NEUTRON SERVICES CENTRE P. LTD, MUMBAI V. ITO 9(2)(3), MUMBAI

ITA 1180/MUM/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3960 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 11 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 15-02-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 21-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER ITA NO.1180/MUM/2012 ASSESSMENT YEAR:2008-09 M/S NEUTRON SERVICES CENTRE PVT. LTD. OM, PLOT NO.88, ABHINAV NAGAR, CROSS ROAD NO.1/B BORIVALI (EAST), MUMBAI-400066 ITO-9(2)(3), MUMBAI ( ! ' /ASSESSEE) ( # / REVENUE) PAN. NO. AABCN4114E % #& ' ' ( / DATE OF HEARING : 15/02/2016 ' ' ( / DATE OF ORDER: 18/02/2016 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 11/01/2012, OF THE LD. FIRST APPELLATE AUTHORITY, M UMBAI, ON ! ' / ASSESSEE BY NONE # / REVENUE BY SHRI PRAKASH L. PATHADE ITA NO.1180/MUM/2012 M/S NEUTRON SERVICES CENTRE PVT. LTD. 2 THE GROUND THAT SUFFICIENT OPPORTUNITY OF BEING HEA RD, REJECTING THE APPLICATION OF CODONATION OF DELAY, WAS NOT PRO VIDED TO THE ASSESSEE AND FURTHER IGNORING THE SERIOUS PARALYTIC AL ATTACK UPON THE DIRECTOR OF THE ASSESSEE COMPANY. 2. DURING HEARING OF THIS APPEAL, NONE WAS PRESENT FOR THE ASSESSEE IN SPITE OF THE FACT THAT ON 25/02/201 3, THE ASSESSEE REQUESTED FOR ADJOURNMENT AND THEREAFTER I SSUANCE OF REGISTERED AD NOTICE ON 03/07/2015. WE HAVE NO OPTI ON BUT TO DECIDE THE APPEAL ON THE BASIS OF MATERIAL AVAIL ABLE ON RECORD. THE LD. DR, SHRI PRAKASH L. PATHADE, CONTEN DED THAT THE DELAY WAS NOT RIGHTLY CONDONED BY THE LD. COMMI SSIONER OF INCOME TAX (APPEALS) AS THERE WAS NO VALID REASON F OR SUCH CONDONATION. 2.1. WE HAVE CONSIDERED THE SUBMISSIONS AND PERUSE D THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRI EF, ARE THAT BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) , THERE WAS DELAY OF EIGHT MONTHS IN FILING THE APPEAL, WHI CH WAS NOT CONDONED BY THE LD. FIRST APPELLATE AUTHORITY. IT IS NOTICED THAT ONE OF THE DIRECTORS, WHO WAS LOOKING AFTER TH E TAXATION MATTER, SUFFERED PARALYTIC STROKE AND WAS UNABLE TO LOOK AFTER THE FINANCIAL ADMINISTRATIVE MATTERS, WHICH RESULTE D INTO DELAY OF FILING THE APPEAL. IN SUCH A SITUATION, NO DOUBT FILING OF AN APPEAL IS A RIGHT GRANTED UNDER THE STATUTE TO THE ASSESSEE AND IS NOT AN AUTOMATIC PRIVILEGE, THEREFORE, THE ASSES SEE IS EXPECTED TO BE VIGILANT IN ADHERING TO THE MANNER A ND MODE IN WHICH THE APPEALS ARE TO BE FILED IN TERMS OF THE R ELEVANT PROVISIONS OF THE ACT. NEVERTHELESS, A LIBERAL APPR OACH HAS TO ITA NO.1180/MUM/2012 M/S NEUTRON SERVICES CENTRE PVT. LTD. 3 BE ADOPTED BY THE APPELLATE AUTHORITIES, WHERE DELA Y HAS OCCURRED FOR BONA FIDE REASONS ON THE PART OF THE ASSESSEE OR THE REVENUE IN FILING THE APPEALS. IN MATTERS CONC ERNING THE FILING OF APPEALS, IN EXERCISE OF THE STATUTORY RIG HT, A REFUSAL TO CONDONED THE DELAY CAN RESULT IN A MERITORIOUS MATT ER BEING THROWN OUT AT THE THRESHOLD, WHICH MAY LEAD TO MISC ARRIAGE OF JUSTICE. THE JUDICIARY IS RESPECTED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GROUNDS BUT BECA USE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. 2.2. THE HONBLE APEX COURT IN A CELEBRATED DECISI ON IN COLLECTOR, LAND ACQUISITION VS MST. KATIJI & ORS. 1 67 ITR 471 OPINED THAT WHEN TECHNICAL CONSIDERATION AND SUBSTA NTIAL JUSTICE ARE PITTED AGAINST EACH OTHER, THE COURTS A RE EXPECTED TO FURTHER THE CAUSE OF SUBSTANTIAL JUSTICE. THIS IS FOR THE REASON THAT AN OPPOSING PARTY, IN A DISPUTE, CANNOT HAVE A VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A N ON- DELIBERATE DELAY. THEREFORE, IT FOLLOWS THAT WHILE CONSIDERING MATTERS RELATING TO THE CONDONATION OF DELAY, JUDIC IOUS AND LIBERAL APPROACH IS TO BE ADOPTED. IF SUFFICIENT CAUSE IS FOUND TO EXIST, WHICH IS BONA-FIDE ONE, AND NOT DUE TO NE GLIGENCE OF THE ASSESSEE, THE DELAY NEEDS TO CONDONED IN SUCH C ASES. THE EXPRESSION SUFFICIENT CAUSE IS ADEQUATELY ELASTIC TO ENABLE THE COURTS TO APPLY LAW IN A MEANINGFUL MANNER, WHICH S UB-SERVES THE END OF JUSTICE- THAT BEING THE LIFE PURPOSE OF THE EXISTENCE OF THE INSTITUTION OF THE COURTS. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATION ARE PITTED AGAINST EACH OTH ER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERR ED. THIS ITA NO.1180/MUM/2012 M/S NEUTRON SERVICES CENTRE PVT. LTD. 4 MEANS THAT THERE SHOULD BE NO MALAFIDE OR DILATORY TACTICS. SUFFICIENT CAUSE SHOULD RECEIVE LIBERAL CONSTRUCTIO N TO ADVANCE SUBSTANTIAL JUSTICE. THE HONBLE APEX COURT IN COL LECTOR, LAND ACQUISITION VS MST. KATIJI & ORS. (167 ITR 471) OBS ERVED AS UNDER:- 3. THE LEGISLATURE HAS CONFERRED THE POWER TO COND ONE DELAY BY ENACTING SECTION 51 OF THE LIMITATION ACT OF 1963 I N ORDER TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO PART IES BY DISPOSING OF MATTERS ON DE MERITS. THE EXPRESSION SUFFICIENT CAUSE EMPLOYED BY THE LEGISLATURE IS ADEQUATELY ELASTIC T O ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHIC H SUBSERVES THE ENDS OF JUSTICE THAT BEING THE LIFE-PURPOSE OF THE EXISTENCE OF THE INSTITUTION OF COURTS. IT IS COMMON KNOWLEDGE T HAT THIS COURT HAS BEEN MAKING A JUSTIFIABLY LIBERAL APPROACH IN M ATTERS INSTITUTED IN THIS COURT. BUT THE MESSAGE DOES NOT APPEAR TO HAVE PERCOLATED DOWN TO ALL THE OTHERS COURTS IN THE HIE RARCHY. 2.4. FURTHERMORE, THE HON'BLE SUPREME COURT IN THE CASE OF VEDABAI ALIA VAIJAYANATABAI BABURAO PATIL V S. SHANTARAM BABURAO PATIL 253 ITR 798 HELD THAT THE C OURT HAS TO EXERCISE THE DISCRETION ON THE FACTS OF EACH CAS E KEEPING IN MIND THAT IN CONSTRUING THE EXPRESSION SUFFICIENT CAUSE, THE PRINCIPLE OF ADVANCING SUBSTANTIAL JUSTICE IS OF PR IME IMPORTANCE. THE COURT HELD THAT THE EXPRESSION SUF FICIENT CAUSE SHOULD RECEIVE LIBERAL CONSTRUCTION. HAVING MADE THE AFORESAID OBSERVATION AND CONSIDERI NG THE MATERIAL FACTS AVAILABLE ON RECORD AND MORE SPE CIFICALLY THE REASON OF DELAY, AS MENTIONED EARLIER, THE SERIOUS AILMENT OF THE DIRECTOR, WHO WAS HANDLING FINANCIAL ADMINISTRA TIVE ITA NO.1180/MUM/2012 M/S NEUTRON SERVICES CENTRE PVT. LTD. 5 MATTERS, BY TAKING A LENIENT VIEW, THE DELAY IS CON DONED, THEREFORE, WE DIRECT THE LD. FIRST APPELLATE AUTHOR ITY TO DECIDE THE APPEAL OF THE ASSESSEE ON MERIT AND IN ACCORDAN CE WITH LAW. THE ASSESSEE BE GIVEN OPPORTUNITY OF BEING HE ARD WITH FURTHER LIBERTY TO FURNISH EVIDENCE, IF ANY, IN SUP PORT OF ITS CLAIM, THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. THE ASSESSEE IS ALSO DIRECTED TO REMAIN VIGILANT IN FUTURE AND TO APPEAR BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) WITHIN ONE MONTH FROM THE RECEIPT OF THIS ORDER. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS FREE TO ADJUDICATE THE APPEAL OF THE ASSESSEE AS PER HIS CONVENIENCE O R A MUTUALLY PRE-DECIDED DATE. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. DR AT THE CONCLUSION OF THE HEARING ON 15/02/2016. SD/- SD/- ( SANJAY ARORA ) (JOGINDER SINGH) ! ' / ACCOUNTANT MEMBER # ' /JUDICIAL MEMBER % & MUMBAI; ) DATED : 18/02/2016 F{X~{T? P.S/. . . $#%&'(')% / COPY OF THE ORDER FORWARDED TO : 1. +,- / THE APPELLANT 2. ./,- / THE RESPONDENT. 3. 0 0 % 1' ( + ) / THE CIT, MUMBAI. 4. 0 0 % 1' / CIT(A)- , MUMBAI ITA NO.1180/MUM/2012 M/S NEUTRON SERVICES CENTRE PVT. LTD. 6 5. 3#4 .' , 0 +( 5 , % & / DR, ITAT, MUMBAI 6. 7& / GUARD FILE. / BY ORDER, /3+' .' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , % & / ITAT, MUMBAI