Bidyut Kr. Sarbajna C/O-M/s.D.K. Bandyopadhyay & Co,C.A., Kolkata V. DCIT,Cir-49,Kolkata, Kolkata

ITA 1241/KOL/2012

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8187 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2012
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 27-08-2012
• Court: TRIBUNAL
• Department Lawyers: D K RAKSHIT LD J
• Assessee Lawyers: D K BANDYOPADHYAY FCA LD AR
• Keywords: Condonation of delay

Judgement Text

, B , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH- B CALCUTTA () BEFORE .., SHRI C.D. RAO, ACCOUNTANT MEMBER ! /AND '#'$ 1&', SHRI GEORGE MATHAN, JUDICIAL MEMBER !( / ITA NO.1241/ KOL /2012 )'# *+/ ASSESSMENT YEAR: 2007-08 BIDYUT KR. SARBAJANA PAN: ADFPB 4482P D.C.I.T, CIRCLE-49, KOLKATA (&- / APPELLANT ) - ' - - VERSUS -. (/0&-/ RESPONDENT ) &- ) /FOR THE APPELLANT / SHRI D.K BANDYOPADHYAY, FCA, LD.AR /0&- ) / FOR THE RESPONDENT: / SHRI D.K. RAKSHIT, LD. JCIT/DR 1'2 3 /DATE OF HEARING : 30-11-2012 4* 3 /DATE OF PRONOUNCEMENT: 30-11-2012 5 / ORDER '#'$ 1&', SHRI GEORGE MATHAN, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY ASSESSEE AGAINST ORDER O F THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS),XXXII, KOLKATA IN APPEAL NO.11/XXXII/10-1 1/C-49/KOL DATED 30-07.2012 FOR THE ASSESSMENT YEAR 2007-08. 2. SHRI D.K BANDYOPADHYAY, FCA, LEARNED AR REPRESE NTED ON BEHALF OF THE ASSESSEE AND SHRI D.K. RAKSHIT, LD. JCIT/DR REPRESENTED ON BEHALF OF THE REVENUE. 3. IT WAS THE SUBMISSION BY THE LEARNED AR FOR THE ASSESSEE THAT THERE WAS A DELAY OF 3 MONTHS IN FILING THE APPEAL BEFORE THE LEARNED COMMISSIONE R OF INCOME-TAX (APPEALS). IT WAS THE SUBMISSION T HAT THE ASSESSEE HAD FILED AN AFFIDAVIT AS ALSO HIS LEARNED REPRESENTATIVE FOR CONDONATION OF DELAY I N FILING THE APPEAL. IT WAS THE SUBMISSION THAT THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) DID NOT CONDONE THE DELAY IN FILING THE APPEAL AND DISMIS SED THE ASSESSEES APPEAL. THE LEARNED AR PLACED BEFORE US THE COPIES OF THE AFFIDAVIT FILED BEFORE THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS). IT WAS THE SUBMISSION THAT THE DELAY WAS ON ACCOUNT O F FACT THAT THE ASSESSEE WAS TRAVELLING ON VARIOUS DATES AS ALSO ON ACCOUNT OF FACT THAT THE LEARNED A R OF THE ASSESSEE WAS ALSO NOT IN THE STATION. IT WAS THE SUBMISSION THAT IN VIEW OF THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF N. BALAKRISHNANA VS. M. KRISHNAMURTHY REPORTED IN (1998) AIR (SC) 3 222, WHEREIN IT HAS BEEN HELD AS FOLLOWS:- ITA NO.1241/KOL/12-B-GN 2 12. A COURT KNOWS THAT REFUSAL TO CONDONE DELAY W OULD RESULT IN FORECLOSING A SUITOR FROM PUTTING FORTH HIS CAUSE. THERE IS NO PR ESUMPTION THAT DELAY IN APPROACHING THE COURT IS ALWAYS DELIBERATE. THIS CO URT HAS HELD THAT THE WORDS SUFFICIENT CAUSE UNDER SECTION 5 OF THE LIMITATIO N ACT SHOULD RECEIVE A LIBERAL CONSTRUCTION SO AS TO ADVANCE SUBSTANTIAL JUSTICE V IDE SHAKUNTALA DEVI JAM V. KUNTAL KUMARI (AIR 1969 SC 575 (1969) 1 SCR 1006) A ND STATE OF WB. V. ADMINISTRATOR, HOWRAH MUNICIPALITY ((1972) 1 L SCC 366: AIR 1972 SC 749). 13. IT MUST BE REMEMBERED THAT IN EVERY CASE OF DE LAY, THERE CAN BE SOME LAPSE ON THE T OF THE LITIGANT CONCERNED. THAT ALONE IS N OT ENOUGH TO TURN DOWN HIS PLEA AND TO J SHUT THE DOOR AGAINST HIM. IF THE EXPLANAT ION DOES NOT SMACK OF MALA FIDES OR IT IS NOT PUT FORTH AS PART OF A DILATORY STRATE GY, 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 G AIN TIME, THEN THE COURT SHOULD LEAN AGAINST ACCEPTANCE OF THE EXPLANATION. WHILE C ONDONING THE DELAY, THE COURT SHOULD NOT FORGET THE OPPOSITE PARTY ALTOGETHER. IT MUST BE BORNE IN MIND THAT HE IS A LOSER AND HE TOO WOULD HAVE INCURRED QUITE LARGE LITIGATION EXPENSES. FT WOULD BE A SALUTARY GUIDELINE THAT WHEN COURTS CONDONE THE D ELAY DUE TO LACHES ON THE PART OF THE APPLICANT, THE COURT SHALL COMPENSATE THE OP POSITE PARTY FOR HIS LOSS. AS ALSO THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION, ANANTANAG & ANR VS. MST. KATIJI & ORS (1987) 167 ITR 471 (SC), WHEREIN IT HAS BEEN HELD AS FOLLOWS :- 4. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDER ATIONS ARE PITTED AGAINST EACH OTHER, CAUSE OF SUBSTANTIAL JUSTICE DESERVES T O BE PREFERRED FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTICE BEIN G DONE BECAUSE OF A NON- DELIBERATE DELAY. 5. THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONED DELIBERATELY, OR ON ACCOUNT CULPABLE NEGLIGENCE, OR ON ACCOUNT OF MALA FIDE. 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 NOT ON ACCOUNT OF ITS POWER TO LEGALISE INJUSTICE ON TECHNICAL GROUNDS BUT BECAUS E IT IS CAPABLE 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 O F THE APPEAL. 3.1 THE DELAY WAS LIABLE TO BE CONDONED AND THE AP PEAL SHOULD BE HEARD ON MERITS. THE LEARNED AR OF THE ASSESSEE ALSO PLACED RELIANCE UPON THE ORDER/ D ECISION OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL I N THE CASE OF M/S GANGES COMMERCIAL COMPANY (P) LTD VS. I.T.O, W 6(2), KOL IN ITA NO.437/KOL/2010 FOR THE A.Y 2003-04 DATED 18 TH MAY 2010. 4. IN REPLY, THE LEARNED JCIT/DR HAS VEHEMENTLY S UPPORTED THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS). IT WAS SUBMITTED THAT THE DELAY WAS NOT LIABLE TO BE CONDONED AS ADEQUATE REASON HAS NOT BEEN SHOWN. ITA NO.1241/KOL/12-B-GN 3 5.. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PER USAL OF THE DECISIONS OF THE HONBLE SUPREME COURT IN THE CASES OF N. BALAKRISHNANA & COLLECTO R, LAND ACQUISITION, ANANTANAG & ANR (REFER TO SUPRA) AS ALSO THE DECISION OF THE CO-ORDINATE BEN CH OF THIS TRIBUNAL IN THE CASE OF M/S GANGES COMMERCIAL CO. P.LTD (REFER TO SUPRA) SHOWS THAT RE ASONABLENESS SHOULD BE SHOWN WHEN CONSIDERING THE ISSUE OF CONDONATION OF DELAY. THE ASSESSEE HAS FI LED AN AFFIDAVIT ALONG WITH LEARNED REPRESENTATIV E OF THE ASSESSEE EXPLAINING THE REASONS FOR THE DELAY IN FILING THE APPEAL. THE REASONS MENTIONED IN THE AFFIDAVIT ARE PLAUSIBLE REASONS AND THE REASONS HAV E NOT BEEN SHOWN TO BE FALSE SO AS TO VITIATE THE AFFIDAVIT FILED. IN THE CIRCUMSTANCES, WE ARE OF T HE CONSIDERED OPINION THAT THE DELAY IN FILING THE APPEAL BY THE ASSESSEE BEFORE THE 1 ST APPELLATE AUTHORITY DESERVES TO BE CONDONED AND WE DO SO. FURTHER, AS THE ISSUES IN THE APPEAL HAVE NOT BEEN ADJUDICATED ON M ERITS, THE DELAY IN FILING THE APPEAL BEFORE THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) IS CONDONED AN D THE ISSUES IN THE APPEAL ARE RESTORED TO THE FILE OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) F OR ADJUDICATING THE SAME ON MERITS. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSE. 6 5 1 7 1' 8 69 THIS ORDER IS PRONOUNCED IN OPEN COURT AS DICTATED ON DT 30-11-2012 *PP/SPS 5 3 /)): ;:*< / COPY OF THE ORDER FORWARDED TO: 1. . &- / THE APPELLANT : SHRI BIDYUT KR. SARBAJANA C/O M/ S. D.K BANDYOPADHYAY & CO. CHARTERED ACCOUNTANTS, 87 LENIN SARANI, 2 ND FL., KOL-13. 2 /0&- / THE RESPONDENT- COMMISSIONER OF INCOME-TAX (A) XXXII 54/1 R.A KIDWAI ROAD, KOL-16. 3 4. . )5' / THE CIT, )5' ( )/ THE CIT(A) 5 . =)8 /)' / DR, KOLKATA BENCH 6 . GUARD FILE . 0: /)/ TRUE COPY, 5'1/ BY ORDER, 6 !' /ASSTT REGISTRAR SD/- SD/- ( .. , ) ( C.D RAO, ACCOUNTANT MEMBER) ( '#'$ 1&' , ) (GEORGE MATHAN, JUDICIAL MEMBER) ( (( ( ) )) ) DATE 30-112012