Madhusudhana Reddy, CHENNAI V. ACIT, CHENNAI

ITA 1258/CHNY/2015

• Counselvise Citation: 125821714 RSA 2015
• Duration Of Justice: 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 25-05-2015
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH
• Assessee Lawyers: K MEENAKSHISUNDHARAM ITP
• Keywords: Period of limitation

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI . . . , ! , ' #$ BEFORE SHRI N.R.S.GANESAN, JUDICIAL MMBER AND SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER ./ ITA NO. 1258/MDS/2015 / ASSESSMENT YEAR : 2010-11 SHRI MADHUSUDHANA REDDY, NO.4/663, MAIN ROAD, PADIANALLUR, RED HILLS, CHENNAI 600 052. PAN AHYPM9288P APPELLANT) V. THE ASSISTANT COMMISSIONER OF INCOME-TAX, BUSINESS CIRCLE-IV, CHENNAI. RESPONDENT) / APPELLANT BY : SHRI K. MEENAKSHISUNDHARAM, ITP / RESPONDENT BY : SHRI A.V.SREEKANTH, JCIT ! / DATE OF HEARING : 28.07.2015 '# ! / DATE OF PRONOUNCEMENT: 07.08.2015 / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX(APPEALS) DATED 5. 3.2015. - - ITA 1258/15 2 2. THE GRIEVANCE OF THE ASSESSEE IN THIS APPEAL IS WITH REGARD TO NOT ADMITTING THE APPEAL BY THE COMMISSIO NER OF INCOME-TAX(APPEALS) BY NOT CONDONING THE DELAY OF 7 3 DAYS. 3. IN THIS CASE, THE ASSESSMENT ORDER WAS RECEIVED BY THE ASSESSEE ON 29.3.2013 AND THE DUE DATE FOR FILING O F THE APPEAL BEFORE THE COMMISSIONER OF INCOME-TAX(APPEALS) WAS 30 DAYS FROM THE DATE OF RECEIPT OF THE ORDER. HOWEVER, TH E ASSESSEE FILED THE APPEAL ON 8.7.2013 AND THERE WAS A DELAY OF 73 DAYS IN FILING THE APPEAL. THE ASSESSEE FILED CONDONATION PETITION DATED 5.7.2013 ALONG WITH MEDICAL CERTIFICATE FROM ONE DR . K.T.R.SWAMY DATED 22.6.2013 STATING THAT THE ASSESS EE WAS UNDER TREATMENT BETWEEN 1.12.2012 TO 22.12.2013. H OWEVER, THE COMMISSIONER OF INCOME-TAX(APPEALS) HAS NOT CON DONED THE DELAY ON THE REASON THAT THOUGH THE ASSESSEE WAS UN DER TREATMENT AT HYDERABAD AS PER THE CERTIFICATE OF TH E DOCTOR, THE ASSESSEE STATED IN THE PETITION FOR CONDONATION THA T HE RECEIVED THE ORDER AND DEMAND NOTICE IN PERSON FOR THE ASSES SMENT YEAR 2010-11 ON 29.3.2013, WHICH IS CONTRADICTORY TO THE STATEMENT GIVEN IN THE MEDICAL CERTIFICATE. AGAINST THIS, TH E ASSESSEE IS IN APPEAL BEFORE US. - - ITA 1258/15 3 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. WE HAVE GONE THROUGH THE CONDO NATION PETITION FILED BY THE ASSESSEE. IT IS NOTICED THAT THE ASSESSEE WAS UNDER MEDICAL TREATMENT AT HYDERABAD DURING THE PERIOD ON 1.12.2012 TO 22.12.2013, WHICH WAS DUE TO MENTAL DEPRESSION. IT WAS ALSO BROUGHT TO O UR NOTICE THAT THERE WAS AN ORDER U/S.263 OF THE ACT BY THE C IT FOR THE ASSESSMENT YEAR 2009-10, AGAINST WHICH, THE ASSESSE E WENT IN APPEAL BEFORE THE TRIBUNAL AND THERE WAS A DELAY OF 220 DAYS. BEFORE THE TRIBUNAL, THE ASSESSEE STATED THE SAME REASON FOR DELAY THAT WAS FAVOURABLY CONSIDERE D BY THE TRIBUNAL IN ITA NO.1503/MDS/2013 DATED 17.3.201 4. IN OUR OPINION, THE REASON ADVANCED BY THE ASSESSEE IS GOOD AND SUFFICIENT TO CONDONE THE DELAY. WHILE CONSIDE RING THE REASONS FOR CONDONING THE DELAY, ADVANCEMENT OF SUBSTANTIAL JUSTICE AND TECHNICAL DEFECT IS TO BE I GNORED. IN THIS CASE, THE ASSESSEE FAILED TO FILE THE APPEAL W ITHIN THE PERIOD OF LIMITATION. THOUGH THE LD. DR OBJECTED TH E CONDONATION OF DELAY, IT HAS NOT FILED ANY COUNTER- AFFIDAVIT TO DENY THE AVERMENT MADE BY THE ASSES SEE. WHILE - - ITA 1258/15 4 CONSIDERING THE CONDONATION OF DELAY, THE APEX COUR T IN THE CASE OF COLLECTOR LAND ACQUISITION V. MST. KATIGI ( 167 ITR 471), HAS OBSERVED AS UNDER: (1). ORDINARILY, A LITIGANT DOES NOT STAND TO BENEF IT BY LODGING AN APPEAL LATE. (2). REFUSING TO CONDONE DELAY CAN RESULT IN A MERITORIOUS MATTER BEING THROWN OUT AT THE VERY THR ESHOLD AND CAUSE OF JUSTICE BEINGDEFEATED. AS AGAINST THIS , WHEN DELAY IS CONDONED, THE HIGHEST THAT CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERITS AFTER HEARI NG THE PARTIES. (3). EVERY DAY'S DELAY MUST BE EXPLAINED DOES NOT MEAN THAT PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOUR'S DELAY, EVERY SECOND'S DELAY? THE DOCTR INE MUST BE APPLIED IN A RATIONAL, COMMON SENSE AND PRAGMATIC MANNER. (4). WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS ARE PITTED AGAINST EACH OTHER, THE C AUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED, FO R THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJ USTICE BEING DONE BECAUSE OF A NON-DELIBERATE DELAY. (5). THERE IS NO PRESUMPTION THAT DELAY IS OCCASION ED 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 SERIOUS RIS K. (6). IT MUST BE GRASPED THAT THE JUDICIARY IS RESPE CTED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TE CHNICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUS TICE AND IS EXPECTED TO DO SO. - - ITA 1258/15 5 5. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERA TION ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTAN TIAL JUSTICE DESERVES TO BE PREFERRED, FOR THE OTHER SID E CANNOT CLAIM TO HAVE VESTED RIGHT FOR INJUSTICE BEING DONE BECAUSE OF NON-DELIBERATE DELAY. IN THE CASE IN OUR HAND, THERE IS NO COUNTER-AFFIDAVIT FILED BY THE REVENUE. IT IS NOT THE CASE OF THE REVENUE THAT THE APPEAL WAS NOT FILED DELIBERAT ELY. THEREFORE, WE HAVE TO PREFER SUBSTANTIAL JUSTICE RA THER THAN TECHNICALITY IN DECIDING THE ISSUE. AS OBSERVED BY THE APEX COURT, IF THE APPLICATION OF THE ASSESSEE FOR CONDO NING THE DELAY IS REJECTED, IT WOULD AMOUNT TO LEGALISE INJU STICE ON TECHNICAL GROUND WHEN THE TRIBUNAL IS CAPABLE OF RE MOVING INJUSTICE AND TO DO JUSTICE. THEREFORE, THIS TRIBU NAL IS BOUND TO REMOVE THE INJUSTICE BY CONDONING THE DELAY ON TECHNICALITIES. IF THE DELAY IS NOT CONDONED, IT W OULD AMOUNT TO LEGALISING AN ILLEGAL ORDER, WHICH WOULD RESULT IN UNJUST ENRICHMENT ON THE PART OF THE STATE BY RETAINING TH E TAX RELATABLE THERETO. THEREFORE, IN OUR OPINION, BY P REFERRING THE SUBSTANTIAL JUSTICE, THE DELAY OF 73 DAYS IS CO NDONED AND ACCORDINGLY, THE CIT(APPEALS) IS DIRECTED TO AD MIT THE - - ITA 1258/15 6 APPEAL AND DECIDE THE ISSUES RAISED BY THE ASSESSEE ON MERIT. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED ON FRIDAY, THE 7 TH OF AUGUST, 2015 AT CHENNAI. SD/- SD/- ( $ . . $ . %& ) ( ' ( ) * ) N.R.S.GANESAN + ,-./01.2334.15+ 6 78 /JUDICIAL MEMBER ! 789::3;/<./<=>?@>1 '6 /CHENNAI, A7 /DATED, THE 07 TH AUGUST, 2015. MPO* 7& BCDC /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. E+ /CIT(A) 4. E /CIT 5. CF% G /DR 6. %HI /GF.