SHRI RAKESH AGGARWAL, JALANDHAR V. INCOME TAX OFFICER WARD-III(3), JALANDHAR

ITA 157/ASR/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3274 (ITAT-AMRITSAR)
• Duration Of Justice: 10 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 12-02-2019
• Assessment Year: 2010-2011
• Appeal Filed On: 23-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHAWANI SHANKAR
• Keywords: Principle of natural justice; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBU NAL AMRITSAR BENCH, AMRITSAR BEFORE SH. N.S.SAINI, ACCOUNTANT MEMBER AND SH. N.K.CHOUDHRY, JUDICIAL MEMBER ITA NO.157(ASR)/2018 ASSESSMENT YEAR:201 0-11 RAKESH AGGARWAL, EF-490, KRISHAN NAGAR, JALANDHAR. [PAN:ABIPA 4888K] VS. INCOME TAX OFFICER, WARD-III(3), JALANDHAR (APPELLANT) (RESPONDENT) APPELLANT BY: SH. RAHUL GUPTA (LD. CA) RESPONDENT BY: SH. BHAWAN I SHANKAR (LD. DR) DATE OF HEARING : 12.02.2019 DATE OF PRONOUNCEMENT: 13.02.2019 ORDER PER N.K.CHOUDHRY, JM: THE ASSESSEE HAS CHALLENGED THE ORDER DATED 14.08.2017 PASSED BY THE LD. CIT(A)-2, JALANDHAR, WHEREBY, THE L D. CIT(A) UPHELD THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U /S 143(3)/263 OF THE INCOME TAX ACT,1961 (HEREINAFTER CAL LED AS THE ACT). 2. AT THE OUTSET, IT IS OBSERVED THAT THERE IS A DELAY OF 130 DAYS IN FILING OF THE INSTANT APPEAL, IN RESPONSE TO WH ICH THE ASSESSEE HAS SUBMITTED AS APPEARS FROM THE REVENUE ACKNOWLEDGEMENT, THE ORDER UNDER CHALLENGE WAS SERVED ON DATED 14.08.2017 TO THE ERSTWHILE AR OF THE ASSESSEE, WH O MAY HAVE RECEIVED THE ORDER BUT HE NEVER COMMUNICATED THE SAID ORDER TO THE ASSESSEE THEREFORE THE ORDER WAS NEVER SER VED UPON THE ASSEEEE. DURING THE ANOTHER REVENUE PROCEEDING, TH E ASSESSEE CAME TO KNOW ABOUT THE PASSING OF THE IMPUGNED OR DER ITA NO.157 /ASR/2018 (A.Y.2010-11) RAKESH AGGARWAL VS. ITO 2 AND IMMEDIATELY THE ASSESSEE CONTACTED HIS ERSTWHILE LD. A R, WHO HANDED OVER THE ORDER ONLY ON 31 ST JANUARY, 2018 AND THEREAFTER, THE ASSESSEE TRIED TO COLLECT THE RELEVANT DO CUMENTS FOR FILLING THE APPEAL AND FINALLY ON 23 RD MARCH, 2018 THE INSTANT APPEAL WAS FILED. IT IS A FACT THAT THE ASSESSEE HAD RECEIV ED THE COPY OF THE IMPUGNED ORDER ONLY ON 31 ST JANUARY, 2018 AND THE APPEAL WAS FILED ON 23.03.2018 WHICH IS UNDISPUTEDLY WITHIN 60 DAYS AS PRESCRIBED UNDER THE LAW, HOWEVER AS PER REGISTRY THERE IS A DELAY OF 130 DAYS WHICH HAS BEEN CLAIMED BY THE ASSE SSEE BEING BONAFIDE AND UNINTENTIONAL. 3. ON THE CONTRARY, THE LD. DR RAISED THE OBJECTION AND SUBMITTED THAT THE ORDER WAS DULY SERVED ON DATED 14/0 8/2017 UPON THE ASSESSEE THROUGH ITS AUTHORIZED REPRESENTATIVE AND THAT SERVICE CANNOT BE DISCARDED AND DEEMED TO BE SERVICE UPON THE ASSESSEE. 4. HAVING HEARD THE PARTIES QUA ISSUE OF LIMITATION . THE LAW IS WELL SETTLED BY THE HIGHER COURTS THAT WHILE DEALING W ITH THE APPLICATION FOR CONDONATION OF DELAY, THE COURT IS TO SEE THE CONDUCT OF THE PARTY AND PLAUSIBLE REASONING FOR NON-FI LING OF THE STATUTORY APPEAL WITHIN TIME. THE PRIMARY FUNCTION OF A COURT IS TO ADJUDICATE THE DISPUTE BETWEEN THE PARTIES AND TO ADVANCE SUBSTANTIAL JUSTICE. THE APEX COURT IN THE CASE OF STATE OF BIHAR & ORS. VS. KAMESHWAR PRASAD SINGH & ANR.[1], HAS HELD TH AT POWER TO CONDONE THE DELAY IN APPROACHING THE COURT H AS BEEN CONFERRED UPON THE COURTS TO ENABLE THEM TO DO SUBSTANT IAL JUSTICE TO PARTIES BY DISPOSING THE CASES ON MERIT. 4.1. THE APEX COURT IN COLLECTOR, LAND ACQUISITION, ANANTN AG V. MST. KATIJI (1987) I LLJ 500 SC, ANALYZED THE PROVISI ONS OF LAW QUA LIMITATION ACT AND HELD THAT THE EXPRESSION 'SUFFI CIENT CAUSE' EMPLOYED BY THE LEGISLATURE IN THE LIMITATION ACT IS ADEQUATELY ITA NO.157 /ASR/2018 (A.Y.2010-11) RAKESH AGGARWAL VS. ITO 3 ELASTIC TO ENABLE THE COURTS TO APPLY THE LAW IN A MEA NINGFUL MANNER WHICH SUB-SERVES THE ENDS OF JUSTICE-THAT BEING THE LIFE PURPOSE FOR THE EXISTENCE OF THE INSTITUTION OF COURTS. IT WAS FURTHER OBSERVED THAT A LIBERAL APPROACH IS REQUIRED TO BE 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 MERITO RIOUS MATTER BEING THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTICE BEING DE FEATED. AS AGAINST THIS WHEN DELAY IS CONDONED THE HIGHEST THAT CAN HAPPEN IS TH AT A CAUSE WOULD BE DECIDED ON MERITS 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 HOUR'S DELAY, EVERY S ECOND'S DELAY? THE DOCTRINE MUST BE APPLIED IN A RATIONAL COMMON SENSE PRAGMATI C MANNER. 4. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERA TIONS 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 BEIN G 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 MALA FIDES. A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY. IN FACT HE RUNS A SE RIOUS RISK. 6. IT MUST BE GRASPED THAT JUDICIARY IS RESPECTED NOT ON ACCOUNT OF ITS P OWER TO LEGALIZE INJUSTICE ON TECHNICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMO VING INJUSTICE AND IS EXPECTED TO DO SO. XXX XXX XXX 4.2 APEX COURT IN THE CASE OF STATE OF HARYANA V. CHANDRA MANI 2002(143) ELT 249(SC) HAS HELD; '.....THE EXPRESSION 'SUFFICIENT CAUSE' SHOULD, THE REFORE, BE CONSIDERED WITH PRAGMATISM IN JUSTICE-ORIENTED PROCESS APPROACH RAT HER THAN THE TECHNICAL DETENTION OF SUFFICIENT CASE FOR EXPLAINING EVERY D AY'S DELAY. THE FACTORS WHICH ARE PECULIAR TO AND CHARACTERISTIC OF THE FUNCTIONING O F PRAGMATIC APPROACH INJUSTICE ORIENTED PROCESS. THE COURT SHOULD DECIDE THE MATTE RS ON MERITS UNLESS THE CASE IS HOPELESSLY WITHOUT MERIT. NO SEPARATE STANDARDS TO DETERMINE THE CAUSE LAID BY THE STATE VIS-A-VIS PRIVATE LITIGANT COULD BE LAID TO PROVE STRICT STANDARDS OF SUFFICIENT CAUSE. THE GOVERNMENT AT APPROPRIATE LEV EL SHOULD CONSTITUTE LEGAL CELLS TO EXAMINE THE CASES WHETHER ANY LEGAL PRINCIPLES A RE INVOLVED FOR DECISION BY THE COURTS OR WHETHER CASES REQUIRE ADJUSTMENT AND SHOU LD AUTHORIZE THE OFFICERS TO TAKE A DECISION TO GIVE APPROPRIATE PERMISSION FOR SETTLEMENT. IN THE EVENT OF DECISION TO FILE THE APPEAL NEEDED PROMPT ACTION SH OULD BE PURSUED BY THE OFFICER RESPONSIBLE TO FILE THE APPEAL AND HE SHOULD BE MAD E PERSONALLY RESPONSIBLE FOR ITA NO.157 /ASR/2018 (A.Y.2010-11) RAKESH AGGARWAL VS. ITO 4 LAPSES, IF ANY. EQUALLY, THE STATE CANNOT BE PUT ON THE SAME FOOTING AS AN INDIVIDUAL. THE INDIVIDUAL WOULD ALWAYS BE QUICK IN TAKING THE DECISION WHETHER HE WOULD PURSUE THE REMEDY BY WAY OF AN APPEAL OR APPL ICATION SINCE HE IS A PERSON LEGALLY INJURED WHILE STATE IS AN IMPERSONAL MACHIN ERY WORKING THROUGH ITS OFFICERS OR SERVANTS.' 4.3 THE APEX COURT IN N. BALAKRISHNAN VS. M. KRISHNAMURT HY 2008(228) ELT 162(SC), THE APEX COURT, WHILE CONDONI NG THE DELAY OF 883 DAYS IN FILING AN APPLICATION FOR SETTIN G ASIDE THE EX PARTE DECREE HELD AS UNDER: 'THAT THE PURPOSE OF LIMITATION ACT WAS NOT TO DESTROY THE RIGHTS. IT IS FOUNDED ON PUBLIC POLICY FIXING A LIFE SPAN FOR THE LEGAL REMEDY FOR THE GENERAL WELFARE. THE PRIMARY FUNCTION OF A COURT IS TO ADJU DICATE DISPUTES BETWEEN THE PARTIES AND TO ADVANCE SUBSTANTIAL JUSTICE. THE TIM E LIMIT FIXED FOR APPROACHING THE COURT IN DIFFERENT SITUATIONS IS NOT BECAUSE ON THE EXPIRY OF SUCH TIME A BAD CAUSE WOULD TRANSFORM INTO A GOOD CAUSE. THE OBJECT OF PR OVIDING LEGAL REMEDY IS TO REPAIR THE DAMAGE CAUSED BY REASON OF LEGAL INJURY. IF THE EXPLANATION GIVEN DOES NOT SMACK MALA FIDES OR IS NOT SHOWN TO HAVE BEEN P UT FORTH AS A PART OF A DILATORY STRATEGY, THE COURT MUST SHOW UTMOST CONSIDERATION TO THE SUITOR.' IT IS AXIOMATIC THAT CONDONATION OF DELAY IS A MATT ER OF DISCRETION OF THE COURT. SECTION 5 OF THE LIMITATION ACT DOES NOT SAY THAT SUCH DISCRETION CAN BE EXERCISED ONLY IF THE DELAY IS WITHIN A CERTAIN LIM IT. LENGTH OF DELAY IS NO MATTER, ACCEPTABILITY OF THE EXPLANATION IS THE ONLY CRITER ION. SOMETIMES DELAY OF THE SHORTEST RANGE MAY BE UNCONTAINABLE DUE TO A WANT O F ACCEPTABLE EXPLANATION WHEREAS IN CERTAIN OTHER CASES, DELAY OF A VERY LON G RANGE CAN BE CONDONED AS THE EXPLANATION THEREOF IS SATISFACTORY. ONCE THE C OURT ACCEPTS THE EXPLANATION AS SUFFICIENT, IT IS THE RESULT OF POSITIVE EXERCISE O F DISCRETION AND NORMALLY THE SUPERIOR COURT SHOULD NOT DISTURB SUCH FINDING, MUCH LESS IN REVISIONAL JURISDICTION, UNLESS THE EXERCISE OF DISCRETION WAS ON WHOLLY UNTENABLE GROUNDS OR ARBITRARY OR PERVERSE. BUT IT IS A DIFFERENT MATTER WHEN THE FIR ST COURT REFUSES TO CONDONE THE DELAY. IN SUCH CASES, THE SUPERIOR COURT WOULD BE F REE TO CONSIDER THE CAUSE SHOWN FOR THE DELAY AFRESH AND IT IS OPEN TO SUCH S UPERIOR COURT TO COME TO ITS OWN FINDING EVEN UNTRAMMELLED BY THE CONCLUSION OF THE LOWER COURT.' A COURT KNOWS THAT REFUSAL TO CONDONE DELAY WOULD R ESULT FORECLOSING A SUITOR FROM PUTTING FORTH HIS CAUSE. THERE IS NO PR ESUMPTION THAT DELAY IN APPROACHING THE COURT IS ALWAYS DELIBERATE. THE WOR DS 'SUFFICIENT CAUSE' ITA NO.157 /ASR/2018 (A.Y.2010-11) RAKESH AGGARWAL VS. ITO 5 UNDER SECTION 5 OF THE LIMITATION ACT SHOULD RECEIV E A LIBERAL CONSTRUCTION SO AS TO ADVANCE SUBSTANTIAL JUSTICE VIDE SHAKUNTALA DEVI JA IN VS. KUNTAL KUMARI [AIR 1969 SC 575] AND STATE OF WEST BENGAL VS. THE ADMIN ISTRATOR, HOWRAH MUNICIPALITY [AIR 1972 SC 749]. IT MUST BE REMEMBER ED THAT IN EVERY CASE OF DELAY THERE CAN BE SOME LAPSE ON THE PART OF THE LI TIGANT CONCERNED. THAT ALONE IS NOT ENOUGH TO TURN DOWN HIS PLEA AND TO SHUT THE DO OR AGAINST HIM. IF THE EXPLANATION DOES NOT SMACK OF MALA FIDES OR IT IS N OT PUT FORTH AS PART OF A DILATORY STRATEGY THE COURT MUST SHOW UTMOST CONSIDERATION T O THE SUITOR. BUT WHEN THERE IS REASONABLE GROUND TO THINK THAT THE DELAY WAS OCCAS IONED BY THE PARTY DELIBERATELY TO GAIN TIME THEN THE COURT SHOULD LEAN AGAINST ACC EPTANCE OF THE EXPLANATION. WHILE CONDONING DELAY THE COULD SHOULD NOT FORGET T HE OPPOSITE PARTY ALTOGETHER. IT MUST BE BORNE IN MIND THAT HE IS A LOOSER AND HE TO O WOULD HAVE INCURRED QUIET A LARGE LITIGATION EXPENSES. IT WOULD BE A SALUTARY G UIDELINE 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. 4.4 THE APEX COURT IN THE CASE NAND KISHORE V. STATE O F PUNJAB (1995) 6 SCC 614, UNDER THE PECULIAR CIRCUMSTANCES OF THE CASE CONDONED THE DELAY OF ABOUT 31 YEARS, IN APPROACHIN G THE APEX COURT. IT MUST BE REMEMBERED THAT IN EVERY CASE OF DELAY THERE CAN BE SOME LAPSE OF THE LITIGANT CONCERNED. THAT ALONE IS NOT ENOUGH TO TURN DOWN THE PLEAS AND TO SHUT THE DOORS AGAINST H IM. IF EXPLANATION DOES NOT SMACK MALA FIDE OR DOES NOT PU T FORTH AS A DILATORY STRATEGY, THE COURT MUST SHOW UTMOST CONSI DERATION OF SUCH LITIGANT. THE APEX COURT IN THE CASE OF N. BALAKRIS HNAN (SUPRA), CLEARLY HELD THAT THE LENGTH OF DELAY IS IMMATERIAL , IT IS THE ACCEPTABILITY OF THE EXPLANATION AND THAT IS THE ON LY CRITERIA FOR CONDONING THE DELAY. THE PERIOD OF DELAY IS NOT REL EVANT FOR CONSIDERING THE APPLICATION FOR CONDONATION OF DELA Y. WHAT IS REQUIRED TO BE SEEN IS AS TO WHETHER A PARTY SEEKIN G CONDONATION OF DELAY HAS MADE OUT A SUFFICIENT CAUSE OR NOT. REFUSING TO CONDONE THE 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 PARTIE S. IT MUST BE ITA NO.157 /ASR/2018 (A.Y.2010-11) RAKESH AGGARWAL VS. ITO 6 GRASPED THAT JUDICIARY IS RESPECTED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. THE EX PRESSION 'SUFFICIENT CAUSE' SHOULD BE CONSIDERED WITH PRAGMA TISM IN JUSTICE- ORIENTED PROCESS APPROACH RATHER THAN THE TECHNICAL DETENTION OF SUFFICIENT CASE FOR EXPLAINING EVERY DAY'S DELAY. T HE FACTORS WHICH ARE PECULIAR TO AND CHARACTERISTIC OF THE FUNCTIONI NG OF PRAGMATIC APPROACH INJUSTICE ORIENTED PROCESS. IT IS FOUNDED ON PUBLIC POLICY FIXING A LIFE SPAN FOR THE LEGAL REMEDY FOR THE GEN ERAL WELFARE. A COURT KNOWS THAT REFUSAL TO CONDONE DELAY WOULD RESULT FO RECLOSING A SUITOR FROM PUTTING FORTH HIS CAUSE. THERE IS NO PR ESUMPTION THAT DELAYS IN APPROACHING THE COURT IS ALWAYS DELIBERAT E. THE WORDS 'SUFFICIENT CAUSE' UNDER SECTION 5 OF THE LIMITATIO N ACT SHOULD RECEIVE A LIBERAL CONSTRUCTION SO AS TO ADVANCE SUBSTANTIAL JUSTICE. 4.5 LET US TO CONSIDER THE RELEVANT PROVISION OF LAW AS PRESCRIBED U/S 253 (3) OF THE ACT, WHICH PRESCRIBE EVERY APPEAL UNDER SUB-SECTION (1) OR SUB-SECTION (2) SHALL BE FILED WI THIN 60 DAYS OF THE DATE ON WHICH THE ORDER SOUGHT TO BE APPEA LED AGAINST IS COMMUNICATED TO THE ASSESSEE OR TO THE COMMISSIONER , AS THE CASE MAY BE. SECTION 253(5) FURTHER PRESCRIBE THAT THE APPELLATE TRIBUNAL MAY ADMIT AN AP PEAL OR PERMIT THE FILING OF A MEMORANDUM OF CROSS- OBJECTIONS AFTER THE EXPIRY OF THE RELEVANT PERIOD REFERRED TO IN SUB- SECT ION (3) OR SUB- SECTION (4), IF IT IS SATISFIED THAT THERE WAS SUFFICIENT CAUSE FOR NOT PRESENTING IT WITHIN THAT PERIOD. MANDATE OF THE PROVISION IS VERY MUCH CLEAR THAT THE APPEAL CAN BE FILED WITHIN 60 DAYS OF THE DATE, ON WH ICH THE ORDER SOUGHT TO BE APPEALED AGAINST IS COMMUNICATED TO THE ASSESSEE OR TO THE COMMISSIONER , AS THE CASE MAY BE. FURTHER THE TRIBUNAL IS EMPOWERED TO CONDONE THE DEL AY ON ITA NO.157 /ASR/2018 (A.Y.2010-11) RAKESH AGGARWAL VS. ITO 7 SATISFACTION THAT THERE WAS SUFFICIENT CAUSE FOR NOT FILLI NG THE APPEAL WITHIN THE PERIOD SPECIFIED. 4.6 IN THE INSTANT CASE IT IS A FACT THAT THE IMPUGNED ORDE R DATED 14-09-2017 APPEALED AGAINST WAS NOT SERVED UPON THE ASSESSEE DIRECTLY, WHICH IS MANDATORY AS PER SECTION 253(3) O F THE ACT AND THE IMPUGNED ORDER WAS RECEIVED BY THE ASSESSE ONLY ON 31-01-2018 AND IMMEDIATELY THEREAFTER ON 23 -03-2018, THE ASSESSEE HAS PREFERRED THE INSTANT APPEAL WITHIN 60 D AYS, THEREFORE IT DOES NOT APPEAR THAT THERE IS ANY DELAY, HOWEVER IF STILL WE CONSTRUE THAT THERE IS DELAY OF 130 DAYS IN FIL ING OF THE APPEAL EVEN THEN ALSO THE ASSEEEE BY EXPLAINING PECULI AR FACTS AND CIRCUMSTANCES AND FILLING THE AFFIDAVIT OF THE ASSESSEE , TRIED TO DEMONSTRATE THE BONAFIDE AND SUFFICIENT CAUSE FOR NON -FILLING OF THE APPEAL WITHIN THE TIME LIMIT. 4.7 IT IS SETTLED BY THE APEX COURT THAT THE COURT SHO ULD DECIDE THE MATTERS ON MERITS UNLESS THE CASE IS HOPELESSLY WIT HOUT MERIT AND THE PURPOSE OF LIMITATION ACT WAS NOT TO DESTROY TH E RIGHTS. THEREFORE THE CASE WHICH HAS MERIT CAN NOT BE THROWN OU T MERELY ON LEGAL TECHNICALITIES BECAUSE IT WELL SETTLED BY THE APEX COURT THAT WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIO NS 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 DE LAY. CRUX OF THE AFORESAID DECISIONS IS THAT THE WORDS 'SUFFICIENT CAUSE' SHOU LD RECEIVE A LIBERAL CONSTRUCTION SO AS TO ADVANCE SUBSTANTIAL JUSTICE, H ENCE TAKING INTO CONSIDERATION THE PECULIAR FACTS AND CIRCUMSTANCES OF THE INSTANT CASE, WE ARE OF THE VIEW THAT SERVICE TO THE COUNSEL IS NOT A SERVICE AS PER LAW AND DELA Y OF 130 DAYS HAS REASONABLY EXPLAINED BY THE ASSESSEE AS UNINTENTIONAL AND/OR DISHONEST BUT FOUND TO BE BONAFI DE, HENCE, ITA NO.157 /ASR/2018 (A.Y.2010-11) RAKESH AGGARWAL VS. ITO 8 WE ARE INCLINED TO CONDONE THE DELAY OF 130 DAYS IN FI LING THE INSTANT APPEAL. DELAY CONDONED. 5. NOW COMING TO THE MERIT OF THE CASE, AS IT APPEARS FROM THE ORDER THAT THE ASSESSEE WAS GRANTED SEVEN OPPORTUNITI ES, HOWEVER ON SIX OCCASIONS SOUGHT ADJOURNMENTS THROUGH HIS AUTHORIZED REPRESENTATIVE AND THEREFORE FINALLY ON 14.08.2017, THE LD. CIT(A) PASSED THE ORDER AND IN PARA NO.4 OBSE RVED THAT FROM THE ABOVE STATED FACTS AND IN THE CIRCUMSTANCE S OF THE CASE, IT IS CLEAR THAT THE ASSESSEE IS NOT INTERESTED IN PUR SUING THE APPEAL FILED BY IT. AS SUFFICIENT OPPORTUNITIES OF BEING H EARD WAS ALREADY PROVIDED TO THE ASSESSEE, HENCE I AM OF THE OPINION THAT NO MORE OPPORTUNITIES ARE REQUIRED TO BE GIVE TO THE ASSESS EE, THEREFORE, THE APPEAL FILED BY THE ASSESSEE IS BEING DECIDED ON TH E BASIS OF MATERIAL AVAILABLE ON RECORD . FROM THE ORDER, IT REFLECTS THAT ALTHOUGH THE LD. CIT(A) HAS TAKEN INTO ACCOUNT THE ME RIT OF THE CASE, HOWEVER, DID NOT PASS REASONED ORDER AS PER GROUND S RAISED BY THE ASSESSEE, THEREFORE, IT IS CLEAR THAT MORE OR LESS, THE ASSESSEES APPEAL HAS BEEN DISMISSED BY THE LD. CIT(A) IN LIMINE AS EX-PARTE . 5.1 WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO THE O RDER IMPUGNED HEREIN. THE APPELLANT DID NOT BOTHER HIMSEL F TO APPEAR AND CO-ORDINATE WITH APPELLATE PROCEEDINGS EVEN AFTER AFFORDING FIVE OPPORTUNITIES. ALTHOUGH THE INSTANT APPEAL OF T HE ASSESSEE IS LIABLE TO BE DISMISSED IN ORDER TO GIVE EFFECT TO THE PRINCIPLE THAT LAW DOES NOT ASSIST THE PERSON WHO IS INACTIVE AND SL EEPS OVER HIS RIGHTS BY ALLOWING THEM WHEN CHALLENGED OR DI SPUTED TO REMAIN DORMANT, WITHOUT ASSERTING THEM IN A COURT OF L AW. THE, PRINCIPLE WHICH FORMS THE BASIS OF THIS RULE IS EXPRESSED IN THE MAXIM VIGILANTIBUS , NON DORMIENTIBUS , JURA SUBVENIUNT (LAW ASSISTS THOSE WHO ARE VIGILANT AND NOT THOSE WHO SLEE P OVER ITA NO.157 /ASR/2018 (A.Y.2010-11) RAKESH AGGARWAL VS. ITO 9 THEIR RIGHTS), BUT EVEN A VIGILANT LITIGANT IS PRONE TO COMMIT MISTAKES. AS THE APHORISM TO ERR IS HUMAN AND IS MORE A PRACTICAL NOTION OF HUMAN BEHAVIOUR THAN AN ABSTRACT P HILOSOPHY, THE UNINTENTIONAL LAPSE ON THE PART OF A LITIGANT SHO ULD NOT NORMALLY CAUSE THE DOORS OF THE JUDICATURE PERMANENTLY CLOSED BEFORE HIM. THE EFFORT OF THE COURT SHOULD NOT BE ONE OF FINDING MEANS TO PULL DOWN THE SHUTTERS OF ADJUDICATORY JURISDI CTION BEFORE A PARTY WHO SEEKS JUSTICE, ON ACCOUNT OF ANY MISTAK E COMMITTED BY HIM, BUT TO SEE WHETHER IT IS POSSIBLE TO E NTERTAIN HIS GRIEVANCE IF IT IS GENUINE, THEREFORE, CONSIDERING T HE FACTS THAT THE LD. CIT(A) HAS NOT PASSED THE ORDER UNDER CHAL LENGE ON MERIT, WE FEEL IT APPROPRIATE AND PROPER TO REMAND BACK THE INSTANT CASE TO THE FILE OF THE LD. CIT(A) TO DECIDE AF RESH ON MERITS, WHILE AFFORDING PROPER AND REASONABLE OPPORTU NITY OF BEING HEARD TO THE ASSESSEE/APPELLANT, IN ORDER TO FOLL OW THE PRINCIPLE OF NATURAL JUSTICE. HENCE ORDERED ACCORDINGLY BUT SUBJECT TO CONDITION THE ASSESSE SHALL WITHIN 30DAYS OF THIS ORDER, SUO MOTO APPEAR BEFORE THE LD. CIT(A) AND TO EXTEND ITS FULL CO-OPERA TION AND PARTICIPATION IN THE APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A) AS AND WHEN REQUIRED AND IN CASE OF FURTHER DEFAULT, T HE ASSESSEE SHALL NOT BE SUBJECTED TO ANY LENIENCY. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 13.02.2019. SD/- SD/- (N.S.SAINI) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JUDI CIAL MEMBER DATED:13.02.2019 /PK/ PS. ITA NO.157 /ASR/2018 (A.Y.2010-11) RAKESH AGGARWAL VS. ITO 10 COPY OF THE ORDER FORWARDED TO: (1) RAKESH AGGARWAL, EF-490, KRISHAN NAGAR, JA LANDHAR. (2) THE INCOME TAX OFFICER, WARD-III(3), JALANDH AR (3) THE CIT(A)-2, JALANDHAR (4) THE CIT CONCERNED (5) THE SR DR, I.T.A.T., AMRITSAR TRUE COPY BY ORDER FILENAME: RAKESH AGGARWAL, 157-18 FINAL DIRECTORY: G: TEMPLATE: C:\USERS\ETC PARMOD\APPDATA\ROAMING\MICROSOFT\TEMPLATES\NORMAL.D OT TITLE: IN THE INCOME TAX APPELLATE TRIBU NAL SUBJECT: AUTHOR: RAHUL PRABHAKAR KEYWORDS: COMMENTS: CREATION DATE: 2/12/2019 2:43:00 PM CHANGE NUMBER: 80 LAST SAVED ON: 2/26/2019 11:25:00 AM LAST SAVED BY: ETC PARMOD TOTAL EDITING TIME: 125 MINUTES LAST PRINTED ON: 2/26/2019 11:26:00 AM AS OF LAST COMPLETE PRINTING NUMBER OF PAGES: 11 (APPROX.) NUMBER OF WORDS: 2,915 (APPROX.) NUMBER OF CHARACTERS: 16,618 (APPROX.)