOND CALLS FOR A LIBERAL DELINEATION. IX) THE CONDUCT, BEHAVIOUR AND ATTITUDE OF A PARTY RELA TING TO ITS INACTION OR NEGLIGENCE ARE RELEVANT FACTORS TO BE TAKEN INTO CO NSIDERATION. IT IS SO AS THE FUNDAMENTAL PRINCIPLE IS THAT THE COURTS ARE REQUIR ED TO WEIGH THE SCALE OF BALANCE OF JUSTICE IN RESPECT OF BOTH PARTIES AND THE SAID PRINCIPLE CANNOT BE GIVEN A TOTAL GO BY IN THE NAME OF LIBERAL APPROACH. X) IF THE EXPLANATION OFFERED IS CONCOCTED OR THE GROU NDS URGED IN THE APPLICATION ARE FANCIFUL, THE COURTS SHOULD BE VIGILANT NOT TO EXPO SE THE OTHER SIDE UNNECESSARILY TO FACE SUCH LITIGATION. XI) IT IS TO BE BORNE IN MIND THAT NO ONE GETS AWAY WIT H FRAUD, MISREPRESENTATION OR INTERPOLATION BY TAKING RECOURSE TO THE TECHNICALIT IES OF LAW OF LIMITATION. 6 ITA NOS. 1067 & 1068/JP/2016 M/S. COSMOS GARDEN RESORTS P. LTD. & M/S. MANU YANTRALAYA PVT. LTD. XII) THE ENTIRE GAMUT OF FACTS ARE TO BE CAREFULLY SCRUT INIZED AND THE APPROACH SHOULD BE BASED ON THE PARADIGM OF JUDICIAL DISCRETION WHI CH IS FOUNDED ON OBJECTIVE REASONING AND NOT ON INDIVIDUAL PERCEPTION. XIII) THE STATE OR A PUBLIC BODY OR AN ENTITY REPRESENTIN G A COLLECTIVE CAUSE SHOULD BE GIVEN SOME ACCEPTABLE LATITUDE.' S. NAGARAJ VS. STATE OF KARNATAKA 4 SCC 595: JUSTICE IS A VIRTUE WHICH TRANSCENDS ALL BARRIERS. NEITHER THE RULES OF PROCE DURE NOR TECHNICALITIES OF LAW CAN STAND IN ITS WAY. THE ORDER OF THE COURT SHOULD NOT BE PREJUDICIAL TO ANYONE. RULE OF STARE DECISIONS IS ADHERED TO FOR CONSISTENCY BUT I T IS NOT AS INFLEXIBLE AS ADMINISTRATIVE LAW AS IN PUBLIC LAW. EVEN THE LAW B ENDS BEFORE JUSTICE. ENTIRE CONCEPT OF WRIT JURISDICTION EXERCISED BY THE HIGHE R COURTS IS FOUNDED ON EQUITY AND FAIRNESS. IF THE COURT FINDS THAT THE ORDER WAS PAS SED UNDER A MISTAKE AND IT WOULD NOT HAVE EXERCISED THE JURISDICTION BUT FOR THE ERR ONEOUS ASSUMPTION WHICH IN FACT DID NOT EXIST AND ITS PREPARATION SHALL RESULT IN M ISCARRIAGE OF JUSTICE, THEN IT CANNOT ON ANY PRINCIPLE BE PRECLUDED FROM RECTIFYING THE E RROR. MISTAKE IS ACCEPTED AS VALID REASON TO RECALL AN ORDER DIFFERENCE LIES IN THE NA TURE OF MISTAKE AND SCOPE OF RECTIFICATION. DIFFERENCE LIES IN THE NATURE OF MIS TAKEN AND SCOPE OF RECTIFICATION, DEPENDING ON IF IT IS OF FACT OR LAW. BUT THE ROOT FROM WHICH THE POWER FLOWS IS THE ANXIETY TO AVOID INJUSTICES. IT IS EITHER STATUTORY OR INHERENT. THE LATTER IS AVAILABLE WHERE MISTAKE IS OF THE COURT. IN ADMINISTRATIVE LA W, THE SCOPE IS STILL WIDER. TECHNICALITIES APART IF THE COURT IS SATISFIED OF T HE INJUSTICE THEN IT IS ITS CONSTITUTIONAL AND LEGAL OBLIGATION TO SET IT RIGHT BY RECALLING ITS ORDER. VEDABAIALIAS VAIJAYANATABAIBABURAOPATILVS.SHANTARAM BABURAOPATIL& ORS. (SC) (2002) 253 ITR 0798 IN EXERCISING DISCRETION UNDER S. 5 OF THE LIMITATI ON ACT THE COURTS SHOULD ADOPT A PRAGMATIC APPROACH. A DISTINCTION MUST BE MADE BETW EEN A CASE WHERE THE DELAY IS INORDINATE AND A CASE WHERE THE DELAY IS OF A FEW D AYS. WHEREAS IN THE FORMER CASE THE CONSIDERATION OF PREJUDICE TO THE OTHER SIDE WI LL BE A RELEVANT FACTOR SO THE CASE CALLS FOR A MORE CAUTIOUS APPROACH BUT IN THE LATTE R CASE NO SUCH CONSIDERATION MAY ARISE AND SUCH A CASE DESERVES A LIBERAL APPROACH. NO HARD AND FAST RULE CAN BE LAID DOWN IN THIS REGARD. THE COURT HAS TO EXERCISE THE DISCRETION ON THE FACTS OF EACH CASE KEEPING IN MIND THAT IN CONSTRUING THE EXPRESS ION 'SUFFICIENT CAUSE', THE PRINCIPLE OF ADVANCING SUBSTANTIAL JUSTICE IS OF PR IME IMPORTANCE. IN THIS CASE, THE APPROACH OF THE CIVIL JUDGE IS WHOLLY ERRONEOUS AND HIS ORDER IS UNSUSTAINABLE. IT IS EVIDENT THAT THE DISCRETION UNDER S. 5 OF THE LIMIT ATION ACT IS EXERCISED BY THE CIVIL JUDGE IN CONTRAVENTION OF THE LAW LAID DOWN BY THIS COURT, THAT THE EXPRESSION 'SUFFICIENT CAUSE' SHOULD RECEIVE LIBERAL CONSTRUCT ION. THE HIGH COURT IN EXERCISING ITS JURISDICTION UNDER S. 115 OF THE CPC, FAILED TO CORRECT THE JURISDICTIONAL ERROR OF THE APPELLATE COURT. FOR THE AFOREMENTIONED REASONS , THE DELAY OF SEVEN DAYS IN FILING THE APPEAL IS CONDONED AND THE APPEAL IS RES TORED TO THE FILE OF THE CIVIL JUDGE AND THE CIVIL JUDGE IS DIRECTED TO DECIDE THE APPEA L ON THE MERITS.STATE OF WEST BENGAL VS. ADMINISTRATOR, HOWRAH MUNICIPALITY (1972 ) 1 SCC 366 AND SMT. SANDHYA RANI SARKAR VS. SMT. SUDHA RANI DEBI (1978) 2 SCC 116 APPLIED. 7 ITA NOS. 1067 & 1068/JP/2016 M/S. COSMOS GARDEN RESORTS P. LTD. & M/S. MANU YANTRALAYA PVT. LTD. CIT VS. WEST BENGAL INFRASTRUCTURE DEVELOPMENT FINA NCE CORPORATION LTD(SC) (2011) 334 ITR 0269 WHEN HUGE STAKES ARE INVOLVED, THE HIGH COURT SHOUL D NOT DISPOSE OF THE APPEALS FILED BY THE DEPARTMENT MERELY ON THE GROUND OF DEL AY; HIGH COURT CAN CONSIDER IMPOSING COSTS ON THE DEPARTMENT FOR THE DELAY AND DECIDE THE APPEALS ON MERITS. IN VIEW OF ABOVE, THE DELAY IN FILING THE APPEAL BE DIRECTED TO BE CONDONED AND THE MATTER BE SET ASIDE TO THE AO/ LD. CIT(A) AS DEEMED FIT TO DECIDE THE APPEAL ON MERIT. 4. ON THE CONTRARY, THE LD. D/R OPPOSED THE SUBMISS IONS AND SUBMITTED THAT THERE IS NO REASONABLE CAUSE. HE STRONGLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE HEARD RIVAL CONTENTIONS, PERUSED THE MAT ERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELO W. THE LD. COUNSEL FOR THE ASSESSEE HAS PLACED RELIANCE ON THE JUDGMENT OF THE HONBLE SUPREME COURT RENDERED IN THE CASE OF VEDABAI ALIAS VAIJAYANATABA I BABURAO PATIL VS. SHANTARAM BABURAO PATIL & ORS. (2002) 253 ITR 798 (SC) AND AL SO THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF S. NAGARAJ VS. STATE O F KARNATAKA, 4 SCC 595 (KAR.). WE HAVE ALSO CONSIDERED THE JUDGMENT OF HONBLE SUP REME COURT RENDERED IN THE CASE OF N. BALAKRISHNAN VS. M. KRISHNAMURTHY DATED 03.09.1998 AND THE JUDGMENT OF HONBLE SUPREME COURT RENDERED IN THE CASE OF STATE OF WEST BENGAL VS. THE ADMINISTRATOR, HOWRAH MUNICIPALITY, AIR 1972 SC 749 WHEREIN THE HONBLE SUPREME COURT HAS HELD THAT - IN EVERY CASE OF DELAY THERE CAN BE SOME LAPSE ON THE PART OF THE LITIGANT CONCERNED. THAT ALONE IS NOT ENOUGH TO TUR N DOWN HIS PLEA AND TO SHUT THE DOOR AGAINST HIM. IF THE EXPLANATION DO ES NOT SMACK OF MALA IDES OR IT IS NOT PUT FORTH AS PART OF A DILAT ORY STRATEGY THE COURT MUST SHOW UTMOST CONSIDERATION TO THE SUITOR. 8 ITA NOS. 1067 & 1068/JP/2016 M/S. COSMOS GARDEN RESORTS P. LTD. & M/S. MANU YANTRALAYA PVT. LTD. RESPECTFULLY FOLLOWING THE JUDGMENTS OF THE HONBLE SUPREME COURT, WE CONDONE THE DELAY AND RESTORE THE APPEALS TO THE LD. CIT (A) FO R DECISION ON MERIT. 6. IN THE RESULT, APPEALS OF THE ASSESSES ARE ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 28/02/201 7. SD/- SD/- FOE FLAG ;KNO ( DQY HKKJR ) (VIKRAM SINGH YADAV) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 28/02/2017. D/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- M/S. COSMOS GARDEN RESORTS PVT. LTD . M/S. MANU YATRALAYA PVT. LTD., JAIPUR. 2. THE RESPONDENT-THE ACIT, CIRCLE-3, JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 1067 & 1068/JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 9 ITA NOS. 1067 & 1068/JP/2016 M/S. COSMOS GARDEN RESORTS P. LTD. & M/S. MANU YANTRALAYA PVT. LTD.