SHRI RAMANLAL JAIN, CHENNAI V. DCIT, NCC - 6 (2), CHENNAI

ITA 1331/CHNY/2019

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 7332 (ITAT-CHENNAI)
• Duration Of Justice: 3 year(s) 4 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 01-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reasonable cause; Condonation of delay; TDS
• Section: 143(3); 40(a)(ia)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “C/SMC-II” BENCH, CHENNAI माननीय ी मनोज कु मार अ#वाल ,लेखा सद* के सम+। HON’BLE SHRI MANOJ KUMAR AGGARWAL, AM आयकर अपील सं./ ITA No.1331/Chny/2019 (िनधा4रण वष4 / Assessment Year: 2008-09) Shri Ramanlal Jain M/. Nakoda Exports, No. 77, First Floor, Gold Square Sowcarpet, Chennai – 600 079. बनाम/ V s . DCIT Non Corporate Circle -6(2), Chennai. थायी लेखा सं. /जीआइ आर सं. /P AN / G I R No . AAJ P R- 3 4 3 9 - B (अपीलाथ /Appellant) : ( थ / Respondent) अपीलाथ की ओरसे/ Appellant by : Shri N. Arjunraj (CA) for S. Sridhar (Advocate) – Ld. AR थ की ओरसे/Respondent by : Shri D. Hema Bhupal (JCIT) – Ld. DR सुनवाई की तारीख/ Date of Hearing : 14-09-2022 घोषणा की तारीख / Date of Pronouncement : 14-09-2022 आदेश / O R D E R Manoj Kumar Aggarwal (Accountant Member) 1. Aforesaid appeal by assessee for Assessment Year (AY) 2008-09 arises out of the order of learned Commissioner of Income Tax (Appeals)-5, Chennai dated 13.03.2018 in the matter of an assessment framed by Ld. Assessing Officer [AO] u/s. 143(3) of the Act on 12.04.2010. Upon perusal of impugned order, it could be seen that the appeal of the assessee has been dismissed for want of condonation of ITA No.1331/Chny/2019 - 2 - inordinate delay of 2470 days. In the assessment order, Ld. AO has made disallowance of Rs.10.30 Lacs u/s 40(a)(ia) for want of Tax deduction at source (TDS) on interest payment. The assessee being resident individual is stated to be engaged in manufacturing of gold jewellery. Before me, Ld. AR seek shelter of second proviso to Sec.40(a)(ia) and has filed petition under Rule 29 of Income Tax (Appellate Tribunal) Rules, 1963 and placed on record return of income and Form no. 26A of the payees. 2. The registry has noted certain delay in the appeal, the condonation of which has been sought by the assessee on the strength of affidavit of the assessee. As per Form 36, the date of receipt of impugned order is stated to be 13.03.2018 and accordingly, the appeal ought to have been filed within 60 days i.e., by 12.05.2018. However, the appeal has been filed only on 02.05.2019 and therefore, there is delay of little less than one year in the appeal. In the affidavit, it has been submitted by the assessee that the impugned order was misplaced and could not be traced. The assessee’s Chartered Accountant, upon review of Income Tax issues during April, 2019, brought this fact to light and steps were taken to file the appeal immediately. It has been submitted that there was bona-fide mistake and reasonable cause in not preferring the appeal in time. The Ld. DR pleaded for dismissal of the appeal in limine and submitted that even before Ld. CIT(A), there was inordinate delay and accordingly, the appeal was not admitted. Having heard rival submission, I proceed to dispose-off the appeal as under. 3. It is beyond doubt that the assessee has remained negligent in filing the appeal before Tribunal as well as before first appellate authority. However, considering the fact that the assessee is a small ITA No.1331/Chny/2019 - 3 - trader and keeping in view the ratio of various judicial precedents, the delay before me as well as before Ld. CIT(A) deserve to be condoned. 4. The Hon’ble Hon’ble Supreme Court in the case of N. Balakrishnan v. M. Krishnamurthy (7 SCC 123) as under: - “11. Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. the object of providing 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 redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy 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 put 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. 12. A Court knows that refusal to condone delay would result in 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 ‘sufficient cause’ under section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]. 13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. 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 fides 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 reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance 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 when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss.” 5. Similar is the guiding principles laid down by Hon’ble Supreme Court in Collector, Land Acquisition v. Mst. Katiji & Ors. (167 ITR 471) as under: - “It is common knowledge that 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 ITA No.1331/Chny/2019 - 4 - to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realised that: 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. ‘Every day’s delay must be explained’ does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s delay? The doctrine must be applied in a rational, common sense and pragmatic manner. 4. When substantial justice and technical considerations 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-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 6. Similar is the ratio of decision of Hon’ble Bombay High Court in the case of Vijay Vishin Meghani v. DCIT (ITXAL 493 of 2015 dated 19/09/2017) wherein the Hon’ble Bombay High Court, while adjudicating the issue of condonation of delay of 2984 days and dealing with the principles of condoning the delay, observed as under: “19. Way back in the year 1979, in a decision reported in AIR 1979 SC 1666 {M/s. Concord of India Insurance Co. Ltd. Vs. Smt. Nirmala Devi and others}, the Hon'ble Supreme Court has held that a legal advice tendered by a professional and the litigant acting upon it one way or the other could be a sufficient cause to seek condonation of delay and coupled with the other circumstances and factors for applying liberal principles and then said delay can be condoned. Eventually, an overall view in the larger interest of justice has to be taken. None should be deprived of an adjudication on merits unless the Court of law or the Tribunal/Appellate Authority finds that the litigant has deliberately and intentionally delayed filing of the appeal, that he is careless, negligent and his conduct is lacking in bona fides. These are, therefore, some of the relevant factors. Those factors should therefore necessarily go into an adjudication of the present nature.” ITA No.1331/Chny/2019 - 5 - 7. Considering the guiding principles as laid down by higher courts, I condone the delay. However, this concession would come at a cost of Rs.10,000/-. The assessee is directed to deposit the same within one month from the date of receipt of this order to Tamil Nadu State Legal Services Authority at Hon’ble High Court of Madras. The receipt / proof shall be furnished to the Ld. Assessing Officer before proceeding further. 8. The assessee has filed additional evidences to take shelter of second proviso to Sec.40(a)(ia) and placed on record the requisite documents. Finding strength in assessee’s claim, I restore the matter back to the file of Ld. AO for verification of assessee’s claim and if the claim is found in order, Ld. AO is directed to grant the benefit of these provisions which have been held to be curative in nature and to have retrospective operation. 9. The appeal stand partly allowed for statistical. Order pronounced on 14 th September, 2022. Sd/- (MANOJ KUMAR AGGARWAL) लेखा सद* / ACCOUNTANT MEMBER चे+ई / Chennai; िदनांक / Dated : 14-09-2022 JPV JPVJPV JPV आदेश की Jितिलिप अ#ेिषत/Copy of the Order forwarded to : 1. अपीलाथ /Appellant 2. यथ /Respondent 3. आयकर आयु (अपील)/CIT(A) 4. आयकर आयु /CIT 5. िवभागीय ितिनिध/DR 6. गाड फाईल/GF