VINI CONTAINER LINES PRIVATE LIMITED, MUMBAI V. INCOME TAX OFFICER 15(3)(2), MUMBAI

ITA 2/MUM/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6533 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: misc
• Appeal Filed On: 01-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B SATYANARAYAN RAJUDR
• Assessee Lawyers: MANDAR VAIDYAAR
• Keywords: Opportunity of being heard; Condonation of delay

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F, MUMBAI , .., , ! BEFORE SHRI JOGINDER SINGH, VICE PRESIDENT, AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER ITA NO.02/MUM/2018 ASSESSMENT YEARS: 2012-13 VINI CONTAINERS LINES PRIVATE LIMITED, 1205/1206, ELLORA FIESTA, SECTOR-11, SANPADA, NAVI MUMBAI-400705 / VS. ITO-15(3)(2), MUMBAI ( $%& ' /ASSESSEE) ( ( / REVENUE) P.A. NO.AABCV9947R $%& ' / ASSESSEE BY SHRI MANDAR VAIDYA-AR ( / REVENUE BY SHRI B. SATYANARAYAN RAJU-DR ) (*+' , / DATE OF HEARING : 17/01/2019 +' , / DATE OF PRONOUNCEMENT 17/01/2019 / O R D E R PER JOGINDER SINGH (VICE PRESIDENT) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED EX- PARTE ORDER DATED 17/03/2017 OF THE LD. FIRST APPEL LATE AUTHORITY, MUMBAI. ITA NO.02/MUM/2018 VINI CONTAINERS LINES PRIVATE LIMITED 2 2. DURING HEARING, THE LD. COUNSEL FOR THE ASSESSE E, SHRI MANDAR VAIDYA, CONTENDED THAT AN EX-PARTE ORDE R HAS BEEN PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEAL), DENYING THE ASSESSEE OF PROVIDING OPPORTU NITY OF BEING HEARD. IT WAS PLEADED THAT THE ASSESSEE IS IN A POSITION TO SUBSTANTIATE ITS CLAIM. ON THE OTHER HA ND, THE LD. DR, SHRI V. SATYANARAYAN RAJU, DEFENDED THE ADD ITION MADE BY THE LD. ASSESSING OFFICER BY CONTENDING THA T IT WAS THE DUTY OF THE ASSESSEE TO REMAIN PRESENT BEFORE T HE LD. COMMISSIONER OF INCOME TAX (APPEAL) ON THE APPOINTE D DATE. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. DURING HE ARING, IT WAS ALSO POINTED OUT THAT THERE IS DELAY OF 13 DAYS , WHICH NEEDS TO BE CONDONED. THE ASSESSEE HAS FILED AN AFF IDAVIT EXPLAINING THE REASONS OF DELAY. THE LD. DR POINTED OUT THAT THE ASSESSEE HAS TO EXPLAIN THE REASONS OF DELAY. 2.2. IN VIEW OF THE ASSERTIONS MADE BY THE LD. RESPECTIVE COUNSEL, SO FAR AS, CONDONATION OF DELAY IS CONCERNED NO DOUBT FILING OF AN APPEAL IS A RIGHT G RANTED UNDER THE STATUTE TO THE ASSESSEE AND IS NOT AN AUT OMATIC ITA NO.02/MUM/2018 VINI CONTAINERS LINES PRIVATE LIMITED 3 PRIVILEGE, THEREFORE, THE ASSESSEE IS EXPECTED TO B E VIGILANT IN ADHERING TO THE MANNER AND MODE IN WHICH THE APP EALS ARE TO BE FILED IN TERMS OF THE RELEVANT PROVISIONS OF THE ACT. NEVERTHELESS, A LIBERAL APPROACH HAS TO BE ADOPTED BY THE APPELLATE AUTHORITIES, WHERE DELAY HAS OCCURRED FOR BONA- FIDE REASONS ON THE PART OF THE ASSESSEE OR THE REVENUE IN FILING THE APPEALS. IN MATTERS CONCERNING THE FILI NG OF APPEALS, IN EXERCISE OF THE STATUTORY RIGHT, A REFU SAL TO CONDONE THE DELAY CAN RESULT IN A MERITORIOUS MATTE R BEING THROWN OUT AT THE THRESHOLD, WHICH MAY LEAD TO MISC ARRIAGE OF JUSTICE. THE JUDICIARY IS RESPECTED NOT ON ACCOU NT OF ITS POWER TO LEGALIZE IN JUSTICE ON TECHNICAL GROUNDS B UT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. 2.3. THE HONBLE APEX COURT IN A CELEBRATED DECIS ION IN COLLECTOR, LAND ACQUISITION VS MST. KATIJI & ORS . 167 ITR 471 OPINED THAT WHEN TECHNICAL CONSIDERATION AND SUBSTANTIAL JUSTICE ARE PITTED AGAINST EACH OTHER, THE COURTS ARE EXPECTED TO FURTHER THE CAUSE OF SUBSTANTIAL JU STICE. THIS IS FOR THE REASON THAT AN OPPOSING PARTY, IN A DISPUTE, ITA NO.02/MUM/2018 VINI CONTAINERS LINES PRIVATE LIMITED 4 CANNOT HAVE A VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON- DELIBERATE DELAY. THEREFORE, IT FOLLOWS THAT WHILE CONSIDERING MATTERS RELATING TO THE CONDONATION OF DELAY, JUDICIOUS AND LIBERAL APPROACH IS TO BE ADOPTED. I F SUFFICIENT CAUSE IS FOUND TO EXIST, WHICH IS BONA-F IDE ONE, AND NOT DUE TO NEGLIGENCE OF THE ASSESSEE, THE DELA Y NEEDS TO CONDONED IN SUCH CASES. THE EXPRESSION SUFFICI ENT CAUSE IS ADEQUATELY ELASTIC TO ENABLE THE COURTS T O APPLY LAW IN A MEANINGFUL MANNER, WHICH SUB-SERVES THE EN D OF JUSTICE- THAT BEING THE LIFE PURPOSE OF THE EXISTEN CE OF THE INSTITUTION OF THE COURTS. WHEN SUBSTANTIAL JUSTIC E AND TECHNICAL CONSIDERATION ARE PITTED AGAINST EACH OTH ER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERR ED. THE HONBLE APEX COURT IN VEDABHAI VS SANTARAM 253 ITR 798 OBSERVED THAT INORDINATE DELAY CALLS OF CAUTIOUS AP PROACH. THIS MEANS THAT THERE SHOULD BE NO MALAFIDE OR DILA TORY TACTICS. SUFFICIENT CAUSE SHOULD RECEIVE LIBERAL C ONSTRUCTION TO ADVANCE SUBSTANTIAL JUSTICE. THE HONBLE APEX C OURT IN 167 ITR 471 OBSERVED AS UNDER:- ITA NO.02/MUM/2018 VINI CONTAINERS LINES PRIVATE LIMITED 5 3. THE LEGISLATURE HAS CONFERRED THE POWER TO COND ONE DELAY BY ENACTING SECTION 51 OF THE LIMITATION ACT OF 196 3 IN ORDER TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO P ARTIES BY DISPOSING OF MATTERS ON DE MERITS. THE EXPRESSION SUFFICIENT 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 THAT BEING THE LIFE-PURPOSE OF THE EXISTENCE OF THE INSTITUTION OF COURTS. IT I S COMMON KNOWLEDGE THAT THIS COURT HAS BEEN MAKING A JUSTIFI ABLY LIBERAL APPROACH IN MATTERS INSTITUTED IN THIS COUR T. BUT THE MESSAGE DOES NOT APPEAR TO HAVE PERCOLATED DOWN TO ALL THE OTHERS COURTS IN THE HIERARCHY. 2.4. FURTHERMORE, THE HON'BLE SUPREME COURT IN THE CASE OF VEDABAI ALIA VAIJAYANATABAI BABURAO PATIL V S. SHANTARAM BABURAO PATIL 253 ITR 798 HELD THAT THE C OURT HAS TO EXERCISE THE DISCRETION ON THE FACTS OF EACH CASE KEEPING IN MIND THAT IN CONSTRUING THE EXPRESSION SUFFICIENT CAUSE, THE PRINCIPLE OF ADVANCING SUBS TANTIAL JUSTICE IS OF PRIME IMPORTANCE. THE COURT HELD THAT THE EXPRESSION SUFFICIENT CAUSE SHOULD RECEIVE LIBERA L CONSTRUCTION. 2.5. THE DECISION OF THE TRIBUNAL IN PEOPLE INFOCO M PRIVATE LTD. V/S CIT (ITA NO.210/MUM/2013) ORDER DA TED 19/05/2016, M/S NEUTRON SERVICES CENTRE PVT. LTD VS ITO (ITA NO.1180/MUM/2012) ORDER DATED 18/02/2016, SHRI ITA NO.02/MUM/2018 VINI CONTAINERS LINES PRIVATE LIMITED 6 SAIDATTA COOP-. CREDIT SOCIETY LTD. V/S ITO (ITA NO.2379/MUM/2015) ORDER DATED 15/01/2016 AND MR. NIKUNJ BAROT (PROP. ENIGMA) VS ITO (ITA NO.4887/MUM/2015) ORDER DATED 06/01/2016, WHEREIN, SUBSTANTIAL DELAY WAS CONDONED, SUPPORTS THE CASE OF THE PRESENT ASSESSEE . HAVING MADE THE AFORESAID OBSERVATION AND VARIOUS DECISIONS DISCUSSED HEREINABOVE, INCLUDING FROM HON BLE APEX COURT, THE CIRCUMSTANCES NARRATED BY THE ASSES SEE, WHEREIN, HE HAS STATED THE REASONS WHICH CAUSED THE DELAY, THEREFORE, THE DELAY IS CONDONED. 3. SO FAR AS, THE MERIT OF THE APPEAL IS CONCERNED , WE FIND THAT THE LD. COMMISSIONER OF INCOME TAX (AP PEALS) PASSED AN EX-PARTE ORDER, WHICH IS UNDER CHALLENGE BEFORE US. IT IS MENTIONED IN THE ORDER THAT THE NOTICE OF HEARING WAS SENT AT THE AVAILABLE ADDRESS PROVIDED IN FORM NO.35 AND THERE IS NO COMPLIANCE TO THE NOTICE. THERE IS NO MENTION IN THE ORDER WHETHER THE ORDER WAS SERVED O R NOT, THUS, WE DEEM IT APPROPRIATE TO REMAND THIS APPEAL TO THE FILE OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW. THE ASSE SSEE BE GIVEN OPPORTUNITY OF BEING HEARD WITH FURTHER LIBER TY TO ITA NO.02/MUM/2018 VINI CONTAINERS LINES PRIVATE LIMITED 7 FURNISH NECESSARY EVIDENCE, IF ANY, IN SUPPORT OF I TS CLAIM. THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STA TISTICAL PURPOSES ONLY. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 17/01/2019. SD/- (N.K. PRADHAN) SD/- (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $%& / VICE PRESIDENT ! ) * MUMBAI; 1 DATED : 17/01/2019 F{X~{T? P.S/. $.. , '()*+,+-) / COPY OF THE ORDER FORWARDED TO : 1. 234 / THE APPELLANT 2. 534 / THE RESPONDENT. 3. 6 6 ) 7' , ( 2 ) / THE CIT, MUMBAI. 4. 6 6 ) 7' / CIT(A)- , MUMBAI 5. 9(:$'$ , 6 2,2 , ! ) * / DR, ITAT, MUMBAI 6. ;%* / GUARD FILE. / BY ORDER, $/ (DY./ASSTT. REGISTRAR) , ! ) * / ITAT, MUMBAI