Shri J.H.Kharawala, Ahmedabad V. DCIT, Circle-5, Ahmedabad

ITA 1617/AHD/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1024 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 5 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2000-2001
• Appeal Filed On: 02-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEELIPKUMAR
• Assessee Lawyers: NIMESH VAYAWALA
• Keywords: Period of limitation
• Section: 143(3); 80HHC; 201

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL , A BENCH, AHMEDABAD BEFORE SHRI RAJPAL TADAV , JUDICIAL MEMBER AND SHRI WASEEM AHMED , ACCOUNTANT MEMBER ./ ITA NO. 1617/AHD/2018 / ASSTT. YEAR: 2000 - 2001 SHRI J.H. KHARAWALA , JAY HOUSE PANCHVATI CIRCL , , AMBAWADI , AHMEDABAD - 380006 . PAN : ABMPK6325P VS. D.C.I.T. , CIRCLE - 5 AHMEDABAD . (APPLICANT) ( RESPON D ENT ) ASSESSEE BY : SHRI NIMESH VAYAWALA , A.R REVENUE BY : SHRI DEELIP KUMAR, SR . D.R / DATE OF HEARING : 09 / 12 / 201 9 / DATE OF PRONOUNCEMENT: 18 / 12 /201 9 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMM ISSIONER OF INCOME TAX (APPEALS) , AHMEDABAD - 5 DATED 22/05/2018 ( IN SHORT LD.CIT(A) ) ARISING IN THE MATTER OF A SSESSMENT ORDER PASSED UNDER S. 143(3) R.W.S 2 56 OF THE INCOME TAX ACT, 196 1 ( HERE - IN - AFTER REFERRED TO AS 'THE ACT') DT.31 / 12/2017 RELEVANT TO THE ASSESSMENT YEAR 2000 - 20 01 . ITA NO.1617/AHD/2018 ASSTT. YEAR 2000 - 01 2 THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL. 1. THE C.I.T.( A) OUGHT TO HAVE APPRECIATED THAT THE APPEAL WAS ADMISSIBLE AFTER CONDONING THE DELAY AS THE SAME WAS FILED AFTER THE DECISION OF THE APEX COURT ON SECTION 80 HHC. HE OUGHT TO HAVE APPRECIATED THAT THE DECISION OF THE APEX COURT IS FINAL PRONOUNCEMENT OF L AW UNDER ARTICLE 141 OF THE CONSTITUTION AND CONDONED THE DELAY. THE DELAY MAY BE CONDONED AND LD.CIT(A) BE DIRECTED TO DECIDE THE ISSUE ON MERITS. 2. AT THE OUTSET, THE LEARNED AR BEFORE US SUBMITTED THAT THERE WAS DELAY IN FILING THE APPEAL BE FORE THE LEARNED CIT (A) ABOUT FOUR AND HALF YEARS WHICH WAS NOT CONDONED BY HIM. THEREFORE, THE LEARNED CIT (A) DISMISSED THE APPEAL OF THE ASSESSEE FOR THE REASON OF DELAY IN FILING THE SAME AND WITHOUT ADJUDIC ATING THE SAME VIDE ORDER DATED 22 - 05 - 2018 . 3. THE LEARNED AR FURTHER SUBMITTED THAT THE PRIMARILY REASON FOR NOT FILING THE APPEAL BEFORE THE LEARNED CIT (A) WAS THAT THE ISSUE PERTAINING TO THE DEPB RECEIPTS FOR THE DEDUCTION UNDER SECTION 80HHC OF THE ACT WAS DECIDED IN FAVOUR OF THE ASSESSEE BY THE ITA T FOR THE ASSESSMENT YEAR 2002 - 03 AFTER RELYING ON THE ORDER OF THE SPECIAL BENCH IN THE CASE OF TOP MAN EXPORTS WHICH WAS REVERSED BY THE HON BLE GUJARAT HIGH COURT. 4. HOWEVER, SUBSEQUENTLY THE HON BLE SUPREME COURT HAS RESTORED THE ORDER OF THE SPECIAL BENCH OF ITAT IN THE CA SE OF TOP MAN EXPORTS. THE JUDG MENT OF THE H ON BLE APEX COURT IN THE CASE OF TOP MAN EXPORTS WAS DELIVERED IN THE MONTH OF FEBRUARY 2012. BY THE TIME THE ORDER WAS AVAILABLE IN THE PRESS MEDIA, THE TIME LIMIT FOR FILING THE RECTIFIC ATION APPLICATION EXPIRED ON 31 MARCH 2012. THEREAFTER THE APPEAL WAS PREFERRED THE LEARNED CIT (A) AFTER CONSULTING WITH THE TAX CONSULTANT. IN VIEW OF THE ABOVE THE LEARNED AR FOR THE ASSESSEE CLAIMED THAT THE DELAY IN FILING THE APPEAL WAS UNAVOIDABLE A ND BEYOND THE CONTROL OF THE ASSESSEE. THE LEARNED AR IN SUPPORT OF HIS CONTENTION ALSO DREW OUR ATTENTION ON THE AFFIDAVIT FURNISHED BY THE ASSESSEE WHICH IS PLACED ON RECORD. THEREFORE, HE PRAYED BEFORE US TO DIRECT THE LEARNED CIT (A) TO CONDONE THE DEL AY AND ADJUDICATE THE ISSUE RAISED BEFORE HIM ON MERIT. ITA NO.1617/AHD/2018 ASSTT. YEAR 2000 - 01 3 5. ON THE OTHER HAND, THE LEARNED DR BEFORE US SUBMITTED THAT THERE IS INORDINATE DELAY IN FILING THE APPEAL BEFORE THE LEARNED CIT (A) . ACCORDINGLY, HE OPPOSED TO CONDONE THE DELAY IN FILING THE AP PEAL. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. FROM THE PRECEDING DISCUSSION WE FIND THAT THE CONTROVERSY ARISES FOR OUR ADJUDICATION WHETHER THE DELAY IN FILING THE APPEAL BEFORE THE LEARN ED CIT (A) IN THE AFORESAID FACTS AND CIRCUMSTANCES IS REASONABLE AND SUFFICIENT CAUSE FOR CONDONING THE DELAY. THERE IS NO HARD AND FAST RULE WHICH CAN BE LAID DOWN FOR CONDONING THE DELAY IN FILING THE APPEAL. AS SUCH THE DISCRETION FOR CONDONING THE DEL AY CAN BE EXERCISED DEPENDING UPON THE FACTS OF EACH CASE KEEPING IN MIND THAT IN CONSTRUING THE EXPRESSION SUFFICIENT CAUSE , THE PRINCIPLE OF ADVANCING SUBSTANTIAL JUSTICE IS OF PRIME IMPORTANCE. THEREFORE, ADVANCEMENT OF SUBSTANTIAL JUSTICE IS THE PRIM E FACTOR WHILE CONSIDERING THE REASONS FOR CONDONING THE DELAY. 6.1 WE ALSO NOTE THAT THE CASE ON MERIT APPEARS TO BE IN FAVOUR OF THE ASSESSEE. BUT THERE IS A TECHNICAL DEFECT IN THE APPEAL SINCE THE APPEAL WAS NOT FILED WITHIN THE PERIOD OF LIMITATION F OR THE REASON AS DESCRIBED ABOVE . THERE WAS THE AFFIDAVIT FILED BY THE ASSESSEE EXPLAINING THE REASONS FOR THE DELAY IN FILING THE APPEAL BEFORE US. HOWEVER, THE REVENUE HAS NOT FILED ANY COUNTER - AFFIDAVIT TO DENY THE SUBMISSION MADE BY THE ASSESSEE. 6.2 IT IS ALSO IMPORTANT TO NOTE THAT HON BLE SUPREME COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION V. MST. KATIJI AND ORS. (167 ITR 471) LAID DOWN CERTAIN PRINCIPLES FOR CONSIDERING THE CONDONATION PETITION FOR FILING THE APPEAL WHICH ARE REPRODUCED HEREU NDER: (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 AT THE VERY THRESHOLD AND CAUSE OF JUSTICE BEING DEFEATED. AS AGAINST THIS, WHEN DELAY IS CONDON ED, THE HIGHEST THAT CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERITS AFTER HEARING THE PARTIES. ITA NO.1617/AHD/2018 ASSTT. YEAR 2000 - 01 4 (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 DOCTRI NE MUST BE APPLIED IN A RATIONAL, COMMONSENSE AND PRAGMATIC MANNER. (4) WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATION ARE PITTED AGAINST EACH OTHER, THE 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 MALA FIDES. 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 LEGALIZE INJUSTICE ON TECHNICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. FROM THE ABOVE JU DGMENT OF THE HON BLE APEX COURT, WE NOTE THAT THE SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED RATHER THAN DECIDING THE MATTER ON THE BASIS OF TECHNICAL DEFECT. 6.3 WE ALSO NOTE THAT THERE IS NO ALLEGATION FROM THE REVENUE THAT THE APPEAL WAS NOT FILED WITHIN THE TIME BY THE ASSESSEE DELIBERATELY. THEREFORE, WE ARE INCLINED TO PREFER SUBSTANTIAL JUSTICE RATHER THAN TECHNICALITY IN DECIDING THE ISSUE. IN VIEW OF THE ABOVE AND AFTER CONSIDERING THE FACTS IN TOTALITY, WE DIRECT THE LEARNED CIT (A) TO ADMIT THE APPEAL OF THE ASSESSEE AND ADJUDICATE THE ISSUE RAISED BY HIM ON MERIT. HENCE THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED FOR THE STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR THE STATISTICAL PURPOSES. O RDER PRONOUNCED IN THE COURT ON 18 /12 / 2019 AT AHMEDABAD. - SD - - SD - (RAJPAL YADAV ) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER (TRUE COPY) A HMEDABAD; DATED 18 / 12 /2019 MANISH