M/s. Pawan S. Jalan, Ahmedabad V. The Dy. CIT, Circle-5(3)., Ahmedabad

ITA 1567/AHD/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5540 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 7 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 23-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K DEV

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ITA NO.1567/AHD/2017 / ASSTT. YEAR: 2013-14 SHRI PAWAN S. JALAN 275, NEW CLOTH MARKET O/S. RAIPUR GATE, RAIPUR AHMEDABAD 380 002. PAN : AAVPJ 9612 Q VS. ACIT, CIR.5(3) AHMEDABAD. ( APPLICANT ) ( RESPONENT ) ASSESSEE BY : SHRI CHETAN AGRAWAL, AR REVENUE BY : SHRI S.K. DEV, SR.DR / DATE OF HEARING : 31/01/2019 / DATE OF PRONOUNCEMENT: 01/02/2019 +,/ 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 29.5.2017 PASSED FOR T HE ASSTT.YEAR 2013-14. 2. THOUGH THE ASSESSEE HAS TAKEN FIVE GROUNDS OF AP PEAL, BUT IN THE PRELIMINARY GROUNDS OF APPEAL, HE HAS PLEADED THAT HIS APPEAL WAS DISMISSED BY THE LD.CIT(A) ON ACCOUNT THAT IT BARRED BY LIMIT ATION. IN OTHER WORDS, THE LD.CIT(A) HAS NOT DECIDED THE APPEAL ON MERIT, RATH ER DISMISSED ON THE GROUND THAT IT WAS FILED AFTER EXPIRY OF LIMITATION. THE FINDING RECORDED BY THE LD.CIT(A) READS AS UNDER: 4.1. THE APPEAL IS FILED LATE BY 136 DAYS. NO VALI D REASON WAS SHOWN BY THE APPELLANT FOR THE DELAY OF 186 DAYS, DELAY I N FILING THE APPEAL ITA NO.1567/AHD/2017 2 CAN BE CONDOLED IF THERE IS A REASONABLE AND SUFFIC IENT CAUSE WHICH PREVENTED THE ASSESSES TO FILE THE APPEAL WITHIN TH E STIPULATED TIME. IN THE INSTANT CASE, THE APPELLANT FAILED TO SHOW ANY SUFFICIENT REASON WHICH HAS PREVENTED IT TO FILE THE APPEAL WITHIN ST IPULATED TIME. 4.2. THE APPELLANT HAS TAKEN THE PLEA FOR THE DELAY ON THE ABOVE REASON IS NOT VERIFIABLE FROM THE RECORDS IN ABSENCE OF AN Y EVIDENCES SUBMITTED ALONGWITH THE APPEAL AND DURING APPELLATE PROCEEDIN GS. THEREFORE, THE DELAY MADE IN FILING THE APPEAL DOES NOT DESERVE TO BE CONDONED AND HENCE APPELLANT'S REQUEST FOR CONDONATION IS NOT EN TERTAINED AND REJECTED. 3. THE LD.COUNSEL FOR THE ASSESSEE HAS FILED AN AFF IDAVIT OF SHRI PAWAN R. SHARMA DEPOSING THEREIN HOW THE DELAY HAS OCCURRED IN FILING THE APPEAL BEFORE THE LD.CIT(A). THE AFFIDAVIT READS AS UNDER : I, PAWAN RAMNIWAS SHARMA, ADULT RESIDING AT 80, NU TAN CLOTH MARKET, OPP. RAIPUR GATE, RAIPUR, AHMEDABAD - 380 0 02 STATE ON SOLEMN AFFIRM AS UNDER:- THAT THE AO ORDER OF CIRCLE 5 (3) FOR A. Y. 2013-14 DATED 21.10.2015 IN CASE OF MY EMPLOYER PAWAN S.JALAN WAS RECEIVED B Y ME AT OUR BUSINESS PREMISES. I AM A CHIEF ACCOUNTANT AND WAS NOT AWARE OF ANY PROCEEDINGS GOING ON BEFORE THE INCOME TAX DEPARTME NT. THROUGH OVERSIGHT DUE TO MY BUSY OCCUPATION WITH OFFICE WOR K, I FORGOT TO GIVE THE NOTICE TO PAWAN S. JALAN OR OUR CHARTERED ACCOU NTANT. I HANDED OVER THE NOTICE TO HIM. ON 01.04.2016 FIND SAME DUR ING CLEANING OF MY CUPBOARD. I HAVE BEEN INFORMED THAT DUE TO MY HON'BLECIT(A ) HAS DISMISSED THE APPEALS. THAT WHAT HAS BEEN STATED ABOVE IS THE FACT AND TRU E TO MY KNOWLEDGE. 4. HE PRAYED THAT DELAY BE CONDONED IN FILING APPEA L BEFORE THE LD.CIT(A) AND MATTER BE REMITTED TO THE LD.CIT(A) FOR ADJUDIC ATION ON MERIT. THE LD.DR ON THE OTHER CONTENDED THAT THE ASSESSEE FAILED TO GIVE ANY PLAUSIBLE REASON BEFORE THE LD.CIT(A), AND THEREFORE, LD.CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE. ITA NO.1567/AHD/2017 3 5. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GONE THROUGH THE RECORD CAREFULLY. SUB-SECTION 5 OF SECTION 253 OF T HE 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 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. ITA NO.1567/AHD/2017 4 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.1 6. IN THE LIGHT OF THE ABOVE, IF WE CONSIDER THE EX PLANATION OF THE ASSESSEE FILED BEFORE THE LD.CIT(A), WHICH HAS BEEN PARTLY R EPRODUCED IN THE ORDER OF THE LD.CIT(A) ON PAGE NO.3, THEN IT WOULD REVEAL TH AT CHIEF ACCOUNTANT OF THE COMPANY WAS ILL AND FAILED TO HAND OVER ASSESSMENT ORDER TO THE TAX CONSULTANT FOR FILING APPEAL. TO OUR MIND, THERE I S NO MALA FIDE IN THIS EXPLANATION. THE DELAY HAD OCCURRED ON ACCOUNT OF BONA FIDE MISTAKE AT THE END OF THE CHIEF ACCOUNTANT. BY MAKING DELAY IN FI LING APPEAL BEFORE THE LD.CIT(A) THE ASSESSEE WOULD NOT ACHIEVE ANYTHING. THUS, IT CANNOT BE ADOPTED AS A STRATEGY. IT COULD ONLY BE A RESULT O UT OF BONA FIDE MISTAKE. WE CONDONE THE DELAY, AND SET ASIDE THE ORDER OF THE L D.CIT(A). WE REMIT ALL OTHER ISSUES TO THE FILE OF THE LD.CIT(A) FOR ADJUD ICATION ON MERIT. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 1 ST FEBRUARY, 2019 AT AHMEDABAD. S D / - (AMARJIT SINGH) ACCOUNTANT MEMBER S D / - (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 01/02/2019