M/s Emsons Organics Ltd., Chandigarh V. DCIT, CC-1, Chandigarh

ITA 1088/CHANDI/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9482 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 1 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 30-07-2019
• Assessment Year: 2005-2006
• Appeal Filed On: 23-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDERJEET SINGH
• Keywords: Reasonable cause; Condonation of delay; Set aside

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH A CHANDIGARH !, ' # , $ % & ' ( , )* # BEFORE: SMT. DIVA SINGH, JM & SMT.ANNAPURNA GUPTA, AM ./ ITA NOS. 1088 TO 1092/CHD/2018 / A.Y : 2005-06, 2009-10 TO 2012-13 M/S EMSONS ORGANICS LIMITED, SCO 141-13, SECTOR 43-B, CHANDIGARH. VS THE DCIT, CENTRAL CIRCLE-I, CHANDIGARH. ./ PAN /TAN NO: AABCE0631K / APPELLANT / RESPONDENT ! / ASSESSEE BY : SHRI TEJ MOHAN SINGH, ADVOCATE ' ! / REVENUE BY : SHRI CHANDERJEET SINGH, CIT-DR # $ %/ DATE OF HEARING : 30.07.2019 &'() %/ D ATE OF PRONOUNCEMENT : 24.09.2019 )-/ ORDER PER DIVA SINGH THESE FIVE APPEALS HAVE BEEN FILED BY THE ASSESSEE AGAINST THE SEPARATE ORDERS DATED 26.09.2016 OF CIT(A)-3 GU RGAON PERTAINING TO 2005-06, 2009-10, 2010-11, 2011-12 AN D 2012-13 ASSESSMENT YEARS ON IDENTICAL GROUNDS. 2. HOWEVER, BEFORE ADDRESSING THE SAME, PARTIES WER E HEARD ON THE DELAY OF 615 DAYS POINTED OUT BY THE REGISTR Y IN EACH OF THE APPEALS FILED. 3. THE LD. AR INVITING ATTENTION TO THE REVISED CON DONATION OF DELAY APPLICATION DATED 27.07.2019 FILED IN SUBSTIT UTION OF THE ORIGINAL CONDONATION OF DELAY APPLICATION DATED 28. 05.2019 ITAS 1088 TO 1092/CHD/2018 A.Y. 2005-06, 2009-10 TO 2012-13 PAGE 2 OF 17 SUBMITTED THAT THE DELAY HAS OCCURRED IN VIEW OF TH E PECULIAR FACTS AND CIRCUMSTANCES WHEREIN THE TWO DIRECTORS S HRI RAJEEV GOYAL AND SMT. ALKA GOYAL HAVE REMAINED PRE-OCCUPIE D ON ACCOUNT OF THE ILLNESS AND HEALTH RELATED PROBLEMS OF SHRI RAJEEV GOYAL. IT WAS SUBMITTED THAT THE ASSESSEE CO MPANY LYING CLOSED SINCE 2012 HAD ONLY THESE TWO DIRECTORS WHO WERE HUSBAND AND WIFE. ON ACCOUNT OF THE SERIOUS MULTIP LE LIFE THREATENING HEALTH PROBLEMS OF THE HUSBAND SHRI RAJ EEV GOEL, THE WIFE NECESSARILY ALSO TRAVELLED FOR SURGERY, ME DICAL TREATMENT, CARE ETC. AND HENCE ALSO REMAINED UNABLE IN A POSITION TO ADDRESS THE AFFAIRS OF THE ASSESSEE COM PANY. REFERRING TO THE MATERIAL ON RECORD, IT WAS SUBMITT ED THAT SHRI RAJEEV GOYAL WAS SUFFERING OVER A PERIOD OF TIME FR OM MULTIPLE LIFE THREATENING DISEASES SINCE 2013 WHICH INCLUDED CANCER RELATED TREATMENT ETC. AND CONSEQUENTLY HAD BEEN TR AVELLING TO U.S. AND CANADA FOR SURGERIES ETC. THE FACT THAT TH E IMPUGNED ORDER DATED 26.09.2016 IS AN EX-PARTE ORDER AND EVE N IN THE ASSESSMENT PROCEEDINGS, THE ASSESSEE COULD NOT EFFE CTIVELY PARTICIPATE, IT WAS SUBMITTED, WOULD BEAR OUT THESE FACTS. IT WAS SUBMITTED THAT SINCE BOTH THE DIRECTORS BECOME SO P RE-OCCUPIED AND UNAVAILABLE TO ATTEND TO THE COMPANY AFFAIRS, I T BECAME NECESSARY FOR THE ASSESSEE TO EXECUTE A GPA IN FAVO UR OF SHRI G.K.BHOLA. REFERRING TO THE COPY OF THE G.PA EXECUT ED IN FAVOUR OF SHRI B.K. BHOLA ON RECORD, IT WAS SUBMITTED THAT IT WAS ITAS 1088 TO 1092/CHD/2018 A.Y. 2005-06, 2009-10 TO 2012-13 PAGE 3 OF 17 EXECUTED AS AT THE RELEVANT POINT OF TIME SHRI RAJI V GOEL WAS IN CANADA. IN ORDER TO ENSURE REPRESENTATION AT THE A PPROPRIATE FORUM, THE G.PA WAS EXECUTED IN FAVOUR OF SHRI BHOL A MANDATING HIM TO DO ALL THE ACTS NECESSARY FOR ASSE SSEE'S REPRESENTATION BEFORE THE TAX AUTHORITIES, EXCISE & TAXATION ETC. ACTING ON THE SAID AUTHORITY, IT WAS SUBMITTED, SHR I BHOLA HAS BEEN LOOKING AFTER THE PROCEEDINGS BEFORE THE TAX A UTHORITIES. IT WAS ALSO HIS SUBMISSION THAT THE ASSESSEE COMPANY H AD BEEN LYING DEFUNCT SINCE 2012 AND CONSEQUENTLY NO BUSINE SS HAD BEEN CONDUCTED BY THE ASSESSEE COMPANY, CONSEQUENTL Y THE COMPANY EXISTED ON THE STRENGTH OF ONE SEMI-LITERAT E EMPLOYEE SHRI DEEPAK UNIYAL. IT WAS SUBMITTED, THAT SHRI DE EPAK UNIYAL AS A CARETAKER OF SORTS WOULD COMMUNICATE THE ORDER S, NOTICES ETC. RECEIVED BY THE ASSESSEE COMPANY. ARGUMENTS T O THE SAID EFFECT HAD BEEN MADE ON 8 TH JULY,2019, 25 TH JULY,2019 AND FINALLY ON 30 TH JULY,2019. ON THE LAST TWO DATES SHRI D.UNIYAL WAS PRESENT IN THE COURT. RELYING ON THE AFFIDAVITS OF SHRI G.K. BHOLA AND SHRI DEEPAK UNIYAL, THE LD. AR ON THE LAS T TWO DATES OFFERED THAT IN CASE STATEMENT OF SHRI D.UNIYAL WAS TO BE RECORDED OR THE REVENUE WANTED TO CROSS-QUESTION HI M QUA THE CONTENTS OF HIS AFFIDAVIT, HE WAS PRESENT AND AVAIL ABLE. THE CIT-DR WAIVED THE NEED TO CROSS QUESTION HIM. REVER TING BACK TO HIS ARGUMENTS RELYING UPON THE REVISED CONDONATI ON OF DELAY APPLICATION AND THE AFFIDAVITS, THE LD. AR SUBMITTE D THAT DUE TO ITAS 1088 TO 1092/CHD/2018 A.Y. 2005-06, 2009-10 TO 2012-13 PAGE 4 OF 17 SOME COMMUNICATION GAP BETWEEN THE ASSESSEE COMPANY , DEPARTMENT AND THE GPA HOLDER SHRI B.K. BHOLA, THE DELAY HAS OCCURRED INADVERTENTLY. SUPPORTING DOCUMENTS INCLUD ING THE AFFIDAVITS OF SHRI B.K. BHOLA AND SHRI DEEPAK UNIYA L ALONGWITH THE MEDICAL HISTORY OF SHRI RAJIV GOYAL AND E-MAIL COMMUNICATIONS ETC. BETWEEN THE RESPECTIVE PARTIES WERE RELIED UPON. 3.1 REFERRING TO THE SAME, IT WAS HIS SUBMISSION TH AT THE DELAY HAS OCCURRED ON ACCOUNT OF THE INADVERTENT MIS-COMM UNICATION ARISING OUT OF THE PECULIAR FACTS AND CIRCUMSTANCES WHERE THE DIRECTORS REMAINED PRE-OCCUPIED. ACCORDINGLY, IT WA S HIS SUBMISSION THAT THE DELAY MAY BE CONDONED. 4. THE LD. CIT-DR MR.CHANDERJEET SINGH SUBMITTED TH AT THE ASSESSEE BEFORE THE AO HAS ALSO REMAINED UNREPRESEN TED AND EVEN THE IMPUGNED ORDER IS ALSO AN EX-PARTE ORDER. IN THESE CIRCUMSTANCES, THE DELAY IT WAS HIS SUBMISSION DEMO NSTRATES THE CARELESSNESS ON THE PART OF THE ASSESSEE. HOWE VER, CONSIDERING THE MEDICAL RECORD AS NOW PLEADED ON AF FIDAVITS AND THE SUBMISSIONS, A VIEW, IT WAS SUBMITTED, MAY BE T AKEN. 5. THE LD. AR SUBMITTED THAT THE FACT OF LACK OF RE PRESENTATION BEFORE THE TAX AUTHORITIES IS NOT DISPUTED. THE FA CT ON THE CONTRARY, SUPPORTS THE ASSESSEE'S SUBMISSIONS AS TH AT THE IMPUGNED ORDER IS AN EX-PARTE ORDER PRECISELY FOR T HIS REASON. THE IMPUGNED ORDER, IT WAS SUBMITTED, IS DATED 26.0 9.2016 AND ITAS 1088 TO 1092/CHD/2018 A.Y. 2005-06, 2009-10 TO 2012-13 PAGE 5 OF 17 WHEN IT IS CONSIDERED AS PER THE MEDICAL HISTORY PL ACED ON RECORD OF SHRI RAJIV GOYAL, DIRECTOR OF THE COMPANY , HE AND HIS WIFE HAVE REMAINED ENGROSSED WITH MULTIPLE SURGERIE S AND CANCER RELATED PROBLEMS OF SHRI RAJEEV GOEL SINCE 2 013 ON ACCOUNT OF WHICH FACT, THEY HAVE BEEN TRAVELLING TO USA AND CANADA ETC. IT WAS RE-ITERATED THAT THE ASSESSEE CO MPANY HAS BEEN LYING DEFUNCT SINCE 2012 AND ONLY MR. DEEPAK UNIYAL WAS LOOKING AFTER THE AFFAIRS. THE SAID EMPLOYEE, IT W AS SUBMITTED, WAS INCAPABLE OF UNDERSTANDING THE RELEVANCE AND TH E CONSEQUENCES OF THE ORDERS WHICH HE HAP-HAZARDLY FO LLOWED THROUGH IN GOOD FAITH. MR. UNIYAL, IT WAS SUBMITTE D, WAS PRESENT IN THE COURT AND IN CASE THE REVENUE OR THE COURT WANTS TO ASCERTAIN HIS EDUCATION LEVEL OR CAPACITY TO UNDERSTAND, BE MADE A PRAYER THAT HE MAY BE EXAMINE D. THE CONCERNED GENTLEMAN IDENTIFYING HIMSELF AS DEEPAK U NIYAL STOOD UP AND MADE HIMSELF AVAILABLE. HOWEVER, THE LD. CI T-DR WAIVED THE OPPORTUNITY STATING THAT HE WAS REFERRING TO TH E FACTS ON RECORD AND WOULD NOT WANT TO CROSS-QUESTION HIM. T HE LD. AR CONTINUING HIS ARGUMENTS SUBMITTED THAT IN THE EVEN TUALITY DELAY IS CONDONED, HE WOULD BE PRAYING FOR A REMAND BACK OF THE ISSUES TO THE AO AS THE APPELLATE FORUM OF THE CIT(A) MAY NOT BE THE APPROPRIATE FORUM AS EVIDENCES WILL NEED TO BE FILED WHICH BEFORE THE CIT(A) WOULD CONSTITUTE FRESH EVID ENCES AND AS PER LAW, WILL NECESSITATE A REMAND BACK TO THE AO. ITAS 1088 TO 1092/CHD/2018 A.Y. 2005-06, 2009-10 TO 2012-13 PAGE 6 OF 17 6. CONSIDERING THE RECORD, LD. CIT-DR ULTIMATELY PO SED NO OBJECTION TO THE CONDONATION OF DELAY AND AGREED TH AT THE MATTER MAY BE REMANDED TO THE AO AND NOT TO CIT(A) AS ADMITTEDLY THE ASSESSEE HAS NOT BEEN ABLE TO PARTIC IPATE IN THE PROCEEDINGS. 7. HOWEVER, BEFORE WE PROCEED TO ADDRESS THE ISSUES ON MERITS, IT IS NECESSARY FIRST TO ADDRESS THE FACTS SET OUT IN THE REVISED CONDONATION OF DELAY APPLICATION DATED 27.0 7.2019 PLACED ON RECORD BY THE ASSESSEE. THE APPLICATION IS EXTRACTED HEREUNDER FOR THE SAKE OF COMPLETENESS: RESPECTFULLY SUBMITTED AS UNDER:- 1. THAT THE INCOME TAX APPEALS AGAINST THE ORDERS DATED 26.09.2016 OF THE COMMISSIONER OF INCOME TAX (APPEALS)-3, GURGAON RELATING TO ASSESSMENT YEARS 2005-06, 2009-10, 2010-11, 2011-12 AND 2012-13 WERE FILED ON 23.08.2018 WHICH WERE LATE BY 615 DAYS. 2. THAT THE APPELLATE ORDERS WERE RECEIVED ON 17.10.2016 IN THE OFF ICE OF THE COMPANY BEING ATTENDED TO ONLY BY AN OFFICE SUPERVISOR OF THE GROUP COMPANIES SH. DE EPAK UNIYAL WHO IN TURN HANDED OVER THE DOCUMENTS TO CA ALOK KRISHAN WHO WAS AT THAT POINT OF TIM E LOOKING AFTER THE AFFAIRS OF THE GROUP COMPANIES. HE WAS ALSO SENT AN E-MAIL ON 17.10.2016 VIDE OFF ICIAL EMAIL ID [e-mail] ATTACHING THEREWITH COPIES OF THE APPELLATE ORDERS PASSED BY THE C IT(A)-3, GURGAON. COPY OF THE SAME IS ANNEXED HEREWITH AT PAGE 1. 3. THAT THE AUDITORS OF THE COMPANY STATIONED AT NEW DELHI INQUIRED ABOUT THE DETAILS OF ASSESSMENTS FRAMED FOR THE PURPOSE OF INCORPORATING THE DETAILS OF OUTSTAND INGS OF THE INCOME TAX DEPARTMENT AND FOR THAT PURPOSE, SH. DEEPAK UNIYAL CONTACTED THE OFFICE OF C A ALOK KRISHAN. THE COPIES OF THE IMPUGNED ORDERS PASSED BY CIT(A) WERE FORWARDED TO SH. DEEPAK UN IYAL ON HIS PERSONAL EMAIL ID ON 18.05.2017 BY CA ALOK KRISHAN AS THE EMAIL ID [e-mail] HAD BECAME INOPERATIVE WHO FURTHER FORWARDED THE SAME TO MS. ALKA GOYAL., THE DIRE CTOR OF THE COMPANY ON THE SAME DATE. COPY OF THE MAIL IS ANNEXED AT PAGE 35. 4. THAT AGAIN THE NEXT YEAR, THE AUDITORS OF THE COMPANY STATIONED AT NEW DELHI INQUIRED ABOUT THE DETAILS OF ASSESSMENTS FRAMED FOR THE PURPOSE OF INCORPORATIN G THE DETAILS OF OUTSTANDINGS OF THE INCOME TAX DEPARTMENT AND FOR THAT PURPOSE, SH. DEEPAK UNIYAL F ORWARDED THE COPIES OF THE IMPUGNED ORDERS PASSED BY CIT(A) TO THE OFFICIAL EMAIL ID CAM [e-mail] ON 18.06.2018.. COPY OF THE MAIL IS ANNEXED AT PAGE 36. 5. THAT SH. RAJEEV GOYAL AND SMT. ALKA GOYAL ARE THE DIRECTORS O F THE COMPANY. 6. THAT THE COMPANY HAS BEEN LYING DEFUNCT SINCE 2012 AND NO BUSINESS I S BEING CONDUCTED. 7. THAT I B. K. BHOLA, THE UNDERSIGNED HAS THE GPA FROM SH. RAJEEV G OYAL TO SIGN APPEAL AND OTHER RELATED DOCUMENTS ON HIS BEHALF. COPY OF THE SAME IS ANNEX ED HEREWITH AT PAGE 2. 8. THAT SH. RAJEEV GOYAL IS SUFFERING FROM CANCER AND MULTIPLE DISEA SES SINCE 2013 AND HAS BEEN TRAVELLING TO USA SINCE 2013 FOR SURGERIES. 9. THAT HE ALONGWITH HIS WIFE SMT. ALKA GOYAL HAVE BEEN IN THE USA AND CANADA SINCE MARCH 2014 AND HAVE NOT TRAVELLED TO INDIA SINCE THEN. COPY OF BRIEF MEDICAL HI STORY ALONGWITH RECORD IS ANNEXED HEREWITH AT PAGES 3-28. 10. THAT EVEN THE OFFICE SPACE SCO 141-143, SECTOR 43B, CHANDIGARH WAS TAKEN OVER BY THE BANKERS ON 24.03.2017. COPY OF NOTICE FOR SALE OF OFFICE PREMISES ISSUED BY SBI IS ANNEXED AT PAGE 29. ITAS 1088 TO 1092/CHD/2018 A.Y. 2005-06, 2009-10 TO 2012-13 PAGE 7 OF 17 11. THAT I WAS CALLED BY THE ASSESSING OFFICER FOR DEPOSIT OF OUT STANDING DEMAND IN THE MONTH OF AUGUST 2018 AND AT THAT JUNCTURE, I ENQUIRED ABOUT THE FILING OF AP PEAL FROM SH. DEEPAK UNIYAL. HE INFORMED THAT HE HAD HANDED OVER THE DOCUMENTS TO CA ALOK K RISHAN, SECTOR 34, CHANDIGARH. 12. THEREAFTER, WE CONTACTED CA ALOK KRISHAN BUT HE INFORMED TH AT HE HAD FORGOTTEN TO FILE THE APPEALS AGAINST THE APPELLATE ORDERS. 13. THAT ALL THIS WHILE, WE WERE UNDER THE IMPRESSION THAT THE APPEALS AGAINST THE IMPUGNED ORDERS WOULD HAVE BEEN FILED SINCE THE ORIGINAL ORDERS HAD BEEN GIVEN T O THEIR COUNSELS CA ALOK KRISHAN. 14. THAT IMMEDIATELY CORRECTIVE MEASURES WERE INITIATED AND T HE APPEALS WERE FILED THOUGH BELATEDLY ON 23.08.2018 THROUGH SH. TEJMOHAN SINGH ADVOCATE. 15. THAT THE DELAY WAS DUE TO MULTIPLICITY OF PROBLEMS WITH THE COMPANY BEING DEFUNCT, NO REGULAR EMPLOYEE, THE DIRECTOR SUFFERING FROM CANCER AND OUT OF THE COUNTRY W ITH HIS WIFE WHO WAS THE OTHER DIRECTOR AND MISTAKE OF THE CHARTERED ACCOUNTANT WHO WAS R EPRESENTING THE GROUP COMPANIES. 16. THAT THERE BEING NO MALA FIDE INTENTION OF NOT FILING TH E APPEAL IN TIME, IT IS PRAYED THAT THE DELAY BE CONDONED. IT IS, THEREFORE, RESPECTFULLY PRAYED THAT THE DELAY BE CONDONED THERE BEING A REASONABLE CAUSE AND IN THE IN INTEREST OF SUBSTANTIAL JUSTICE, THE APPEAL BE HEARD ON MERITS. 7.1 IT IS SEEN THAT THE APPLICATION IS ACCOMPANIED BY THE FOLLOWING SUPPORTING DOCUMENTS WHICH HAVE BEEN ANNE XED: SR. NO. DESCRIPTION OF DOCUMENTS 1. COPY OF THE E-MAIL DATED 17.10.2016 2. COPY OF THE GENERAL POWER OF ATTORNEY IN FAVOUR OF SHRI B. K. BHOLA ISSUED BY THE DIRECTOR OF THE ASSESSEE-COMPANY. 3. BRIEF MEDICAL HISTORY OF SHRI RAJIV GOYAL, DIREC TOR OF THE COMPANY. 4. COPY OF THE NOTICE FOR SALE OF OFFICE PREMISES I SSUED BY THE SBI. 5. COPY OF THE AFFIDAVIT OFSHRI B. K. BHOLLA DATED 29.05.2019 FILED ALONGWITH THE ORIGINAL APPLICATION FOR CONDONATION OF DELAY. 6. COPY OF THE AFFIDAVIT OF SHRI DEEPAK UNIYAL DATE D 29.05.2019FILED ALONGWITH THE ORIGINAL APPLICATION FOR CONDONATION OF DELAY. 7. COPY OF THE E-MAIL DATED 18.05.2017. 8. COPY OF THE E-MAIL DATED 18.06.2018. 9. COPY OF THE AFFIDAVIT OF SHRI B. K. BHOLLA DATED 27/29.07.2019. 10 COPY OF THE AFFIDAVIT OF SHRI DEEPAK UNIYAL DATE D 27/29.07.2019. 7.2 THE MEDICAL HISTORY OF SHRI RAJIV GOYAL, DIRECT OR ON FACTS HAS BEEN ADDRESSED SEPARATELY IN THE EXTRACT ON WHI CH THE LD. AR HAS RELIED. IT IS ALSO EXTRACTED HEREUNDER FOR THE SAKE OF COMPLETENESS : SENDING A BRIEF MEDICAL HISTORY FOR YOUR KNOWLEDGE & REC ORDS ALONG WITH REPORTS BRIEF HISTORY RAJIV GOYAL WAS DIAGNOSED WITH ULCERITIS COLITIS IN S EP 2013 AND SOME NEURO ENDOCRINE CARCINOID TUMORS WERE ALSO SEEN IN HIS DEUDONAM (THE AREA FROM WHERE SMALL INTESTINES CONNECT WITH STOMACH AND ALL DUCTS LIKE PANCREAS, GALL BLADDER AND LIVER MEET AS PAR T OF DIGESTION SYSTEM) IN INDIA. HE WENT THROUGH SERIES OF TESTS, LIKE CT SCANS, MRTS, PE T SCAN, ETC. AND WAS ADVISED WHIPPLE (AN 8 HOUR SURGERY IN WHICH THE SMALL INTESTINE IS CUT AND ALL DUCTS ARE SHIFTED TO JEUJONAM) SURGERY BY 2 EX- HEADS OF SURGERY DEPTT. OF PG1 CHANDIGARH. LOOKING AT THE RESULTS OF VARIOUS TESTS, CERTAIN EXPERT DOCTORS STRONGLY ADVISED THAT HE SHOULD GET HIMSELF CHECKED AT MEMORIAL SLOAN KETTERING HOSPITAL IN N EW YORK, USA. HE WENT TO USA IN OCTOBER 2013 AND GOT HIS MEDICAL CHECK UPS DONE ALL OVER AGAIN, AND WAS DIAGNOSED WITH CANCER IN THYROID, WHICH WAS REMOVED THROUGH SUR GERY IN NOVEMBER 2013. HE COULD RETURN TO INDIA ONLY IN DEC 2013, AND WHILE THE CHEMOTHERAPY OF T HE THYROID WAS BEING DONE IN ITAS 1088 TO 1092/CHD/2018 A.Y. 2005-06, 2009-10 TO 2012-13 PAGE 8 OF 17 MARCH 2014 IN USA , IT WAS FOUND THAT THE TUMOURS IN THE DEUDONAM HAD ALSO DOUBLED IN SIZE AND HAD TO BE URGENTLY REMOVED THROUGH SURGERY WHICH TOOK PLACE IN NEW YORK ON APRIL 5, 2014 IT WAS UNFORTUNATE FOR HIM WHEN IT WAS DISCOVERED DURING THE THYROID SURGERY THAT THE CANCER HAD SPREAD TO ONE OF HIS LYMPH NODES AND ALSO ,IN HIS DEUDANOM SURGER Y MARGINS WERE NOT FOUND TO BE CLEAR, WHICH MEANT THAT BOTH THE CANCERS CAN RELAPSE. HE I S CURRENTLY UNDERGOING VARIOUS TESTS AND TREATMENTS TO BRING HIMSELF INTO SAFETY ZONE. ALSO, THE ROOT CAUSE OF PERSISTENT PAIN IN THE ABDOMEN IS ST ILL NOT KNOWN. IT IS ACTUALLY VERY PAINFUL AND TAXING ON HIS HEALTH/ BODY TO UNDERGO SO MANY SURGERIES/PROCEDURES ,INVESTIGATIONS,TESTS ETC. IN SUCH A SHORT SPAN AS HE ALREADY HAD TWO MAJOR SURGERIES OF THYROID & DUODENUM. IT WAS VERY UNFORTUNATE THAT DURING THE DUODENUM SURGERY THE MARGINS WERE NOT CLEAR AND T HERE IS POSSIBILITY OF A RELAPSE ANYTIME. THE THYROID TUMUORS HAD ALSO SPREAD TO LYMPH NODES DUE TO WHICH HE HAD TO TAKE RADIO ACTIVE IODINE THERAPY (CHEMOTHERAPY) AND IS UNDER CONSTANT OBS ERVATION. SOME TUMOURS HAVE BEEN OBSERVED ON THE LIVER TOO, WHICH AR E ALSO UNDER CONSTANT OBSERVATION & MAY HAVE TO BE REMOVED BY ANOTHER MAJOR SURGERY . IN AUGUST 2015 HE UNDERWENT SURGERY OF COLORECTAL & WHICH DIDNOT GO WELL...POST SURGERY HE HAD TO BE ON BED FOR ALMOST 4 MONTHS AND UNDERWENT MANY TESTS ..THEN D OC SCHEDULED ANOTHER SURGERY FOR 12TH JAN 16 ( SURGERY DATE ATTACHED ) WHICH COULD NOT BE DONE BECAUSE H E HAD DEVELOPED SHINGLES (LIKE SMALL POX) ON MY BODY & HAD DEVELOPED OTHER COMPLICATIONS ALSO. THE SURGEIY WAS POSTPONED FOR APRIL 25 ,H ,2016.& DURING THESE 4 MONTHS AGAIN HE HAD TERRIBLE TIME BECAUSE HE UNDERWENT MULTIPLE TESTS LIKE NECK ULTRASOUND ,AB DOMEN CONTRAST CYSTOSCOPY, BONE IMAGE STUDY ,CT SCAN OF RIGHT FOOT AS HE HAS DEVELOPED CYST THERE. ON APRIL 25 TH HE UNDERWENT SURGERY & POST SURGERY PROBLEMS. HE IS ALSO GOING THROUGH MAJOR DEPRESSION AND UNDERGOING TREATM ENT FOR THE SAME AT BC CANCER AGENCY ON DEC 22ND WHOLE BODY SCAN WAS DONE WHICH SHOWS SOME SOME C HANGES IN THE ADJACENT SCLEROTIC FOCI NOTED IN THE INTER TROCHANTRIC AREA OF THE PROXIMAL L EFT FEMUR WITH MILDLY INCREASED ACTIVITY .A SCLEROTIC METASTASIS WOULD NOT BE RULED OUT & WILL BE BES T IDENTIFIED ON THE SPECT CT TOMOGRAPHIC IMAGING FOR WHICH TEST TO GET THE DATE. IN 2017 HE AGAIN UNDERWENT THROUGH SERIES OF TESTS LIKE MRI, CT SCAN FOOT ,CT SCAN OF CHEST, HIP & VARIOUS OTHER TESTS TO RALE OUT BONE CANCER BECAUSE OF MULTIPL E PROBLEMS ....CYST IN FOOT & CYST UNDER THE LOBES & ARTHRITIS IN THE BODY FOR WHICH THE REPORTS HAVE BE EN SENT IN LAST MAIL. IN CHEST CT SCAN 3 PULMONARY NODULES ARE SEEN & FINDINGS ARE METAS TATIC DISEASE IS NOT EXCLUDED & WILL BE UNDER OBSERVATION WITH A FOLLOW UP TEST IN 3 MONTHS A GAIN. FOLLOWING UP WITH DR JAISWAL IN BC CANCER AGENCY HOSPITAL FOR THYROID AND CONTINUE HIS DOSE OF SYNTHROID ( 225.5 MEG ) TO SUPPRESS THE CANCER ACTIVITY . THYROGL OBULIN LEVEL IS CONTINUOUSLY ELEVATING FOR WHICH THE TANDEM MASS SPECTROMETRY TEST HAS BEEN SUGGESTED BEFORE THE NEXT VISIT. HE HAS BEEN UNDER CONSTANT OBSERVATION BECAUSE OF TWO MAJOR SURGERIES OF CANCER OF THYROID & DUODENUM & NOW FACING MULTIPLE PROBLEM WHICH COULD BE RELAT ED TO CANCER .THAT IS THE REASON FOR UNDERGOING LOT OF PET SCAN,MRI,CT SCAN, & OTHER TESTS BECAUSE HE HAS DE VELOPED CYSTS AT VARIOUS PLACES LIKE LIVER, FOOT ,HIP, CHEST. NOW AS PER LATEST REPORTS THERE IS INCREASE IN THROGLOBULIN L EVEL & CHROMOGRANIN LEVEL IN HIS BODY WHICH INDICATES RELAPSE OF BOTH THE CANCERS (THYROID & DEUD ONAM) FOR WHICH FURTHER INVESTIGATIONS ARE ON & HE IS STILL UNDER MAJOR DEPRESSION DUE TO WHICH HE COULD NOT DEVOTE TIME FOR OFFICIAL MATTERS. 7.3 ON ACCOUNT OF THESE FACTS, GPA IN FAVOUR OF SHR I B.K. BHOLA HAS BEEN EXECUTED WHO WAS LOOKING OUT FOR THE AFFAI RS OF THE COMPANY. SHRI B.K. BHOLA WAS KEPT INFORMED OF NOTIC ES/ORDERS ETC. RECEIVED AT THE FACTORY PREMISES BY SHRI D. UNIYAL, ONLY EMPLOYEE AT BOTH OF THE DEFUNCT COMPANY. THE CONTENTS OF THE A FFIDAVIT OF SHRI ITAS 1088 TO 1092/CHD/2018 A.Y. 2005-06, 2009-10 TO 2012-13 PAGE 9 OF 17 B.K. BHOLA AND SHRI DEEPAK UNIYAL ARE ALSO EXTRACTE D HEREUNDER FOR THE SAKE OF COMPLETENESS : AFFIDAVIT I, B. K. BHOLA SON OF SHRI OM PARKASH BHOLA AGED 54 YEARS RESIDENT OF H. NO 2389, SECTOR 71, MOHALI DO HEREBY SOLEMNLY AFFIRM AND DECLARE AS UNDER: - 1. THAT I AM THE AUTHORISED SIGNATORY OF M/S EMSONS ORGANICS LIMITED BEING GPA HOLDER OF SH. RAJEEV GOYAL, DIRECTOR. 2. THAT THE INCOME TAX APPEALS AGAINST THE ORDERS DATED 26.09.2016 OF THE COMMISSIONER OF INCOME TAX (APPEALS)-3, GURGAON RELATING TO ASSESSMENT YEARS 2005 -06, 2009-10, 2010-11, 2011-12 AND 2012-13 WERE FILED ON 23.08.2018 WHICH WERE LATE BY 615 DAYS. 3. THAT THE APPELLATE ORDERS WERE RECEIVED ON 17.10.2016 IN THE OFF ICE OF THE COMPANY BEING ATTENDED TO ONLY BY AN OFFICE SUPERVISOR OF THE GROUP COMPANIES SH. DEEPAK UNI YAL WHO IN TURN HANDED OVER THE DOCUMENTS TO CA ALOK KRISHAN WHO WAS AT THAT POINT OF TIME L OOKING AFTER THE AFFAIRS OF THE GROUP COMPANIES. HE WAS ALSO SENT AN E-MAIL ON 17.10.2016 VIDE OFFICI AL EMAIL ID [e-mail] ATTACHING THEREWITH COPIES OF THE APPELLATE ORDERS PASSED BY THE CIT(A)-3, GURGAON. 4. THAT THE AUDITORS OF THE COMPANY STATIONED AT NEW DELHI INQUI RED ABOUT THE DETAILS OF ASSESSMENTS FRAMED FOR THE PURPOSE OF INCORPORATING THE DETAILS OF OUTSTANDIN GS OF THE INCOME TAX DEPARTMENT AND FOR THAT PURPOSE, SH. DEEPAK UNIYAL CONTACTED THE OFFICE OF CA ALOK KRISHAN. THE COPIES OF THE IMPUGNED ORDERS PASSED BY CIT(A) WERE FORWARDED TO SH. DEEPAK UNIY AL ON HIS PERSONAL EMAIL ID ON 18.05.2017 BY CA ALOK KRISHAN AS THE EMAIL ID HO@SURYAPHARMA. COM HAD BECAME INOPERATIVE WHO FURTHER FORWARDED THE SAME TO MS. ALKA GOYAL., THE DIRE CTOR OF THE COMPANY ON THE SAME DATE. 5. THAT AGAIN THE NEXT YEAR, THE AUDITORS OF THE COMPANY STATIONED AT N EW DELHI INQUIRED ABOUT THE DETAILS OF ASSESSMENTS FRAMED FOR THE PURPOSE OF INCORPORAT ING THE DETAILS OF OUTSTANDINGS OF THE INCOME TAX DEPARTMENT AND FOR THAT PURPOSE, SH. DEEPAK UNIYAL FORW ARDED THE COPIES OF THE IMPUGNED ORDERS PASSED BY CIT(A) TO THE OFFICIAL EMAIL ID C [e-mail] ON 18.06.2018. 6. THAT SH. RAJEEV GOYAL AND SMT. ALKA GOYAL ARE THE DIRECTORS OF THE COMPANY. 7. THAT THE COMPANY HAS BEEN LYING DEFUNCT SINCE 2012 AND NO BUSINESS I S BEING CONDUCTED. 8. THAT I B. K. BHOLA, THE UNDERSIGNED HAS THE GPA FROM SH. RAJE EV GOYAL TO SIGN APPEAL AND OTHER RELATED DOCUMENTS ON HIS BEHALF. 9. THAT SH. RAJEEV GOYAL IS SUFFERING FROM CANCER AND MULTIPLE DISE ASES SINCE 2013 AND HAS BEEN TRAVELLING TO USA SINCE 2013 FOR SURGERIES. 10. THAT HE ALONGWITH HIS WIFE SMT. ALKA GOYAL HAVE BEEN IN THE USA AND CANADA SINCE MARCH 2014 AND HAVE NOT TRAVELLED TO INDIA SINCE THEN. 11. THAT EVEN THE OFFICE SPACE SCO 141-143, SECTOR 43B, CHANDIGARH WAS T AKEN OVER BY THE BANKERS ON 24.03.2017. 12. THAT I WAS CALLED BY THE ASSESSING OFFICER FOR DEPOSIT OF OUTS TANDING DEMAND IN THE MONTH OF AUGUST 2018 AND AT THAT JUNCTURE, I ENQUIRED ABOUT THE FILING OF APPEAL FROM SH. DEEPAK UNIYAL. HE INFORMED THAT HE HAD HANDED OVER THE DOCUMENTS TO CA ALOK KRIS HAN, SECTOR 34, CHANDIGARH. 13. THEREAFTER, WE CONTACTED CA ALOK KRISHAN BUT HE INFORMED TH AT HE HAD FORGOTTEN TO FILE THE APPEALS AGAINST THE APPELLATE ORDERS. 14. THAT ALL THIS WHILE, WE WERE UNDER THE IMPRESSION THAT THE APPEALS AGAINST THE IMPUGED ORDERS WOULD HAVE BEEN FILED SINCE THE ORIGINAL ORDERS HAD BEEN GIVE N TO THEIR COUNSELS CA ALOK KRISHAN. 15. THAT IMMEDIATELY CORRECTIVE MEASURES WERE INITIATED AN D THE APPEALS WERE FILED THOUGH BELATEDLY ON 23.08.2018 THROUGH SH. TEJMOHAN SINGH ADVOCATE. 16. THAT THE DELAY WAS DUE TO MULTIPLICITY OF PROBLEMS WITH THE CO MPANY BEING DEFUNCT, NO REGULAR EMPLOYEE, THE DIRECTOR SUFFERING FROM CANCER AND OUT OF THE C OUNTRY WITH HIS WIFE WHO WAS THE OTHER DIRECTOR AND MISTAKE OF THE CHARTERED ACCOUNTANT WHO WAS REPRES ENTING THE GROUP COMPANIES. SD/- DEPONENT VERIFIED THAT THE ABOVE NOTED CONTENTS OF MY AFFIDAVIT ARE TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF AND NOTHING HAS BEEN CONCEALED THEREIN. CHANDIGARH SD/- DATED 27.7.2019. DEPONENT ITAS 1088 TO 1092/CHD/2018 A.Y. 2005-06, 2009-10 TO 2012-13 PAGE 10 OF 17 7.4 CONTENTS OF AFFIDAVIT OF SHRI DEEPAK UNIYAL : AFFIDAVIT I, DEEPAK UNIYAL, SON OF SHRI B. D. UNIYAL AGED 28 YEARS RESID ENT OF HOUSE NO. 280, HALLOMAJRA, CHANDIGARH DO HEREBY SOLEMNLY AFFIRM AND DECLARE AS UNDER: - 1. THAT THE INCOME TAX APPEALS AGAINST THE ORDERS DATED 26.09.2016 O F THE COMMISSIONER OF INCOME TAX (APPEALS)-3, GURGAON RELATING TO ASSESSMENT YEARS 2005-06, 2009 -10, 2010-2011,2011-12 AND 2012- 13 WERE FILED ON 23.08.201S WHICH WERE LATE BY 615 DAYS. 2. THAT THE APPELLATE ORDERS WERE RECEIVED ON 17.10.2016 IN THE OFFIC E OF THE COMPANY BEING ATTENDED TO ONLY BY ME. 3. THAT I HANDED OVER THE DOCUMENTS TO CA ALOK KRISHAN WHO WAS AT TH AT POINT OF TIME LOOKING AFTER THE AFFAIRS OF THE GROUP COMPANIES. HE WAS ALSO SENT AN E -MAIL ON 17.10.2016 VIDE OFFICIAL EMAIL ID [e-mail] ATTACHING THEREWITH COPIES OF THE APPELLATE ORDERS PASSED BY THE CIT(A)-3, GURGAON. 4. THAT THE AUDITORS OF THE COMPANY STATIONED AT NEW DELHI INQUIRED ABOUT THE DETAILS OF ASSESSMENTS FRAMED FOR THE PURPOSE OF INCORPORATING THE DETAILS OF OUTSTANDING S OF THE INCOME TAX DEPARTMENT AND FOR THAT PURPOSE, I CONTACTED THE OFFICE OF CA ALOK KRISHAN. THE COPIES OF THE IMPUGNED ORDERS PASSED BY CIT(A) WERE FORWARDED TO ME ON MY PERSONAL EMAIL ID ON 18.05. 2017 BY CA ALOK KRISHAN AS THE EMAIL ID [e-mail] HAD BECAME INOPERATIVE AND I FURTHER FORWARDED THE SAME TO MS. ALKA GOYAL THE DIRECTOR OF THE COMPANY ON THE SAME DATE. 5. THAT AGAIN THE NEXT YEAR, THE AUDITORS OF THE COMPANY STATIONED AT NEW DELHI INQUIRED ABOUT THE DETAILS OF ASSESSMENTS FRAMED FOR THE PURPOSE OF INCORPORATING T HE DETAILS OF OUTSTANDINGS OF THE INCOME TAX DEPARTMENT AND FOR THAT PURPOSE, I FORWARDED THE COPIES OF THE IMPUGNED ORDERS PASSED BY CIT(A) TO THE OFFICIAL EMAIL ID [e-mail] ON 18.06.2018 . SD/- DEPONENT VERIFICATION :- VERIFIED THAT THE ABOVE NOTED CONTENTS OF MY AFFIDAVIT ARE TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF AND NOTHING HAS BEEN CONCEALED THEREIN. CHANDIGARH SD/- DATED 27.7.2019. DEPONENT 7.5 WE FIND WHEN THE SUBMISSIONS BASED ON THE MATE RIAL AVAILABLE ON RECORD, CONTENTS OF WHICH HAVE BEEN EX TRACTED HEREINABOVE, IT IS SEEN THAT THE ASSESSEE ADMITTEDL Y DURING THE PERIOD INFACT MUCH PRIOR TO THE PERIOD WAS INCAPACI TATED. THE ASSESSEE HAS STAYED ALIVE AND ALERT TO HIS RESPONSI BILITIES BY EXECUTING A GPA IN FAVOUR OF SHRI BHOLA TO ENSURE T HAT THE ASSESSEE REMAINS REPRESENTED. WE FIND THAT THE ASS ESSEE'S G.PA HOLDER RELYING ON THE COMMUNICATION MADE WITH SHRI D.UNIYAL FOLLOWED THESE THROUGH. IT IS SEEN THAT THERE WAS S OME MISCOMMUNICATION BETWEEN SHRI DEEPAK UNIYAL AND THE ERSTWHILE C.A. WHICH LAPSE WAS NOTICED BY THE AUDIT ORS AND ITAS 1088 TO 1092/CHD/2018 A.Y. 2005-06, 2009-10 TO 2012-13 PAGE 11 OF 17 PROMPTLY ADDRESSED. INFACT THE GAP DURING THIS PER IOD SHOWS THAT THE APPEAL FILED AGAINST THE IMPUGNED ORDER WA S PRECEDED BY LACK OF REPRESENTATION EVEN BEFORE THE CIT(A) AL SO. THIS LAPSE IS PLEADED TO BE ARISING DUE TO COMMUNICATION GAPS ETC. BETWEEN SHRI D.UNIYAL AND THE ERSTWHILE C.A. WHEREI N MR. GOEL THE OTHER DIRECTOR WAS ALSO BEING KEPT IN THE LOOP AND SOME E- MAIL ID CREATED FOR COMMUNICATION BETWEEN THE ERSTW HILE C.A. AND THE COMPANY OPERATED BY SHRI D.UNIYAL BECAME IN OPERATIVE. SHRI D. UNIYAL RELYING ON PAST PRACTICE UNDERSTOOD THAT COMMUNICATION WAS COMPLETE WHICH IT APPEARS WAS NOT ACCESSED BY THE ERSTWHILE C.A. IN THE SAID BACKGROUND, WE ARE REQUIRED TO ADJUDICATE ON THE ISSUE WHETHER IN THESE PECULIA R FACTS AND CIRCUMSTANCES SHOULD THE ASSESSEE AFTER HAVING TAKE N ALL POSSIBLE STEPS TO ENSURE THAT IT IS REPRESENTED IN THE VARIOUS FORUMS BE ALLOWED TO SUCCEED IN DEMONSTRATING SUF FICIENT CAUSE OR SHOULD THE ASSESSEE FAIL ON TECHNICALITIE S. WHEN THE CONTENTS OF THE CONDONATION OF DELAY APPLICATION EX TRACTED ABOVE ARE CONSIDERED, ALONGWITH THE CONTENTS OF THE AFFIDAVIT OF SHRI B.K.BHOLA, G.PA HOLDER, SPECIFIC PAGE 37 PARAS 13-14 THEREOF ARE READ ALONGWITH PARAS 3,4 & 5 OF THE AFF IDAVIT OF SHRI DEEPAK UNIYAL, IT IS SEEN THAT THE CONSISTENT DOCUM ENTS AVAILABLE ON RECORD SHOW THAT SHRI DEEPAK UNIYAL EN TRUSTED WITH FOLLOWING UP WITH THE CONCERNS OF DEFUNCT ASSE SSEE COMPANY BROUGHT IT TO THE NOTICE OF SHRI ALOK KRISH AN, THE C.A. ITAS 1088 TO 1092/CHD/2018 A.Y. 2005-06, 2009-10 TO 2012-13 PAGE 12 OF 17 THROUGH THE COMPANY E-MAIL ID WHICH UNKNOWN TO HIM BECAME INOPERATIVE. AS PER SHRI D. UNIYAL WHO WAS HANDLIN G THE CASES, THE NOTICES AND ORDERS WERE DULY COMMUNICATED BY HI M. IT IS SEEN THAT THERE IS NO AFFIDAVIT OF SHRI ALOK KRISHA N ON RECORD AND THE ARGUING COUNSEL WAS REQUIRED TO ADDRESS THI S FACT. THE LD. AR PLEADED HIS INABILITY TO PERSUADE THE ASSESS EE TO REQUEST THE ERSTWHILE C.A. TO GIVE SUCH AN AFFIDAVIT. ACCO RDINGLY, IN VIEW OF THIS SHORTCOMING, THE GPA HOLDER OF THE ASS ESSEE SHRI B.K.BHOLA AND THE OFFICE EMPLOYEE SHRI DEEPAK UNIYA L HAVE STATED THESE FACTS ON AFFIDAVIT. IT HAS BEEN STATE D THAT SHRI DEEPAK UNIYAL WAS PRESENT IN THE COURT FOR CROSS-QU ESTIONING ETC. ON THE BASIS OF THESE FACTS AND ARGUMENTS, IT HAS BEEN PLEADED THAT DELAY BE CONDONED. 7.6 IT IS SEEN THAT THE TIME LIMIT FOR FILING OF TH E APPEALS BEFORE THE ITAT HAS BEEN ADDRESSED IN SUB-SECTION (3) OF S ECTION 253 OF THE INCOME TAX ACT,1961. SUB-SECTION (5) OF SEC TION 253 PERMITS THE ITAT TO ADMIT THE APPEAL OR CROSS-OBJEC TION AS IT MAY BE EVEN BEYOND THE PERIODS SET OUT IN SUB-SECTI ON (3) AND 4). WE ARE PRESENTLY CONCERNED WITH SUB-SECTION (3) OF SECTION 253. THE SAID PROVISION CLEARLY EMPOWERS THE ITAT TO ADMIT AN APPEAL AFTER THE EXPIRY OF THE RELEVANT PERIOD REFE RRED TO IN SUB- SECTION (3) IF IT IS SATISFIED THAT THERE WAS SUFFICIENT CAUSE FOR NOT PRESENTING IT WITHIN THAT PERIOD. ITAS 1088 TO 1092/CHD/2018 A.Y. 2005-06, 2009-10 TO 2012-13 PAGE 13 OF 17 7.7 THE WORDS SUFFICIENT CAUSE AS PROVIDED IN SUB -SECTION (5) OF SECTION 253 HAVE ALSO BEEN USED IN THE LIMITATIO N ACT, 1963 AS WELL AS IN THE CPC. THE SAID REQUIREMENT AS CON SIDERED IN THE OFT QUOTED DECISION OF THE APEX COURT IN THE CA SE OF COLLECTOR LAND ACQUISITION VS MST. KATIJI & OTHERS 167 ITR 471 (S.C) THROWS A GUIDING LIGHT ON THIS ISSUE. THE COURT I N THE SAID DECISION IN UNEQUIVOCAL TERMS HELD THAT THE EX PRESSION SUFFICIENT CAUSE IN SUB SECTION (5) IS ADEQUATELY REALISTIC TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SUB SERVES THE ENDS OF JUSTICE AND THAT BEING ALONE PURPOSE OF THE EXISTENCE OF THE INSTITUTION OR COURTS. ACCORDINGLY, THE AUTHORITATIVE PRONOUNCEMENT OF LAW AS LAID DOWN BY THE COURT IS THAT A JUSTIFIABLY LIBERAL APPROACH HAS TO BE ADOPTED ON PRINCIPLE. THE COURT EVEN CONSIDERING THE PHRASE EVERY DAYS DELAY MUST BE EXPLAINED HAS CLEARLY HELD THAT IT DOES NOT IMPLY THAT WHILE INTERPRETING THE PROVISIONS, A PED ANTIC APPROACH SHOULD BE TAKEN. THE COURT HELD THAT THE D OCTRINE MUST BE APPLIED IN A COMMON SENSE AND PRAGMATIC MAN NER HOLDING THAT WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS ARE PITTED AGAINST EACH OTHER, THE C AUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE ADHERED. WHILE ESPOUSING SUCH AN APPROACH, THE COURT WAS QUICK TO HIGHLIGHT THAT FOR DOING SO WAS IMPERATIVE AS THE OTHER SIDE CANNOT CLAIM TO HAVE A VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A N ON DELIBERATE ITAS 1088 TO 1092/CHD/2018 A.Y. 2005-06, 2009-10 TO 2012-13 PAGE 14 OF 17 DELAY ON THE PART OF THE OTHER SIDE. IN THE FACTS OF THE PRESENT CASE, WE HAVE SEEN THAT SHRI RAJEEV GOEL, THE DIREC TOR UNDERWENT VARIOUS SURGERIES FOR HIS MULTIPLE CANCER RELATED HEALTH ISSUES AND THE OTHER DIRECTOR BEING HIS WIFE , ALSO REMAINED OUT OF THE COUNTRY ALONGWITH SHRI RAJEEV G OEL. THE AFFIDAVIT OF THE GPA HOLDER SHRI B.K. BHOLA HAS BEE N SEEN. THE CONTENTS OF THE SAME HAVE ALSO BEEN VERIFIED BY SHR I DEEPAK UNIYAL, THE SOLE EMPLOYEE OF THE ASSESSEE COMPANY H ANDING THE NOTICES AND ORDERS ETC. FROM VARIOUS AUTHORITIES. IT APPEARS THAT ON ACCOUNT OF A MIS-COMMUNICATION WITH THE ERS TWHILE C.A. AND THE FOLLOW UP BY THE AUDITORS QUA THE ISSUES OF THE DEFUNCT COMPANY, THE NON FILING OF THE APPEAL WAS NOTICED. IN THESE FACTS, IT HAS BEEN PLEADED THAT THE DELAY MAY BE CO NDONED. THESE FACTS WHICH REMAIN UNREBUTTED, WE FIND SUFFIC IENTLY DEMONSTRATE THAT AS THE DELAY WAS NON-DELIBERATE AS CONTEMPLATED BY THE APEX COURT IN THE AFORESAID DEC ISIONS, WE FURTHER FIND THAT BY CONSIDERING THE DELAY IN THE P ECULIAR FACTS, NO DISADVANTAGE IS VISITED UPON THE REVENUE. WE HAV E ALSO SEEN THAT BY WAY OF FILING OF THE PRESENT APPEALS LATE, THE ASSESSEE ALSO HAS NOT DERIVED ANY UNDUE ADVANTAGE AS THERE I S NO VESTED RIGHT IN FAVOUR OF THE REVENUE WHICH CAN BE SAID TO BE DISTURBED IF THE PRESENT DELAY IS CONDONED. GUIDED BY THE PRINCIPLES AS LAID DOWN BY THE APEX COURT IN THE AF ORESAID DECISION, WE ARE OF THE VIEW THAT IN THE ABSENCE OF ANY ITAS 1088 TO 1092/CHD/2018 A.Y. 2005-06, 2009-10 TO 2012-13 PAGE 15 OF 17 JUSTIFIABLE REASON TO DENY THE RELIEF SOUGHT, THE D ELAY OF 615 DAYS IN EACH OF THE APPEALS FILED FOR THE REASONS S ET OUT HEREINABOVE DESERVES TO BE CONDONED. WE SUPPORT TH E CONCLUSION ON THE BASIS OF FOLLOWING PRINCIPLES ENU NCIATED BY THE APEX COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION V MST. KATIJI & OTHERS 167 ITR 471 (CITED SUPRA): THE LEGISLATURE HAS CONFERRED THE POWER TO CONDONE DELAY BY ENACTING SECTION 51 OF THE INDIAN LIMITATION ACT OF 1963 IN ORDER TO ENABLE TH E COURTS TO DO SUBSTANTIAL JUSTICE TO PARTIES BY DISPOSING OF MATTERS ON MERITS. THE EX PRESSION SUFFICIENT CAUSE EMPLOYED BY THE LEGISLATURE IS ADEQUATELY ELASTIC TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANING- FUL MANNER WHICH SUBSERVES THE ENDS OF JUSTICETHAT BEI NG THE LIFE-PURPOSE FOR THE EXISTENCE OF THE INSTITUTION OF COURTS. IT IS COMMON KNOWLEDGE T HAT THIS COURT HAS BEEN MAKING A JUSTIFIABLY LIBERAL APPROACH IN MATTERS INSTITUTED IN THIS COURT. BUT THE MESSAGE DOES NOT APPEAR TO HAVE PERCOLATED DOWN TO ALL THE OTHER COU RTS IN THE HIERARCHY. AND SUCH A LIBERAL APPROACH IS ADOPTED ON PRINCIPL E 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 MERITO RIOUS MATTER BEING THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTICE BEING DEFEATED. AS A GAINST THIS WHEN DELAY IS CONDONED THE HIGHEST THAT CAN HAPPEN IS THAT A CAUSE WOULD BE DE CIDED ON MERITS AFTER HEARING THE PARTIES. 3. EVERY DAYS DELAY MUST BE EXPLAINED DOES NOT M EAN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOURS DELAY, EVERY SECONDS DE LAY? THE DOCTRINE MUST BE APPLIED IN A RATIONAL COMMON SENSE PRAGMATIC MANNER. 4. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERA TIONS ARE PITTED AGAINST EACH OTHER, CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON-DELI BERATE 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 TO BENEFIT BY RESORTING TO DELAY. IN FACT HE RUNS A SERIOUS RISK. 6. IT MUST BE GRASPED THAT JUDICIARY IS RESPECTED N OT 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. 7.8 WE MAY ALSO REFER TO THE DECISION OF THE HON'BL E SUPREME COURT IN THE CASE OF CONCORD OF INDIA INSURANCE CO. LTD. VS. SMT. NIRMALA DEVI & ORS. (1979) 118 ITR 507 (S.C) AND THE DECISION OF THE HON'BLE MADHYA PRADESH HIGH COURT IN THE CASE O F MAHAVIR PRASAD JAIN VS CIT 172 ITR 331 (MP) TO SUPPORT OUR CONCLUSION. THE COURTS IN THE AFORESAID DECISIONS HAS CLEARLY H ELD THAT THE ITAS 1088 TO 1092/CHD/2018 A.Y. 2005-06, 2009-10 TO 2012-13 PAGE 16 OF 17 ASSESSEE CANNOT BE MADE TO SUFFER ON ACCOUNT OF THE NEGLIGENCE OF HIS COUNSEL. THE SAID VIEW WAS REITERATED BY TH E APEX COURT IN THE CASE OF VEDABAI ALIAS VAIJAYANATABAI BABURAO PATIL V. SHANTARAM BABURAO PATIL & ORS. 253 ITR 798 (S.C). 7.9 IN THE FACTS OF THE PRESENT CASE, AS SET OUT IN GREATER DETAIL HEREINABOVE WHERE WE HAVE ACCEPTED THE EXPLANATION OFFERED ON BEHALF OF THE ASSESSEE AS BONAFIDE AND TRUE, WE DEE M IT APPROPRIATE TO ALSO ADDRESS THE RESPONSE OF THE LD. CIT-DR WHO THOUGH HAS NOT OPPOSED THE CONDONATION OF DELAY, HO WEVER, HAS REQUESTED THAT THE ASSESSEE BE ADVISED TO EXHIBIT A ND ENSURE VIGILANCE AND ALERTNESS TOWARDS ITS RIGHTS AND RESP ONSIBILITIES IN ITS FUTURE CONDUCT. WE EXPECT THE ASSESSEE TO E NSURE ITS EFFECTIVE PARTICIPATION WITH DUE DILIGENCE IN ALL F UTURE ACTIONS. HAVING SO OBSERVED, THE DELAY IS CONDONED. 8. IN TERMS OF THE PRAYERS OF THE PARTIES BEFORE TH E BENCH AS NOTED IN THE EARLIER PARAS, THE IMPUGNED EX-PARTE O RDERS ARE SET ASIDE BACK TO THE FILE OF THE AO AND NOT THE CIT(A) AS THE PARTIES HAVE HIGHLIGHTED THAT EVIDENCES ARE NOT ON RECORD AS BEFORE THE AO ALSO, THE ASSESSEE COULD NOT MAKE EFF ECTIVE REPRESENTATION DUE TO THE ILLNESS ETC. OF THE DIREC TORS. THESE EVIDENCES, IT HAS BEEN ARGUED WILL NEED TO BE VERIF IED BY THE AO. THE PRAYER FOR REMAND TO THE AO AS NOTED HAS NOT BE EN OPPOSED BY THE LD. CIT-DR ALSO. WITH THE ABOVE OBSERVATION S, THE IMPUGNED ORDERS ARE SET ASIDE. AT THE COST OF REPET ITION, THE ITAS 1088 TO 1092/CHD/2018 A.Y. 2005-06, 2009-10 TO 2012-13 PAGE 17 OF 17 ASSESSEE IS DIRECTED TO ENSURE FULL AND PROPER PART ICIPATION BEFORE THE AO IN THE RESPECTIVE YEARS. IT IS MADE CLEAR THAT IN THE EVENTUALITY OF ABUSE OF THE TRUST REPOSED, THE AO SHALL BE AT LIBERTY TO PASS AN ORDER ON THE BASIS OF THE MATERI AL AVAILABLE ON RECORD. SAID ORDER WAS PRONOUNCED IN THE OPEN C OURT AT THE TIME OF HEARING ITSELF. 9. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH SEPTEMBER,2019. SD/- SD/- ( $ % & ' ( ) ( ! ) (ANNAPURNA GUPTA) (DIVA SINGH) )* #/ ACCOUNTANT MEMBER ' #/ JUDICIAL MEMBER