The Gujarat State Co. Op. Agriculture & Rural Development Bank Ltd., Ahmedabad V. ITO, Ward-5(2)(2), Ahmedabad

ITA 1123/AHD/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8137 (ITAT-AHMEDABAD)
• Duration Of Justice: 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 02-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: KETAN H SHAH
• Keywords: Corroborative evidences; Condonation of delay

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, HONBLE JUDICIAL MEMBER AND SHRI WASEEM AHMED HONBLE ACCOUNTANT MEMBER ITA.NO.1123/AHD/2019 / ASSTT.YEAR : 2010-11 GUJARAT STATE CO - OP. AGRICULTURE & RURAL DEVELOPMENT BANK LTD. C/O. KETAN H. SHAH, ADVOCATE 512, TIMES SQUARE-1 OPP: RAM BAUG BUNGALOW THALTEJ SHILAJ ROAD THALTEJ, AHMEDABAD. VS ITO, WARD - 5(2)(2) AHMEDABAD. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI KETAN H. SHAH, AR REVENUE BY : SHRI VINOD TANWANI, SR.DR / DATE OF HEARING : 19/07/2019 / DATE OF PRONOUNCEMENT: 19/07/2019 !'/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST O RDER OF THE LD.CIT(A)-5, AHMEDABAD DATED 24.5.2019. 2. THE ASSESSEE HAS FILED AN APPLICATION FOR EARLY HEARING OF THE APPEAL. WHILE HEARING THE APPLICATION, WE FIND THAT APPEAL OF THE ASSESSEE WAS DISMISSED BY THE LD.CIT(A) DUE TO TIME LIMIT FOR FI LING THE APPEAL BEFORE THE LD.CIT(A), IN OTHER WORDS, APPEAL WAS LATE FILED BY 68 DAYS BEFORE THE LD.CIT(A). THEREFORE, WE CONFRONTED BOTH THE PARTI ES AS TO WHY THIS APPEAL BE ITA NO.1123/AHD/2019 2 NOT TAKEN FOR HEARING ITSELF, BECAUSE THE ISSUE AGI TATED BY THE ASSESSEE IN THE APPEAL IS ALSO AGAINST NON-CONDONATION OF DELAY IN FILING THE APPEAL BEFORE THE LD.CIT(A). BOTH THE LD.REPRESENTATIVES DID NOT OBJ ECT FOR TAKING UP THE APPEAL FOR HEARING. 3. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, WE HAVE GONE THROUGH THE RECORD CAREFULLY. THE ASSESSEE HAS FILED APPEAL BE FORE THE LD.CIT(A) BEYOND THE PRESCRIBED PERIOD I.E. IT WAS TIME BARRED BY 68 DAYS. IN FORM NO.35, THE ASSESSEE HAS PLEADED THAT THE DELAY WAS CAUSED DUE TO RESHUFFLING OF THE STAFF AND ALSO DUE TO NEGLIGENCE ON THE PART OF DEALING O FFICE, OTHERWISE, THE ASSESSEE HAS COMPLIED WITH ALL THE NOTICES BEFORE T HE REVENUE AUTHORITIES. THE LD.CIT(A) HAS DISMISSED THE APPEAL OF THE ASSES SEE ON THE GROUND THAT THE REASON GIVEN BY THE ASSESSEE WAS NOT EXPLAINED WITH SUPPORTING EVIDENCE. 4. WE FIND THAT S UB-SECTION 5 OF SECTION 253 OF THE ACT CONTEMPLATES THAT THE TRIBUNAL MAY ADMIT AN APPEAL OR PERMIT FIL ING OF MEMORANDUM OF CROSS-OBJECTIONS AFTER EXPIRY OF RELEVANT PERIOD , IF IT IS SATISFIED THAT THERE WAS A SUFFICIENT CAUSE FOR NOT PRESENTING IT WITHIN THAT PERIOD. THIS EXPRESSION SUFFICIENT CAUSE EMPLOYED IN THE SECTI ON HAS ALSO BEEN USED IDENTICALLY IN SUB-SECTION 3 OF SECTION 249 OF INCO ME TAX ACT, WHICH PROVIDES POWERS TO THE LD.COMMISSIONER TO CONDONE T HE DELAY IN FILING THE APPEAL BEFORE THE COMMISSIONER. SIMILARLY, IT HAS BEEN USED IN SECTION 5 OF INDIAN LIMITATION ACT, 1963. WHENEVER INTERPRETATION AND CONSTRUCTION OF THIS EXPRESSION HAS FALLEN FOR CONS IDERATION BEFORE HONBLE HIGH COURT AS WELL AS BEFORE THE HONBLE SU PREME COURT, THEN, HONBLE COURT WERE UNANIMOUS IN THEIR CONCLUSION TH AT THIS EXPRESSION IS TO BE USED LIBERALLY. WE MAY MAKE REFERENCE TO THE FOLLOWING ITA NO.1123/AHD/2019 3 OBSERVATIONS OF THE HONBLE SUPREME COURT FROM THE DECISION IN THE CASE OF COLLECTOR LAND ACQUISITION VS. MST. KATIJI & OTH ERS, 1987 AIR 1353: 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 AGAINST THIS WHEN DELAY IS CONDONED TH E HIGHEST THAT CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERI TS AFTER HEARING THE PARTIES. 3. 'EVERY DAY'S DELAY MUST BE EXPLAINED' DOES NOT M EAN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOU R'S DELAY, EVERY SECOND'S DELAY? 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 DE SERVES TO BE PREFERRED FOR THE OTHER SIDE CANNOT CLAIM TO HAVE V ESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON-DELIBERATE DE LAY. 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 T O 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 GROUND S BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. 5. SIMILARLY, WE WOULD LIKE TO MAKE REFERENCE TO AU THORITATIVE PRONOUNCEMENT OF HONBLE SUPREME COURT IN THE CASE OF N.BALAKRISHNAN VS. M. KRISHNAMURTHY (SUPRA). IT READS AS UNDER: RULE OF LIMITATION ARE NOT MEANT TO DESTROY THE RI GHT OF PARTIES. THEY ARE MEANT TO SEE THAT PARTIES DO NOT RESORT TO DILATORY TACTICS, BUT SEEK THEIR REMEDY PROMPTLY. THE OBJECT OF PROVI DING A LEGAL REMEDY IS TO REPAIR THE DAMAGE CAUSED BY REASON OF LEGAL INJURY. LAW OF LIMITATION FIXES A LIFE-SPAN FOR SUCH LEGAL REMEDY FOR THE ITA NO.1123/AHD/2019 4 REDRESS OF THE LEGAL INJURY SO SUFFERED. TIME IS PR ECIOUS AND THE WASTED TIME WOULD NEVER REVISIT. DURING EFFLUX OF T IME NEWER CAUSES WOULD SPROUT UP NECESSITATING NEWER PERSONS TO SEEK LEGAL REMEDY BY APPROACHING THE COURTS. SO A LIFE SPAN MU ST BE FIXED FOR EACH REMEDY. UNENDING PERIOD FOR LAUNCHING THE REME DY MAY LEAD TO UNENDING UNCERTAINTY AND CONSEQUENTIAL ANARCHY. LAW OF LIMITATION IS THUS FOUNDED ON PUBLIC POLICY. IT IS ENSHRINED IN THE MAXIM INTEREST REIPUBLICAE UP SIT FINIS LITIUM (IT IS FOR THE GENERAL WELFARE THAT A PERIOD BE PUTT TO LITIGATION). RULES OF LIMITATION ARE NOT MEANT TO DESTROY THE RIGHT OF THE PARTIES. THEY ARE MEANT TO SEE THAT PARTIES DO NOT RESORT TO DILATORY TACTICS BUT SEEK THEIR REMEDY PROMPTLY. THE IDEA IS THAT EVERY LEGAL REMEDY MUST BE KEPT ALIVE FOR A LEGISLATIVELY FIXED PERIOD OF TIME. A COURT KNOWS THAT REFUSAL TO CONDONE DELAY WOULD R ESULT FORECLOSING A SUITOR FROM PUTTING FORTH HIS CAUSE. THERE IS NO PRESUMPTION THAT DELAY IN APPROACHING THE COURT IS ALWAYS DELIBERATE. THIS COURT HAS HELD THAT THE WORDS 'SUF FICIENT CAUSE' UNDER SECTION 5 OF THE LIMITATION ACT SHOULD RECEIV E A LIBERAL CONSTRUCTION SO AS TO ADVANCE SUBSTANTIAL JUSTICE V IDE SHAKUNTALA DEVI LAIN VS. KUNTAL KUMARI [AIR 1969 SC 575] AND S TATE OF WEST BENGAL VS. THE ADMINISTRATOR, HOWRAH MUNICIPALITY [ AIR 1972 SC 749]. IT MUST BE REMEMBERED THAT IN EVERY CASE O F DELAY THERE CAN BE SOME LAPSE ON THE PART OF THE LITIGANT CONCE RNED. THAT ALONE IS NOT ENOUGH TO TURN DOWN HIS PLEA AND TO SHUT THE DOOR AGAINST HIM. IF THE EXPLANATION DOES NOT SMACK OF MALA FIDE S OR IT IS NOT PUT FORTH AS PART OF A DILATORY STRATEGY THE COURT MUST SHOW UTMOST CONSIDERATION TO THE SUITOR. BUT WHEN THERE IS REAS ONABLE GROUND TO THINK THAT THE DELAY WAS OCCASIONED BY THE PARTY DELIBERATELY TO GAIN TIME THEN THE COURT SHOULD LEAN AGAINST ACCEPT ANCE OF THE EXPLANATION. WHILE CONDONING DELAY THE COULD SHOULD NOT FORGET THE OPPOSITE PARTY ALTOGETHER. IT MUST BE BORNE IN MIND THAT HE IS A LOOSER AND HE TOO WOULD HAVE INCURRED QUIET A LARGE LITIGATION EXPENSES. IT WOULD BE A SALUTARY GUIDELINE THAT WHE N COURTS CONDONE THE DELAY DUE TO LACHES ON THE PART OF THE APPLICANT THE COURT SHALL COMPENSATE THE OPPOSITE PARTY FOR HIS L OSS. WE DO NOT DEEM IT NECESSARY TO RE-CITE OR RECAPITUL ATE THE PROPOSITION LAID DOWN IN OTHER DECISIONS. IT IS SUFFICE TO SAY THAT THE HONBLE COURTS ITA NO.1123/AHD/2019 5 ARE UNANIMOUS IN THEIR APPROACH TO PROPOUND THAT WH ENEVER THE REASONS ASSIGNED BY AN APPLICANT FOR EXPLAINING THE CONDONA TION OF DELAY, THEN SUCH REASONS ARE TO BE CONSTRUED WITH A JUSTICE ORI ENTED APPROACH. 6. IN THE LIGHT OF THE ABOVE, LET US EXAMINE THE FA CTS OF THE PRESENT CASE. A PERUSAL OF THE RECORD WOULD INDICATE THAT THE ASSES SMENT ORDER WAS SERVED UPON THE ASSESSEE ON 15.11.2017 AND APPEAL OUGHT TO HAVE BEEN FILED BEFORE THE LD.CIT(A) ON OR BEFORE 14.12.2017. THIS APPEAL WAS E-FILED ON 19.2.2018. ACCORDING TO THE ASSESSEE, BECAUSE OF RESHUFFLING O F STAFF AND DUE TO SOME LAPSES ON THE PART OF THE CONCERNED OFFICER, ORDER OF THE LD.CIT(A) WAS NOT BROUGHT TO THE NOTICE OF THE MANAGEMENT. WHEN IT W AS COME TO THE NOTICE OF THE MANAGEMENT IMMEDIATELY THE APPEAL WAS FILED. A FTER PERUSAL OF THE EXPLANATION OF THE ASSESSEE, WE ARE OF THE VIEW THA T THE ASSESSEE HAS NOT ADOPTED DELAY TACTICS AS A STRATEGY TO PROLONG THE FILING OF APPEAL BEFORE THE LD.CIT(A). IN OTHER WORDS, THERE IS NO MALA FIDE INTENTION AT THE ENDS OF THE ASSESSEE NOT TO FILE THE APPEAL WELL IN TIME. THE PRESENT CIRCUMSTANCE WAS HAPPENED ONLY ACCOUNT OF BONA FIDE MISTAKE BECAUSE THE ASSESSEE WILL NOT GAIN ANYTHING BY MAKING ITS APPEAL TIME BARRED. TH EREFORE, WE CONDONE THE DELAY IN FILING THE APPEAL BEFORE THE LD.CIT(A). W E REMIT ALL ISSUES TO THE FILE OF THE LD.CIT(A) FOR FRESH ADJUDICATION ON MERIT. THE ASSESSEE WILL BE AT LIBERTY TO SUBMIT DETAILS IN SUPPORT OF ITS EXPLANA TION. THE ASSESSEE IS DIRECTED TO COOPERATE WITH THE CIT(A) AND NOT TO PROLONG THE MATTER BY TAKING UNNECESSARY ADJOURNMENTS. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 19 TH JULY, 2019 AT AHMEDABAD. SD/- SD/- (WASEEM AHMED ) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 19/07/2019