K.Shanthi, CHENNAI V. ITO, CHENNAI

ITA 1674/CHNY/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 8053 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-11-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 24-11-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 06-06-2016
• Court: TRIBUNAL
• Department Lawyers: ASHISH TRIPATHIJCIT D R
• Assessee Lawyers: J RADHAKRISHNAN

Judgement Text

, SMC/B , IN THE INCOME TAX APPELLATE TRIBUNAL SMC/B BENCH, CHENNAI . , BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER ./ I.T.A.NO.1674 /MDS./2016 ( ! / ASSESSMENT YEAR :2009-10) SMT. K.SHANTHI, PROP. SSM GARMENTS 567,T.H.ROAD, CHENNAI -21. VS. THEITO, WARD VII(4),CHENNAI-34. PAN ALCPS 0040 B ( / APPELLANT ) ( / RESPONDENT ) '# $ % / APPELLANT BY : MR.J.RADHAKRISHNAN,ADVOCATE &''# $ % / RESPONDENT BY : MR. ASHISH TRIPATHI,JCIT, D.R ( ) $ * + / DATE OF HEARING : 24.11.2016 ,-! $ * + /DATE OF PRONOUNCEMENT : 24.11.2016 / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: THIS APPEAL IS FILED BY THE ASSESSEE, AGGRIEVED B Y THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(A)-5, CHENNA I DATED 14.03.2016 IN ITA NO.390/CIT(A)-5/13-14 PASSED UN DER SEC.143(3) OF THE ACT. ITA NO. 1674/MDS/2016 2 2. THE ASSESSEE IS AGGRIEVED BY THE ORDER OF THE L D. CIT (A) FOR NOT CONDONING THE DELAY OF 121 DAYS IN FILING THE A PPEAL AND ADJUDICATE THE CASE ON MERITS. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE IS AN INDIVIDUAL. THE ASSESSEE IS CARRYING ON THE BUSINES S OF MANUFACTURE AND EXPORT OF GARMENTS UNDER THE NAME AND STYLE OF SSM GARMENTS. THE ASSESSEE FILED HIS RETURN OF INCOME FOR ASSESSM ENT YEAR 2009-10 ON 28.09.2010 ADMITTING TOTAL INCOME NIL. THE AO COMPLETED THE SCRUTINY ASSESSMENT U/S.143(3) OF THE ACT DATED 30 .12.2011 WHEREIN THE AO MADE ADDITION TOWARDS DISALLOWANCE OF HOUSE LOAN INTEREST. AGGRIEVED, THE ASSESSEE CARRIED THE APPEAL BEFORE T HE LD.CIT(A). 3.1 WHEN THE MATTER REACHED THE LD. CIT (A), THE A PPEAL OF THE ASSESSEE WAS REJECTED BECAUSE THERE WAS A DELAY OF 121 DAYS IN FILING THE APPEAL AND THE ASSESSEE HAD NOT FURNISHE D ANY COGENT REASONS FOR THE DELAY IN FILING THE APPEAL. AGAIN ST THIS, THE ASSESSEE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. ADMITTEDLY IN THIS CASE THERE WAS A DELAY O F 121 DAYS IN FILING ITA NO. 1674/MDS/2016 3 THE APPEAL BEFORE THE LD.CIT(A). THE ASSESSEE EXPL AINED BEFORE THE LD.CIT(A) THAT THE APPEAL PAPERS WERE HANDED OVER THE ASSESSEES COUNSEL WITH A REQUEST TO FILE THE APPEAL BEFORE TH E LD.CIT(A). THE COUNSEL WAS NOT TAKEN APPROPRIATE STEPS TO FILE THE APPEAL IN TIME. AS SUCH THE DELAY WAS CAUSED IN FILING THE APPEAL B EFORE THE LD.CIT(A). LD.A.R PLEADED THAT THE DELAY WAS NEIT HER WILLFUL NOR DELIBERATE BUT DUE TO THE CIRCUMSTANCES BEYOND CONT ROL OF THE ASSESSEE. IN OUR OPINION, THERE WAS A DELAY OF 121 DAYS FILING THE APPEAL BEFORE THE LD.CIT(A), WHICH IS A VERY SHORT DELAY AND REASONS EXPLAINED BY THE ASSESSEE FOUND TO BE GENUINE AND W HEN THERE IS A SUBSTANTIAL JUSTICE INVOLVED, THE TECHNICALITIES TO BE IGNORED. FURTHER, IN THE CASE OF VEDABAI ALIAS VAIJAYANATABAI BABURAO PATIL V. SHANTARAM BABURAO PATIL AND OTHERS REPORTED IN [200 2] 253 ITR 798 (SC) WHEREIN HELD THAT: IN EXERCISING DISCRETION UNDER SECTION 5 OF THE LI MITATION ACT THE COURTS SHOULD ADOPT A PRAGMATIC APPROACH. A DISTINC TION MUST BE MADE BETWEEN A CASE WHERE THE DELAY IS INORDINATE A ND A CASE WHERE THE DELAY IS OF A FEW DAYS. WHEREAS IN THE FO RMER CASE THE CONSIDERATION OF PREJUDICE TO THE OTHER SIDE WILL B E A RELEVANT FACTOR SO THE CASE CALLS FOR A MORE CAUTIOUS APPROACH BUT IN THE LATTER CASE NO SUCH CONSIDERATION MAY ARISE AND SUCH A CAS E DESERVES A LIBERAL APPROACH. NO HARD AND FAST RULE CAN BE LAID DOWN IN THIS ITA NO. 1674/MDS/2016 4 REGARD. THE COURT HAS TO EXERCISE THE DISCRETION ON THE FACTS OF EACH CASE KEEPING IN MIND THAT IN CONSTRUING THE EX PRESSION SUFFICIENT CAUSE, THE PRINCIPLE OF ADVANCING SUBS TANTIAL JUSTICE IS OF PRIME IMPORTANCE. IN OUR VIEW IN THIS CASE, THE APPROACH OF THE LEARNED CIVIL JUDGE IS WHOLLY ERRONEOUS AND HIS ORD ER IS UNSUSTAINABLE. IT IS EVIDENT THAT THE DISCRETION UN DER SECTION 5 OF THE LIMITATION ACT IS EXERCISED BY THE CIVIL JUDGE IN CONTRAVENTION OF THE LAW LAID DOWN BY THIS COURT, THAT THE EXPRESSIO N SUFFICIENT CAUSE SHOULD RECEIVE LIBERAL CONSTRUCTION, IN A CA TENA OF DECISIONS (SEE STATE OF WEST BENGAL V. ADMINISTRATOR, HOWRAH MUNICIPALITY, AIR 1972 SC 749 ; [1972] 1 SCC 366 AND SMT. SANDHYA RANI SARKAR V. SMT. SUDHA RANI DEBI, AIR 1978 SC 537 ; [ 1978] 2 SCC 116). THE HIGH COURT IN EXERCISING ITS JURISDICTION UNDER SECTION 115 OF THE CIVIL PROCEDURE CODE, FAILED TO CORRECT THE JURISDICTIONS ERROR OF THE APPELLATE COURT. FOR THE AFOREMENTIONED REASONS, WE SET ASIDE THE IM PUGNED ORDER OF THE HIGH COURT AS WELL AS THAT OF THE CIVIL JUDG E, AMALNER (THE APPELLATE COURT), CONDONE THE DELAY OF SEVEN DAYS I N FILING THE APPEAL, RESTORE THE APPEAL TO THE FILE OF THE CIVIL JUDGE AND DIRECT THE LEARNED CIVIL JUDGE, AMALNER, TO DECIDE THE APP EAL ON THE MERITS. FURTHER, SUPREME COURT IN THE CASE OF COLLECTOR, LA ND ACQUISITION V. MST. KATIJI AND OTHERS IN [1987] 167 ITR 471 (SC) W HEREIN HELD THAT: IT MUST BE GRASPED THAT THE JUDICIARY IS RESPECTED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GRO UNDS BUT BECAUSE ITA NO. 1674/MDS/2016 5 IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. MAKING A JUSTICE-ORIENTED APPROACH FROM THIS PERSPE CTIVE, THERE WAS SUFFICIENT CAUSE FOR CONDONING THE DELAY IN THE INSTITUTION OF THE APPEAL. THE FACT THAT IT WAS THE ' STATE ' WHIC H WAS SEEKING CONDONATION AND NOT A PRIVATE PARTY WAS ALTOGETHER IRRELEVANT. THE DOCTRINE OF EQUALITY BEFORE LAW DEMANDS THAT ALL LI TIGANTS, INCLUDING THE STATE AS A LITIGANT, ARE ACCORDED THE SAME TREA TMENT AND THE LAW IS ADMINISTERED IN AN EVEN-HANDED MANNER. THERE IS NO WARRANT FOR ACCORDING A STEP-MOTHERLY TREATMENT WHE N THE ' STATE ' IS THE APPLICANT PRAYING FOR CONDONATION OF DELAY. IN FACT, EXPERIENCE SHOWS THAT ON ACCOUNT OF AN IMPERSONAL M ACHINERY (NO ONE IN CHARGE OF THE MATTER IS DIRECTLY HIT OR HURT BY THE JUDGMENT SOUGHT TO BE SUBJECTED TO APPEAL) AND THE INHERITED BUREAUCRATIC METHODOLOGY IMBUED WITH THE NOTE-MAKING, FILE-PUSHI NG, AND PASSING-ON-THE-BUCK ETHOS, DELAY ON ITS PART IS LES S DIFFICULT TO UNDERSTAND THOUGH MORE DIFFICULT TO APPROVE. IN ANY EVENT, THE STATE WHICH REPRESENTS THE COLLECTIVE CAUSE OF THE COMMUNITY, DOES NOT DESERVE A LITIGANT NON GRATA STATUS. THE C OURTS, THEREFORE, HAVE TO BE INFORMED OF THE SPIRIT AND PHILOSOPHY OF THE PROVISION IN THE COURSE OF THE INTERPRETATION OF THE EXPRESSION ' SUFFICIENT CAUSE '. SO ALSO THE SAME APPROACH HAS TO BE EVIDENCED IN ITS APPLICATION TO MATTERS AT HAND WITH THE END IN VIEW TO DO EVEN- ITA NO. 1674/MDS/2016 6 HANDED JUSTICE ON MERITS IN PREFERENCE TO THE APPRO ACH WHICH SCUTTLES A DECISION ON MERITS. TURNING TO THE FACTS OF THE MATTER GIVING RISE TO THE PRESENT APPEAL, WE ARE SATISFIED THAT SUFFICIENT CAUSE EXISTS FOR THE DELAY. THE ORDER OF THE HIGH C OURT DISMISSING THE APPEAL BEFORE IT AS TIME-BARRED, IS THEREFORE, SET ASIDE. DELAY IS CONDONED. AND THE MATTER IS REMITTED TO THE HIGH CO URT. THE HIGH COURT WILL NOW DISPOSE OF THE APPEAL ON MERITS AFTE R AFFORDING REASONABLE OPPORTUNITY OF HEARING TO BOTH THE SIDES . CONSIDERING THE PRESENT CASE, WE FIND THAT THE DELA Y OF 121 DAYS IN FILING THE APPEAL DUE TO THE LACK OF PROFESSIONAL D ILIGENCE SHOWN BY REPRESENTATIVE OF THE ASSESSEE FOR NOT ADVISING THE ASSESSEE IN FILING THE APPEAL WITHIN THE PRESCRIBED PERIOD, AND UNDOUB TEDLY, THE SHORT DELAY CANNOT BE SAID THAT IT IS AN INTENTIONAL ONE. THIS IS SO BECAUSE THE DELAY IS ATTRIBUTABLE TO THE COUNSEL OF THE ASS ESSEE, NOT TO THE ASSESSEE. ACCORDINGLY, WE ARE OF THE CONSIDERED VIE W THAT IN THE INTEREST OF JUSTICE, AN OPPORTUNITY SHOULD BE PROVI DED TO THE ASSESSEE TO PURSUE HER APPEAL. THEREFORE, WE HEREBY CONDONE THE DELAY OF 121DAYS IN FILING THE APPEAL AND HEREBY REMIT THE M ATTER BACK TO THE FILE OF LD. CIT (A) WITH DIRECTION TO HEAR THE APPE AL ON MERITS AND PASS ITA NO. 1674/MDS/2016 7 APPROPRIATE ORDER AS PER LAW AFTER AFFORDING SUFFIC IENT OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. 5. AT THIS STAGE, WE REFRAIN FROM GOING TO OTHER G ROUNDS RAISED BY THE ASSESSEE ON MERIT. 6. IN THE RESULT, THE APPEAL OF ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 24 TH NOVEMBER, 2016 AT CHENNAI. SD/- ( ) ( CHANDRA POOJARI ) /ACCOUNTANT MEMBER CHENNAI, DATED THE 24 TH NOVEMBER, 2016. K S SUNDARAM. . $ &*/0 1 0!* / COPY TO: 1 . '# / APPELLANT 3. ( 2* () / CIT(A) 5. 0 5 6 &*7 / DR 2. &''# / RESPONDENT 4. ( 2* / CIT 6. 6 8 9 ) / GF