M/s Bhagwati Colonizers Pt. Ltd, MANSA V. The Income Tax Officer, MANSA

ITA 169/ASR/2015

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5300 (ITAT-AMRITSAR)
• Duration Of Justice: 4 year(s) 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 31-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANDEEP CHAUHAN
• Assessee Lawyers: P N ARORA
• Keywords: Principle of natural justice; Period of limitation; Difference of opinion; Time period of passing order; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL THIRD MEMBER CASE, : AMRITSAR BEFORE SHRI B.R BASKARAN , ACCOUNTANT MEMBER (THIRD MEMBER) ITA NO.169/ASR/2015 ASSESSMENT YEAR : 2006-07 M/S BHAGWATI COLONIZERS PVT. LTD., SUNNI GALI, GAUSHALA ROAD, MANSA. PAN AACCB 4831F VS. THEINCOME-TAX OFFICER, WARD-1(4), MANSA. APPELLANT RESPONDENT APPELLANT BY : SHRI P.N ARORA (ADV.) RESPONDENT BY : SHRI SANDEEP CHAUHAN, CIT (DR) DATE OF HEARING : 29.08.2019 DATE OF ORDER : 22.10.2019 O R D E R PER B.R BASKARAN,ACCOUNTANT MEMBER ON ACCOUNT OF DIFFERENCE OF OPINION BETWEEN HONBLE JUDICIAL MEMBER AND THE HONBLE ACCOUNTANT MEMBER, THE HONB LE PRESIDENT WAS PLEASED TO NOMINATE ME AS THIRD MEMBER IN THE I NSTANT CASE WITH A DIRECTION TO RESOLVE THE ISSUE. 2. THE DIFFERENCE OF OPINION HAS ARISEN IN THE MATTER RELATING TO CONDONING THE DELAY IN FILING OF APPEAL BY THE ASSE SSEE BEFORE THE TRIBUNAL. THE APPEAL FILED BY THE ASSESSEE WAS BAR RED BY LIMITATION BY 571 DAYS. THE AVERMENTS MADE IN THE AFFIDAVIT F ILED BY THE ITANO.169/ASR/2015 PAGE 2 OF 16 DIRECTOR NAMED SHRI AMBA PARSHAD OF THE ASSESSEE CO MPANY EXPLAINING THE REASONS FOR DELAY ARE EXTRACTED BELO W:- I TAKE OATH AND SOLEMNLY DEPOSE AS FOLLOWS: - 1. THAT IN THIS CASE THE APPEAL WAS FILED ON 31.3.20 15. 2. THAT THERE WAS DELAY IN FILING THE APPEAL BEFORE THE LEARNED ITAT, AMRITSAR BENCH, AMRITSAR ON ACCOUNT O F THE FOLLOWING REASONS:- (I) THAT THE ORDER OF WORTHY CIT(A) DATED 14/6/2013 WAS NOT RECEIVED BY ME OR ANY AUTHORIZED PERSON OF THE COMPANY. (II) THAT WE NEVER KNEW THE FACT THAT THE ORDER HAS BEEN PASSED BY THE LEARNED CIT(A) ON 14/6/2013. IT WAS ONLY IN THE PENALTY PROCEEDINGS IT CAME TO KNOW THAT THE APPEAL OF THE ASSESSEE WAS DECIDED AND ON RECEIPT OF THE INFORMATION THE APPELLANT MADE A REQUEST BEFORE THE LD CIT(A) ON 05/03/2014 FOR SUPPLY OF THE COPY OF ORDER OF LD CIT(A). (III) THAT THE COPY OF THE ORDER OF WORTHY CIT(A) WAS RECEIVED ON 04/03/2015 ALONG-WITH A LETTER STATING THAT THE COPY OF THE ORDER WAS RECEIVED BY THE COUNSEL WHO APPEARED BEFORE THE LD CIT(A) BUT THE COUNSEL NEVER INFORMED US ABOUT THE DISPOSAL OF THE APPEAL AS WELL AS ABOUT THE ORDER OF THE WORTHY CIT(A). (IV) THAT THE DELAY TOOK PLACE IN FILING THE APPEAL BEFORE THE LEARNED BENCH AND WAS REASONABLE ITANO.169/ASR/2015 PAGE 3 OF 16 AND SUFFICIENT CAUSE FOR FILING THE BELATED APPEAL. AS THERE SUCH, IT IS PRAYED THAT THE DELAY MAY KINDLY BE CONDONED UNDER THESE CIRCUMSTANCES. 3. BEFORE LD CIT(A), THE ASSESSEE WAS REPRESENT ED BY AN ADVOCATE NAMED SHRI J.K. GUPTA. DURING THE COURSE OF HEARIN G, THE LD DEPARTMENTAL REPRESENTATIVE FURNISHED A COPY OF PRE SCRIBED FORM NO.35 FILED BY THE ASSESSEE BEFORE LD CIT(A), WHERE IN THE ADDRESS OF SHRI J.K. GUPTA WAS MENTIONED AS THE ADDRESS TO WHI CH THE NOTICE/ORDER TO BE SERVED. AS PER THE RECORDS OF L D CIT(A), THE ORDER WAS SERVED ON SHRI J.K.GUPTA ON 08/07/2013 ITSELF A ND A COPY OF ACKNOWLEDGEMENT OF SUCH SERVICE WAS ALSO PLACED ON RECORD. 4. ACCORDING TO THE ASSESSEE, THE COUNSEL SHRI J.K. GUPTA DID NOT INTIMATE OR FORWARD COPY OF APPELLATE ORDER PAS SED BY LD CIT(A). IT CAME TO KNOW OF ORDER PASSED BY LD CIT(A) ONLY W HEN THE PENALTY PROCEEDINGS WERE COMMENCED BY THE AO AND ACCORDINGL Y IT FILED AN APPLICATION WITH THE OFFICE OF LD CIT(A) ON 05-03-2 014 SEEKING A COPY OF THE APPELLATE ORDER PASSED BY LD CIT(A). T HE COPY OF THE ORDER WAS SUPPLIED BY THE OFFICE OF LD CIT(A) ON 04 -03-2015 (AFTER EXPIRY OF ABOUT ONE YEAR FROM THE DATE OF APPLICATI ON FILED BY THE ASSESSEE). IMMEDIATELY AFTER THE RECEIPT OF COPY O F THE APPELLATE ORDER ON 04-03-2015, THE ASSESSEE FILED APPEAL BEFO RE THE TRIBUNAL ON 31.03.2015. 5. WITH REGARD TO THE PETITION FILED BY THE AS SESSEE PRAYING FOR CONDONATION OF DELAY, THE LEARNED ACCOUNTANT MEMBER TOOK THE VIEW THAT THE ASSESSEE HAS FAILED TO SHOW THAT IT W AS PREVENTED BY ITANO.169/ASR/2015 PAGE 4 OF 16 SUFFICIENT CAUSE IN FILING THE APPEAL BELATEDLY. A CCORDINGLY THE LD ACCOUNTANT MEMBER HELD THAT THE DELAY CANNOT BE CON DONED AND THE APPEAL OF THE ASSESSEE IS NOT LIABLE TO BE ADMI TTED. THE LEARNED JUDICIAL MEMBER, HOWEVER, TOOK THE VIEW THA T THE EXPLANATIONS GIVEN BY THE ASSESSEE ALONG WITH RELEV ANT DOCUMENTS CLEARLY DEMONSTRATED THE BONAFIDE AND SUFFICIENT CA USE FOR NON- FILING OF APPEAL WITHIN THE TIME LIMIT. ACCORDINGL Y LEARNED JUDICIAL MEMBER TOOK THE VIEW THAT THE DELAY SHOULD BE CONDO NED. 6. THERE WAS DIFFERENCE OF OPINION BETWEEN THE MEMBERS WITH REGARD TO THE MATTER OF FRAMING QUESTIONS RELATING TO POINT OF DIFFERENCE ALSO. WITH REGARD TO THE POINT OF DIFFE RENCE, THE LD. ACCOUNTANT MEMBER HAS FRAMED THE FOLLOWING QUESTION S:- 1.(A) WHETHER SUFFICIENT CAUSE, WHICH IS A QUESTIO N OF FACT, TO BE CONSIDERED 1ING THE TOTALITY OF THE EV ENTS THAT HAVE TAKEN PLACE IN PARTICULAR CASE AS EXPLAINED BY THE HON'BLE JURISDICTIONAL HIGH COURT IN HARISH KUMAR CHHABRA VS. CIT (IN ITA NO.38/2012, {O&M} DATED 28.08.2012), BE SAID TO HAVE BEEN SHOWN BY THE ASSESSEE-APPELLANT IN THE INSTANT CASE OR NOT? B) WHETHER THE ASSESSEE CAN, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, BE SAID TO HAVE SATISFI ED THE COURT THAT IT WAS PREVENTED BY SUFFICIENT CAUSE FRO M PREFERRING, THE APPEAL UNDER REFERENCE WITHIN THE PRESCRIBED TIME, WHICH IS THE ONLY CRITERIA 1AID D OWN BY THE CLEAR ENUNCIATION OF SECTIONS 3 & 5 OF THE LIMI TATION AI 963? 2. WHETHER THE ASSESSEES CONDUCT, VITAL IN CONDONI NG THE DELAY, BE REGARDED AS BONA FIDE OR NOT IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE? ITANO.169/ASR/2015 PAGE 5 OF 16 3. WHETHER THE DECISION ON MERITS, REQUIRING DELVIN G INTO THE FACTS OF THE CASE, SHOULD INFLUENCE THE DECISIO N OF THE COURT IN DECIDING THE MATTER OF LIMITATION IN-AS-MU CH AS JURISDICTION TO ADJUDICATE ON MERITS COULD ONLY FOL LOW THE ADMISSION OF THE APPEAL, WITH IT BEING OTHERWISE TR ITE LAW THAT THE COURTS HAVE NO POWER TO EXTEND THE LIMITAT ION, WHERE OTHERWISE NOT LIABLE TO BE CONDONED; THE DECI SION ON MERITS BEING RENDERED ONLY IN VIEW OF THE DIFFER ENCE BETWEEN THE MEMBERS CONSTITUTING THE BENCH? 7. THE LD JUDICIAL MEMBER DID NOT AGREE WITH TH E QUESTIONS FRAMED BY LD ACCOUNTANT MEMBER AND ACCORDINGLY THE LD JUDICIAL MEMBER HAS FRAMED FOLLOWING QUESTIONS:- (I) WHETHER COMMUNICATION OF THE ORDER APPEALED WHICH IS REQUIRES TO BE COMMUNICATED TO THE ASSESSE E, AS REFLECTS FROM THE PROVISIONS OF SEC 253(3) OF TH E IT ACT, 1961 HAS BEEN COMMUNICATED IN THE INSTANT CASE TO THE ASSESSEE OR NOT, OR CAN IT BE DISPENSED WITH. (II) WHETHER ONCE THE REVENUE DEPARTMENT FAILED TO ESTABLISH ON RECORD THE SERVICE OF THE ORDER APPEAL ED DIRECT OR OTHERWISE TO THE ASSESSEE AS HELD IN THE INSTANT CASE, THEN THE DELAY IF ANY IN FILING THE A PPEAL IS CONDONABLE OR NOT. (III) WHETHER IN THE INSTANT CASE, THE SUFFICIENT A ND BONAFIDE CAUSE HAS BEEN SHOWN BY THE ASSESSEE AND DELAY HAS BEEN PROPERLY EXPLAINED BY THE ASSESSEE F OR NOT FILING THE APPEAL WITHIN THE PRESCRIBED PERIOD OF LIMITATION. 8. IN VIEW OF THE DIFFERENCE OF OPINION BETWEEN THE MEMBERS IN FRAMING QUESTIONS ON THE POINT OF DIFFERENCE ALSO, I AM CONSTRAINED TO FRAME THE QUESTION ON THE POINT OF DIFFERENCE TO BRING OUT THE CONTROVERSY APPROPRIATELY AND TO RENDER DECISION ON THOSE ITANO.169/ASR/2015 PAGE 6 OF 16 QUESTION(S). UPON CONSIDERING THE FACTS OF THE CAS E, ISSUE BEFORE ME AND THE QUESTIONS PROPOSED BY BOTH THE MEMBERS, I A M OF THE VIEW THAT THE FOLLOWING QUESTION MAY BE TAKEN UP TO BRIN G OUT DIFFERENCE OF OPINION EXPRESSED BY THE MEMBERS:- WHETHER, IN THE FACTS AND CIRCUMSTANCES OF THE CAS E, THE EXPLANATIONS FURNISHED BY THE ASSESSEE FOR NOT FILI NG THE APPEAL WITHIN THE PRESCRIBED PERIOD OF LIMITATION W OULD CONSTITUTE SUFFICIENT CAUSE OR NOT AND ACCORDINGLY WHETHER THE DELAY IN FILING THE APPEAL SHOULD BE CONDONED OR NO T? 9. THE LD A.R REITERATED THE SUBMISSIONS MADE IN THE PETITION FILED BY THE ASSESSEE REQUESTING THE BENCH TO CONDO NE THE DELAY. HE SUBMITTED THAT THE ASSESSEE HAS SHOWN SUFFICIENT CA USE FOR THE DELAY AND FURTHER THE DELAY IS NOT INTENTIONAL. HE PLACED HIS RELIANCE ON THE FOLLOWING CASE LAWS AND SUBMITTED THAT, IN T HE INTEREST OF NATURAL JUSTICE, THE DELAY SHOULD BE CONDONED. (A) COLLECTOR, LAND ACQUISITION VS. MST. KATIJI&ORS (167 ITR 471)(SC) (B) CIT VS. WEST BENGAL INFRASTRUCTURE DEVELOPMENT FINANCE CORP. LTD ((2011)(334 ITR 269)(SC) (C) BHIVCHANDRA SHANKAR MORE VS. BALUGANGARAM MORE (CIVIL APPEAL NO.4669 OF 2019)(SC) (D) ELNET TECHNOLOGIES LTD VS. DCIT (99 TAXMANN.COM 219)(MAD) (E) SIVALOGAM STEELS (P) LTD VS. CESTAT (70 TAXMAN N.COM 301)(MAD) (F) E-GOVERNANCE SOCIETY VS. CIT (EXEMPTION)(261 T AXMAN 289)(HP) ITANO.169/ASR/2015 PAGE 7 OF 16 (G) M/S LAHOTI OVERSEAS LTD VS. DCIT (ITA NO.3786/MUM/2012) THE LD A.R SUBMITTED THAT THE APPELLATE ORDER PASSE D BY LD CIT(A) WAS SERVED UPON THE EARLIER COUNSEL AND HE HAS FAIL ED TO COMMUNICATE/FORWARD THE SAME TO THE ASSESSEE. HENC E THE ASSESSEE WAS NOT AWARE OF THE FACT OF PASSING OF OR DER BY LD CIT(A). THE ASSESSEE CAME TO KNOW ABOUT THE APPELLATE ORDER ONLY WHEN THE ASSESSING OFFICER STARTED PENALTY PROCEEDINGS. IMM EDIATELY THE ASSESSEE APPLIED FOR A COPY OF THE ORDER, BUT THE S AME WAS SUPPLIED AFTER ONE YEAR FROM THE DATE OF APPLICATION. IMMED IATELY AFTER THE RECEIPT OF THE ORDER, THE ASSESSEE HAS PREFERRED TH E PRESENT APPEAL. HE SUBMITTED THAT THE ASSESSEE SHOULD NOT BE FOUND FAULT WITH THE DELAY, SINCE THE NON-COMMUNICATION OF THE ORDER BY THE EARLIER COUNSEL AND THE DELAY IN FURNISHING THE COPY OF ORD ER BY LD CIT(A) ARE BEYOND THE CONTROL OF THE ASSESSEE. ACCORDINGL Y HE SUBMITTED THAT THERE WAS SUFFICIENT CAUSE FOR THE ASSESSEE IN PREFERRING THE APPEAL BELATEDLY. HE FURTHER SUBMITTED THAT, IF TH E TIME OF LIMITATION IS COMPUTED FROM THE DATE OF SERVICE OF ORDER TO TH E EARLIER COUNSEL, THE SAME WOULD RESULT IN DELAY. HOWEVER, IF THE TI ME LIMIT IS COMPUTED FROM THE DATE OF SUPPLY OF THE ORDER TO TH E ASSESSEE, THE SAME IS WITHIN THE TIME LIMIT. 10. THE LD D.R, ON THE CONTRARY, SUBMITTED THAT THE ASSESSEE HAS GIVEN THE ADDRESS OF THE EARLIER COUNSEL IN FORM NO .35 AS THE ADDRESS TO WHICH THE NOTICE/ORDER TO BE SERVED. TH E LD D.R ALSO FURNISHED A COPY OF FORM NO.35 FILED BEFORE LD CIT( A). ACCORDINGLY, HE SUBMITTED THAT THE LD CIT(A) HAS DULY SERVED THE APPELLATE ORDER TO THE ADDRESS OF THE COUNSEL, WHO HAS BEEN DULY AU THORIZED BY THE ITANO.169/ASR/2015 PAGE 8 OF 16 ASSESSEE. HE SUBMITTED THAT IT IS THE DUTY OF THE ASSESSEE TO FOLLOW- UP THE MATTER WITH HIS COUNSEL. HE SUBMITTED THAT THE ASSESSEE HAS APPOINTED THE COUNSEL AND IS ALSO AWARE ABOUT T HE DETAILS OF HEARING ATTENDED BY THE COUNSEL BEFORE LD CIT(A). H ENCE, AS A PRUDENT BUSINESSMAN, THE ASSESSEE SHOULD HAVE ENQUI RED ABOUT THE RESULTS OF THE APPEAL. HOWEVER, THE ASSESSEE H AS REMAINED SILENT, LETHARGIC AND HAS SIMPLY PUT THE BLAME ON T HE EARLIER COUNSEL, WHICH IS ALSO NOT SUPPORTED BY ANY MATERIA L. ACCORDINGLY THE LD D.R SUBMITTED THAT THERE WAS NO SUFFICIENT C AUSE FOR THE DELAY AND HENCE THE DELAY SHOULD NOT BE CONDONED. 11. IN THE REJOINDER, THE LD A.R SUBMITTED T HAT, SINCE THERE WAS LAPSE ON THE PART OF THE EARLIER COUNSEL IN THE FOR M OF NON- COMMUNICATION ORDER AND IN VIEW OF THE STRAINED REL ATIONSHIP, THERE WAS NO CO-OPERATION FROM THE EARLIER COUNSEL AND HE NCE THE ASSESSEE COULD NOT GET A CONFIRMATION LETTER HIM. HENCE THE ASSESSEE WAS CONSTRAINED TO CHANGE THE COUNSEL. AC CORDINGLY HE SUBMITTED THAT THE BONAFIDES OF THE SUBMISSIONS MAD E IN THE AFFIDAVIT SHOULD NOT BE DOUBTED WITH. 12. I HEARD THE PARTIES ON THIS ISSUE. BEFORE PROCEEDING FURTHER, I PREFER TO EXTRACT BELOW SOME OF OBSERVATIONS MADE/P RINCIPLES LAID IN THE MATTER OF CONDONATION OF DELAY BY HON'BLE COURT S. IN THE DECISION RENDERED BY HON'BLE SUPREME COURT IN THE C ASE OF ESHA BHATTACHARJEE VS. MANAGING COMMITTEE OF RAGHUNATHPU R NAFAR ACADEMY & OTHERS (CIVIL APPEAL NOS.8183 8184 OF 2 013), THE HON'BLE SUPREME COURT HAS REFERRED TO SOME OF THE D ECISIONS RENDERED BY HON'BLE COURTS ON THE PRINCIPLES TO BE FOLLOWED WHILE ITANO.169/ASR/2015 PAGE 9 OF 16 ADJUDICATING THE ISSUE OF CONDONATION OF DELAY. FO R THE SAKE OF CONVENIENCE, I EXTRACT BELOW SOME OF THEM:- (A) IN COLLECTOR, LAND ACQUISITION, ANANTNAG A ND ANOTHER V. MST. KATIJI AND OTHERS (SUPRA), A TWO-JUDGE BENCH O BSERVED THAT THE LEGISLATURE HAS CONFERRED POWER TO CONDONE DELAY BY ENACTING SECTION 5 OF THE INDIAN LIMITATION ACT OF 1963 IN ORDER TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO P ARTIES BY DISPOSING OF MATTERS ON MERITS. THE EXPRESSION SU FFICIENT CAUSE EMPLOYED BY THE LEGISLATURE IS ADEQUATELY EL ASTIC TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SUBSERVES THE ENDS OF JUSTICE, FOR THAT IS TH E LIFE-PURPOSE FOR THE EXISTENCE OF THE INSTITUTION OF COURTS. TH E LEARNED JUDGES EMPHASIZED ON ADOPTION OF A LIBERAL APPROACH WHILE DEALING WITH THE APPLICATIONS FOR CONDONATION OF DE LAY AS ORDINARILY A LITIGANT DOES NOT STAND TO BENEFIT BY LODGING AN APPEAL LATE AND REFUSAL TO CONDONE DELAY CAN RESULT IN A MERITORIOUS MATTER BEING THROWN OUT AT THE VERY THR ESHOLD AND THE CAUSE OF JUSTICE BEING DEFEATED. IT WAS STRESS ED THAT THERE SHOULD NOT BE A PEDANTIC APPROACH BUT THE DOCTRINE THAT IS TO BE KEPT IN MIND IS THAT THE MATTER HAS TO BE DEALT WIT H IN A RATIONAL COMMONSENSE PRAGMATIC MANNER AND CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED OVER T HE TECHNICAL CONSIDERATIONS. IT WAS ALSO RULED THAT THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONED DELIBERATELY OR ON ACCOUNT OF CULPABLE NEGLIGENCE AND THAT THE COURTS ARE NOT SUPPOSED TO LEGALISE INJUSTICE ON TECHNICAL GROUNDS AS IT IS THE DUTY OF THE COURT TO REMOVE INJUSTICE. IN THE SAID CASE THE DIVISION BE NCH OBSERVED ITANO.169/ASR/2015 PAGE 10 OF 16 THAT THE STATE WHICH REPRESENTS THE COLLECTIVE CAUS E OF THE COMMUNITY DOES NOT DESERVE A LITIGANT-NON GRATA STA TUS AND THE COURTS ARE REQUIRED TO BE INFORMED WITH THE SPIRIT AND PHILOSOPHY OF THE PROVISION IN THE COURSE OF INTERP RETATION OF THE EXPRESSION SUFFICIENT CAUSE. (B) IN G. RAMEGOWDA, MAJOR AND OTHERS V. SPECIAL L AND ACQUISITION OFFICER, BANGALORE (1988)(2 SCC 142), VENKATACHALIAH, J. (AS HIS LORDSHIP THEN WAS), SPEA KING FOR THE COURT, HAS OPINED THUS: THE CONTOURS OF THE AREA OF DISCRETION OF THE COUR TS IN THE MATTER OF CONDONATION OF DELAYS IN FILING APPEALS A RE SET OUT IN A NUMBER OF PRONOUNCEMENTS OF THIS COURT. SEE : RAMLAL, MOTILAL AND CHHOTELAL V. REWA COALFIELD LTD.(1962)( 2 SCR 762); SHAKUNTALA DEVI JAIN V. KUNTAL KUMARI(1969)(1 SCR 1006); CONCORD OF INDIA INSURANCE CO. LTD. V. NIRMA LA DEVI(1979)(3 SCR 694); LALA MATA DIN V. A. NARAYANAN(1970)(2 SCR 90); COLLECTOR, LAND ACQUISIT ION V. KATIJI ETC. THERE IS, IT IS TRUE, NO GENERAL PRINC IPLE SAVING THE PARTY FROM ALL MISTAKES OF ITS COUNSEL. IF THERE I S NEGLIGENCE, DELIBERATE OR GROSS INACTION OR LACK OF BONA FIDE O N THE PART OF THE PARTY OR ITS COUNSEL THERE IS NO REASON WHY THE OPPOSITE SIDE SHOULD BE EXPOSED TO A TIME-BARRED AP PEAL. EACH CASE WILL HAVE TO BE CONSIDERED ON THE PARTICU LARITIES OF ITS OWN SPECIAL FACTS. HOWEVER, THE EXPRESSION SUFFICIENT CAUSE IN SECTION 5 MUST RECEIVE A LIBERAL CONSTRUC TION SO AS TO ADVANCE SUBSTANTIAL JUSTICE AND GENERALLY DELAYS IN PREFERRING APPEALS ARE REQUIRED TO BE CONDONED IN T HE ITANO.169/ASR/2015 PAGE 11 OF 16 INTEREST OF JUSTICE WHERE NO GROSS NEGLIGENCE OR DE LIBERATE INACTION OR LACK OF BONA FIDES IS IMPUTABLE TO THE PARTY SEEKING CONDONATION OF THE DELAY.. (C) IN THIS CONTEXT, WE MAY REFER WITH PROFIT TO THE AUTHORITY IN ORIENTAL AROMA CHEMICAL INDUSTRIES LIMITED V. GU JARAT INDUSTRIAL DEVELOPMENT CORPORATION AND ANOTHER (201 0)(5 SCC 459), WHERE A TWO-JUDGE BENCH OF THIS COURT HAS OBSERVED THAT THE LAW OF LIMITATION IS FOUNDED ON P UBLIC POLICY. THE LEGISLATURE DOES NOT PRESCRIBE LIMITAT ION WITH THE OBJECT OF DESTROYING THE RIGHTS OF THE PARTIES BUT TO ENSURE THAT THEY DO NOT RESORT TO DILATORY TACTICS AND SEE K REMEDY WITHOUT DELAY. THE IDEA IS THAT EVERY LEGAL REMEDY MUST BE KEPT ALIVE FOR A PERIOD FIXED BY THE LEGISLATURE. TO PUT IT DIFFERENTLY, THE LAW OF LIMITATION PRESCRIBES A PER IOD WITHIN WHICH LEGAL REMEDY CAN BE AVAILED FOR REDRESS OF TH E LEGAL INJURY. AT THE SAME TIME, THE COURTS ARE BESTOWED W ITH THE POWER TO CONDONE THE DELAY, IF SUFFICIENT CAUSE IS SHOWN FOR NOT AVAILING THE REMEDY WITHIN THE STIPULATED TIME. THEREAFTER, THE LEARNED JUDGES PROCEEDED TO STATE T HAT THIS COURT HAS JUSTIFIABLY ADVOCATED ADOPTION OF LIBERAL APPROACH IN CONDONING THE DELAY OF SHORT DURATION AND A STRI CTER APPROACH WHERE THE DELAY IS INORDINATE. (D) IN IMPROVEMENT TRUST, LUDHIANA V. UJAGAR SIN GH AND OTHERS(2010)(6 SCC 786), IT HAS BEEN HELD THAT WHIL E CONSIDERING AN APPLICATION FOR CONDONATION OF DELAY NO STRAITJACKET FORMULA IS PRESCRIBED TO COME TO THE C ONCLUSION IF ITANO.169/ASR/2015 PAGE 12 OF 16 SUFFICIENT AND GOOD GROUNDS HAVE BEEN MADE OUT OR N OT. IT HAS BEEN FURTHER STATED THEREIN THAT EACH CASE HAS TO BE WEIGHED FROM ITS FACTS AND THE CIRCUMSTANCES IN WHI CH THE PARTY ACTS AND BEHAVES. 13. THE PRINCIPLES THAT EMANATE FROM THE ABOVE S AID DECISIONS ARE THAT, IN THE MATTER OF CONDONATION OF DELAY IN FILI NG APPEALS BEYOND THE LIMITATION PERIOD, THE COURTS ARE EMPOWERED TO CONDONE THE DELAY, PROVIDED THE LITIGANT IS ABLE TO DEMONSTRATE THAT THERE WAS SUFFICIENT CAUSE IN PREFERRING APPEAL BEYOND THE LIMITATION PERIOD. THE COURTS HAVE ALSO HELD THAT THE EXPRESSION SUFF ICIENT CAUSE SHOULD RECEIVE LIBERAL CONSTRUCTION SO AS TO ADVANC E SUBSTANTIAL JUSTICE. HENCE THE QUESTION OF CONDONATION OF DELA Y IS A FACTUAL MATTER AND THE RESULT WOULD DEPEND UPON THE FACTS O F THE CASE AND THE CAUSE SHOWN BY THE ASSESSEE FOR THE DELAY. IT HAS ALSO BEEN OPINED THAT GENERALLY DELAYS IN PREFERRING APPEALS ARE REQUIRED TO BE CONDONED IN THE INTEREST OF JUSTICE, WHERE NO GROSS NEGLIGENCE OR DELIBERATE INACTION OR LACK OF BONA FIDES IS IMPUTA BLE TO THE PARTY SEEKING CONDONATION OF THE DELAY. 14. NOW I SHALL TURN TO THE FACTS OF THE PRESENT CASE. IN THE AFFIDAVIT, THE MAIN REASON CITED BY THE ASSESSEE FO R THE DELAY IS THAT THE COPY OF APPELLATE ORDER WAS RECEIVED BY THE COU NSEL WHO APPEARED BEFORE THE LD CIT(A), BUT THE COUNSEL NEVE R INFORMED THE ASSESSEE ABOUT THE DISPOSAL OF THE APPEAL BY LD CIT (A). IT IS A FACT THAT THE OFFICE OF LD CIT(A) SERVED THE APPELLATE O RDER TO THE COUNSEL OF THE ASSESSEE, AS THE ADDRESS OF THE COUNSEL WAS GIVEN IN FORM NO.35 AS THE ADDRESS TO WHICH NOTICE/ORDER TO BE SE RVED. ONCE THE ITANO.169/ASR/2015 PAGE 13 OF 16 ORDER WAS SERVED, IT IS THE DUTY OF THE COUNSEL TO INFORM THE ASSESSEE ABOUT THE ORDER RECEIVED BY HIM. ACCORDIN G TO THE ASSESSEE, THE COUNSEL DID NOT INFORM OR FORWARD THE COPY OF APPELLATE ORDER TO IT. 15. SINCE THE ASSESSEE HAS PUT BLAME ON THE CO UNSEL, IT WAS SPECIFICALLY ASKED BY THE BENCH AS TO WHETHER THE A SSESSEE COULD GET A LETTER FROM THE COUNSEL IN SUPPORT OF THE AVERMEN TS MADE IN THE AFFIDAVIT. THE LD A.R SUBMITTED THAT IT MAY NOT BE POSSIBLE TO GET A LETTER FROM THE COUNSEL DUE TO STRAINED RELATIONSHI P BETWEEN THE ASSESSEE AND COUNSEL, SINCE THERE WAS LAPSE ON THE PART OF THE COUNSEL. 16. AN ASSESSEE USUALLY ENGAGES A COUNSEL TO AD VISE HIM AND ALSO TO DEAL WITH LEGAL MATTERS AND HENCE, IN THE N ORMAL CIRCUMSTANCES, AN ASSESSEE FULLY PLACES HIS RELIANC E ON THE COUNSEL, DUE TO DOMAIN EXPERTISE POSSESSED BY THE COUNSEL. IN THAT SITUATION, GENERALLY THE ASSESSEE SHOULD NOT BE PUT IN TROUBLE FOR THE MISTAKE, IF ANY, COMMITTED BY A COUNSEL. THE FO LLOWING OBSERVATIONS MADE HON'BLE SUPREME COURT IN THE CASE REPORTED IN AIR 1971 KER. 211 @ 215 SUPPORTS THE ABOVE SAID VIE W:- THE LAW IS SETTLED THAT MISTAKE OF COUNSEL MAY IN CERTAIN CIRCUMSTANCES BE TAKEN INTO ACCOUNT IN CONDONING DE LAY ALTHOUGH THERE IS NO GENERAL PROPOSITION THAT MISTA KE OF COUNSEL BY ITSELF IS ALWAYS A SUFFICIENT GROUND. I T IS ALWAYS A QUESTION WHETHER THE MISTAKE WAS BONAFIDE OR WAS ME RELY A DEVICE TO COVER AN ULTERIOR PURPOSE SUCH AS LACHES ON THE PART ITANO.169/ASR/2015 PAGE 14 OF 16 OF THE LITIGANT OR AN ATTEMPT TO SAVE LIMITATION IN AN UNDERHAND WAY THOUGH THE ABOVE SAID OBSERVATIONS WERE MADE IN THE CONTEXT OF THE WRONG ADVICE GIVEN BY THE COUNSEL, I AM OF THE VIEW THAT THE ABOVE SAID PROPOSITION CAN ALSO BE CONVENIENTLY EXTENDED TO THE LAPSE OF THE COUNSEL IN NOT COMMUNICATING THE APPELLATE TO T HE ASSESSEE ON RIGHT TIME. WHEN AN ASSESSEE AUTHORIZES A COUNSEL TO APPEAR ON HIS BEHALF, SUCH AUTHORIZATION IS GIVEN BY PLACING FAIT H ON THE LEGAL EXPERTISE OF THE COUNSEL AND ALSO WITH THE HOPE THA T THE COUNSEL SHALL TAKE CARE OF THE INTEREST OF THE ASSESSEE. H ENCE, WHEN THERE IS A LAPSE ON THE PART OF THE LEGAL COUNSEL, IN MY VIE W, THE ASSESSEE SHOULD NOT BE FOUND FAULT WITH, UNLESS IT IS SHOWN THAT THE BLAME PUT ON THE COUNSEL WITH MALAFIDE INTENTIONS IN ORDE R TO COVER UP THE MISTAKE/LAPSE ON THE PART OF THE ASSESSEE. IN THE INSTANT CASE, IT IS THE CONTENTION OF THE LD D.R THAT THE EXPLANA TION OF THE ASSESSEE IS NOT SUPPORTED BY ANY EVIDENCE. IN MY V IEW, THE SUBMISSION OF THE LD A.R THAT THE ASSESSEE COULD NO T COLLECT A LETTER FROM THE COUNSEL IN VIEW OF THE STRAINED RELATIONSH IP, IS A REASONABLE EXPLANATION WHEN WE TAKE INTO ACCOUNT HU MAN CONDUCT AND PROBABILITIES, SINCE A PROFESSIONAL COUNSEL CAN NOT BE EXPECTED TO ADMIT HIS LAPSES, LEST IT SHOULD AFFECT HIS REPU TATION. IN ANY CASE, NO MATERIAL WAS BROUGHT ON RECORD BY THE REVENUE TO SHOW THAT THE ASSESSEE WAS CONTINUING TO AVAIL THE SERVICES OF VE RY SAME COUNSEL EVEN AFTER NOTICING HIS LAPSE. HENCE, I AM OF THE V IEW THAT THE REASON GIVEN BY THE AFFIDAVIT CANNOT BE CONSIDERED TO BE A MALAFIDE ONE. IT IS WELL SETTLED PROPOSITION THAT THE MISTA KE ON THE PART OF THE COUNSEL CONSTITUTES SUFFICIENT CAUSE IN THE MATTER RELATING TO CONDONATION OF DELAY. ITANO.169/ASR/2015 PAGE 15 OF 16 17. THE ASSESSEE HAS ALSO SUBMITTED THAT IT HAD APPLIED FOR A COPY OF ORDER BY FILING APPLICATION WITH THE OFFICE OF L D CIT(A) ON 05-03- 2004 AND THE SAME WAS SUPPLIED TO THE ASSESSEE ON 0 4-03-2015. THE DELAY THAT HAS OCCURRED IN SUPPLYING COPY OF OR DER CANNOT BE ATTRIBUTED TO THE ASSESSEE, SINCE IT IS BEYOND THE CONTROL OF THE ASSESSEE. I NOTICE THAT THE ASSESSEE HAS FILED AP PEAL BEFORE THE TRIBUNAL ON 31.3.2005, I.E., IMMEDIATELY AFTER THE RECEIPT OF COPY OF ORDER. 18. THE ISSUE BEFORE ME CAN BE LOOKED FROM ANOT HER ANGLE. I NOTICE THAT THE HONBLE ACCOUNTANT MEMBER, EVEN THO UGH DECLINED TO CONDONE THE DELAY, YET HE HAS ADJUDICATED THE GR OUNDS URGED ON MERITS. THE HONBLE JUDICIAL MEMBER HAS ALSO AGREE D WITH THE VIEW TAKEN BY HONBLE ACCOUNTANT MEMBER ON THE GROUNDS U RGED ON MERITS. THUS, IN EFFECT, THE APPEAL HAS BEEN DISPOS ED OF ON MERITS. THE HONBLE MADRAS HIGH COURT CONSIDERED AN ISSUE R ELATING TO CONDONATION OF DELAY IN THE CASE OF VIJAYESWARI TEX TILES LTD VS. CIT (2003)(131 TAXMAN 833) ON IDENTICAL CIRCUMSTANCES, I.E., IN THE CASE BEFORE HONBLE MADRAS HIGH COURT ALSO, THE TRI BUNAL HAD REFUSED TO CONDONE THE DELAY, BUT DISPOSED THE APPE AL ON MERITS ALSO. THE HONBLE MADRAS HIGH COURT OBSERVED AS UN DER:- 7. MATTERS RELATING TO CONDONATION OF DELAY ARE I NDEED DISCRETIONARY AND ARE NORMALLY LEFT TO THE TRIBUNAL AND THIS COURT WILL NOT ORDINARILY INTERFERE WITH THE DISCRE TION. IN THIS CASE, AS WE HAVE ALREADY POINTED OUT, THE TRIBUNAL DID NOT STOP WITH THE ORDER DECLINING TO CONDONE THE DELAY, BUT CONSIDERED THE MATTER ON MERITS AND HAS PRACTICALLY TREATED ITANO.169/ASR/2015 PAGE 16 OF 16 THE APPEAL AS BEING PROPERLY BEFORE IT AND HAS ANSW ERED THE QUESTION BROUGHT BEFORE IT WITH REFERENCE TO THE MA TERIAL PLACED ON RECORD. IT IS IN THE CIRCUMSTANCES, WE H OLD THAT THE TRIBUNAL WAS IN ERROR IN NOT CONDONING THE DELAY. T HE QUESTION REGARDING THE CORRECTNESS OF THE TRIBUNAL S HOLDING THAT THE DELAY IS NOT TO BE CONDONED IS THEREFORE A NSWERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. ACCORDING TO THE RATIO OF THE ABOVE SAID DECISION, IF THE APPEAL IS ADJUDICATED ON MERITS, THEN REFUSING TO CONDONE THE DELAY IS AN ERROR. 19. IN VIEW OF THE FOREGOING, I AM OF THE VIEW THAT THE ASSESSEE HAS SHOWN SUFFICIENT CAUSE FOR THE DELAY IN FILING APPEAL BEFORE THE TRIBUNAL AND ACCORDINGLY I CONCUR WITH THE VIEW TAK EN BY HONBLE JUDICIAL MEMBER. 20. THE REGISTRY OF ITAT IS DIRECTED TO LIST THES E MATTERS BEFORE THE DIVISION BENCH FOR PASSING OF ORDERS IN ACCORDANCE WITH THE MAJORITY VIEW. SD/- (B.R BASKARAN) ACCOUNTANT MEMBER BANGALORE, DATED, 22ND OCTOBER, 2019. / VMS /