SushilKashmirilal Agarwal, Pune V. Assistant Commissioner of Income-tax,

ITA 2074/PUN/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0594 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 11 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 03-08-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 19-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL
• Keywords: Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E , , !'#'' $ , % & BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM / ITA NO. 2074/PN/2014 %' ( ')( / ASSESSMENT YEAR : 2006-07 SUSHIL KASHMIRILAL AGARWAL, BASERA 46/25, PCNTDA, NIGDI, PUNE-411044 PAN : AARPA0355K ....... / APPELLANT ' / V/S. ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE 9, PUNE / RESPONDENT ASSESSEE BY : SHRI PRAMOD SHINGTE REVENUE BY : SHRI P.L. KUREEL / DATE OF HEARING : 20-10-2016 / DATE OF PRONOUNCEMENT : 21-10-2016 * / ORDER PER VIKAS AWASTHY, JM : THE APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILING THE OR DER OF COMMISSIONER OF INCOME TAX (APPEALS)-V, PUNE DATED 17-06- 2014 FOR THE ASSESSMENT YEAR 2006-07. THE FIRST APPEAL OF ASSESS EE WAS DISMISSED BY COMMISSIONER OF INCOME TAX (APPEALS) ON THE GR OUND OF LIMITATION ALONE. 2 ITA NO. 2074/PN/2014, A.Y. 2006-07 2. THE PRESENT APPEAL HAS BEEN FILED WITH THE DELAY OF 76 DAYS. THE LD. AR OF THE ASSESSEE HAS FILED AN APPLICATION SEEKING CONDO NATION OF DELAY IN FILING OF APPEAL. THE DELAY IN FILING OF APPEAL HAS BEEN ATTRIBUTED TO PREOCCUPATION OF THE AUTHORIZED REPRESENT ATIVE OF THE ASSESSEE IN COMPLETING TAX AUDIT AND FILING OF RETURNS. THE ASSESSEE HAD ALLEGEDLY RECEIVED IMPUGNED ORDER ON 06-07-2014. ACCORDINGLY , THE APPEAL SHOULD HAVE BEEN FILED ON OR BEFORE 05-09-2014. T HE ASSESSEE FILED APPEAL ON 19-11-2014. THE LD. AR OF THE ASSESSEE CO NTENDED THAT THE DELAY IN FILING OF THE APPEAL WAS NOT INTENTIONAL OR WILLFUL, THE DELAY IN FILING OF APPEAL WAS CAUSED DUE TO BONAFIDE REASONS MENT IONED IN THE APPLICATION. 3. THE LD. DR SUBMITTED THAT THE ASSESSEE HAS NOT GIVEN COGENT REASONS FOR THE DELAY IN FILING OF THE PRESENT APPEAL. PREOC CUPATION OF AUTHORIZED REPRESENTATIVE CANNOT BE CONSIDERED AS SUFFICIE NT REASON FOR CONDONING DELAY. THE FIRST APPEAL FILED BY ASSESSEE BEFORE COMMISSIONER OF INCOME TAX (APPEALS) WAS DISMISSED AS THE S AME WAS ALSO BARRED BY LIMITATION. THE LD. DR PRAYED FOR DISMISSING TH E APPEAL OF ASSESSEE IN LIMINE ON GROUND OF LIMITATION. 4. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESEN TATIVES OF RIVAL SIDES. A PERUSAL OF THE PETITION FOR CONDONATION OF D ELAY SHOWS THAT THE DELAY HAS BEEN ATTRIBUTED TO THE PREOCCUPATIO N OF THE TAX CONSULTANT OF THE ASSESSEE IN COMPLETING TAX AUDITS AND FILIN G OF RETURNS. IT IS A WELL SETTLED LAW THAT THE EXPLANATION FURN ISHED FOR CONDONING THE DELAY SHOULD BE ACCEPTED AS A MATTER OF P RINCIPLE. HYPER TECHNICAL VIEW OR PEDANTIC APPROACH SHOULD NOT BE ADOPTE D TO REJECT THE 3 ITA NO. 2074/PN/2014, A.Y. 2006-07 EXPLANATION FURNISHED BY THE ASSESSEE WHERE STAKES ARE HIGH AND ARGUABLE POINTS OF FACTS AND LAW ARE INVOLVED IN THE CASE. 5. THE HON'BLE SUPREME COURT OF INDIA IN THE CASE OF N. BALAKRISHNAN VS. M. KRISHNAMURTHY REPORTED AS (1998) 7 SCC 123 : AIR 1998 SC 3222 WHILE DEALING WITH THE ISSUE OF CONDONATIO N OF DELAY HAS HELD AS UNDER : 9. IT IS AXIOMATIC THAT CONDONATION OF DELAY IS A MATTER OF DISCRETION OF THE COURT. SECTION 5 OF THE LIMITATION ACT DOES N OT SAY THAT SUCH DISCRETION CAN BE EXERCISED ONLY IF THE DELAY IS WI THIN A CERTAIN LIMIT. LENGTH OF DELAY IS NO MATTER, ACCEPTABILITY OF THE EXPLANATION IS THE ONLY CRITERION. SOMETIMES DELAY OF THE SHORTEST RANGE MA Y BE UNCONDONABLE DUE TO A WANT OF ACCEPTABLE EXPLANATION WHEREAS IN CERTAIN OTHER CASES, DELAY OF A VERY LONG RANGE CAN BE CONDONED AS THE E XPLANATION THEREOF IS SATISFACTORY. ONCE THE COURT ACCEPTS THE EXPLANATIO N AS SUFFICIENT, IT IS THE RESULT OF POSITIVE EXERCISE OF DISCRETION AND NORMA LLY THE SUPERIOR COURT SHOULD NOT DISTURB SUCH FINDING, MUCH LESS IN REVIS IONAL JURISDICTION, UNLESS THE EXERCISE OF DISCRETION WAS ON WHOLLY UNT ENABLE GROUNDS OR ARBITRARY OR PERVERSE. BUT IT IS A DIFFERENT MATTER WHEN THE FIRST COURT REFUSES TO CONDONE THE DELAY. IN SUCH CASES, THE SU PERIOR COURT WOULD BE FREE TO CONSIDER THE CAUSE SHOWN FOR THE DELAY AFRE SH AND IT IS OPEN TO SUCH SUPERIOR COURT TO COME TO ITS OWN FINDING EVEN UNTRAMMELED BY THE CONCLUSION OF THE LOWER COURT. 10. THE PRIMARY FUNCTION OF A COURT IS TO ADJUDICAT E THE DISPUTE BETWEEN THE PARTIES AND TO ADVANCE SUBSTANTIAL JUST ICE. THE TIME- LIMIT FIXED FOR APPROACHING THE COURT IN DIFFERENT SITUAT IONS IS NOT BECAUSE ON THE EXPIRY OF SUCH TIME A BAD CAUSE WOULD TRANSFORM INTO A GOOD CAUSE.' 11. RULES OF LIMITATION ARE NOT MEANT TO DESTROY TH E RIGHTS OF PARTIES. THEY ARE MEANT TO SEE THAT PARTIES DO NOT RESORT TO DILATORY TACTICS, BUT SEEK THEIR REMEDY PROMPTLY. THE OBJECT OF PROVIDING A LEGAL REMEDY IS TO REPAIR THE DAMAGE CAUSED BY REASON OF LEGAL INJURY. THE LAW OF LIMITATION FIXES A LIFESPAN FOR SUCH LEGAL REMEDY FOR THE REDR ESS OF THE LEGAL INJURY SO SUFFERED. TIME IS PRECIOUS AND WASTED TIME WOULD NEVER REVISIT. DURING THE EFFLUX OF TIME, NEWER CAUSES WOULD SPROU T UP NECESSITATING NEWER PERSONS TO SEEK LEGAL REMEDY BY APPROACHING T HE COURTS. SO A 4 ITA NO. 2074/PN/2014, A.Y. 2006-07 LIFESPAN MUST BE FIXED FOR EACH REMEDY. UNENDING PE RIOD FOR LAUNCHING THE REMEDY MAY LEAD TO UNENDING UNCERTAINTY AND CON SEQUENTIAL ANARCHY. THE LAW OF LIMITATION IS THUS FOUNDED ON PU BLIC POLICY. IT IS ENSHRINED IN THE MAXIM INTEREST REIPUBLICAE UP SIT FINIS LITIUM (IT IS FOR THE GENERAL WELFARE THAT A PERIOD BE PUT TO LITIGATION) . RULES OF LIMITATION ARE NOT MEANT TO DESTROY THE RIGHTS OF THE PARTIES. THE Y ARE MEANT TO SEE THAT PARTIES DO NOT RESORT TO DILATORY TACTICS BUT SEEK THEIR REMEDY PROMPTLY. THE IDEA IS THAT EVERY LEGAL REMEDY MUST BE KEPT AL IVE FOR A LEGISLATIVELY FIXED PERIOD OF TIME. 12. A COURT KNOWS THAT REFUSAL TO CONDONE DELAY WOU LD RESULT IN FORECLOSING A SUITOR FROM PUTTING FORTH HIS CAUSE. THERE IS NO PRESUMPTION THAT DELAY IN APPROACHING THE COURT IS ALWAYS DELIB ERATE. THIS COURT HAS HELD THAT THE WORDS 'SUFFICIENT CAUSE' UNDER SECTIO N 5 OF THE LIMITATION ACT SHOULD RECEIVE A LIBERAL CONSTRUCTION SO AS TO ADVANCE SUBSTANTIAL JUSTICE VIDE SHAKUNTALA DEVI JAIN V. KUNTAL KUMARI (1969) 1 SCR 1006 AND STATE OF W.B. V. ADMINISTRATOR, HOWRAH MUNICIPA LITY(1972) 1 SCC 366. 13. IT MUST BE REMEMBERED THAT IN EVERY CASE OF DEL AY, THERE CAN BE SOME LAPSE ON THE PART OF THE LITIGANT CONCERNED. T HAT ALONE IS NOT ENOUGH TO TURN DOWN HIS PLEA AND TO SHUT THE DOOR AGAINST HIM. IF THE EXPLANATION DOES NOT SMACK OF MALA FIDES OR IT IS NOT PUT FORTH AS PART OF A DILATORY STRATEGY, THE COURT MUST SHOW UTMOST CONSIDERATION TO THE SUITOR. BUT WHEN THERE IS REASONABLE GROUND TO THINK THAT THE D ELAY WAS OCCASIONED BY THE PARTY DELIBERATELY TO GAIN TIME, THEN THE CO URT SHOULD LEAN AGAINST ACCEPTANCE OF THE EXPLANATION. WHILE CONDONING THE DELAY, THE COURT SHOULD NOT FORGET THE OPPOSITE PARTY ALTOGETHER. IT MUST BE BORNE IN MIND THAT HE IS A LOSER AND HE TOO WOULD HAVE INCURRED Q UITE LARGE LITIGATION EXPENSES' 6. THE HON'BLE SUPREME COURT OF INDIA IN THE CASE OF RAM NATH SAO @ RAM NATH SAHU AND OTHERS REPORTED AS 2002 (3) SCC 1 95 HAS REITERATED THE LAW LAID DOWN BY THE HON'BLE APEX COURT IN THE CASE OF N. BALAKRISHNAN VS. M. KRISHNAMURTHY (SUPRA). THE HON'BLE APE X COURT HELD: THAT THE EXPRESSION 'SUFFICIENT CAUSE' WITHIN THE MEANING OF SECTION 5 OF THE ACT OR ORDER 22 RULE 9 OF THE CODE OR ANY OTHER SIMILAR PROVISION 5 ITA NO. 2074/PN/2014, A.Y. 2006-07 SHOULD RECEIVE A LIBERAL CONSTRUCTION SO AS TO ADVA NCE SUBSTANTIAL JUSTICE WHEN NO NEGLIGENCE OR INACTION OR WANT OF BONA FIDE IS IMPUTABLE TO A PARTY. IN A PARTICULAR CASE WHETHER EXPLANATION FUR NISHED WOULD CONSTITUTE 'SUFFICIENT CAUSE' OR NOT WILL BE DEPEND ANT UPON FACTS OF EACH CASE. THERE CANNOT BE A STRAITJACKET FORMULA FOR AC CEPTING OR REJECTING EXPLANATION FURNISHED FOR THE DELAY CAUSED IN TAKIN G STEPS. BUT ONE THING IS CLEAR THAT THE COURTS SHOULD NOT PROCEED WITH TH E TENDENCY OF FINDING FAULT WITH THE CAUSE SHOWN AND REJECT THE PETITION BY A SLIPSHOD ORDER IN OVER JUBILATION OF DISPOSAL DRIVE. ACCEPTANCE OF EX PLANATION FURNISHED SHOULD BE THE RULE AND REFUSAL AN EXCEPTION MORE SO WHEN NO NEGLIGENCE OR INACTION OR WANT OF BONA FIDE CAN BE IMPUTED TO THE DEFAULTING PARTY. ON THE OTHER HAND, WHILE CONSIDERING THE MATTER THE COURTS SHOULD NOT LOSE SIGHT OF THE FACT THAT BY NOT TAKING STEPS WIT HIN THE TIME PRESCRIBED A VALUABLE RIGHT HAS ACCRUED TO THE OTHER PARTY WHICH SHOULD NOT BE LIGHTLY DEFEATED BY CONDONING DELAY IN A ROUTINE LIKE MANNE R. HOWEVER, BY TAKING A PEDANTIC AND HYPER TECHNICAL VIEW OF THE M ATTER THE EXPLANATION FURNISHED SHOULD NOT BE REJECTED WHEN STAKES ARE HI GH AND/OR ARGUABLE POINTS OF FACTS AND LAW ARE INVOLVED IN THE CASE, C AUSING ENORMOUS LOSS AND IRREPARABLE INJURY TO THE PARTY AGAINST WHOM TH E LIS TERMINATES EITHER BY DEFAULT OR INACTION AND DEFEATING VALUABLE RIGHT OF SUCH A PARTY TO HAVE THE DECISION ON MERIT. WHILE CONSIDERING THE M ATTER, COURTS HAVE TO STRIKE A BALANCE BETWEEN RESULTANT EFFECT OF THE OR DER IT IS GOING TO PASS UPON THE PARTIES EITHER WAY. THUS, IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE PRESEN T CASE AND LAW LAID DOWN BY THE HON'BLE APEX COURT, WE ARE INCLINE D TO CONDONE THE DELAY OF 76 DAYS IN FILING OF THE APPEAL. ACCOR DINGLY, THE DELAY IN FILING OF THE APPEAL IS CONDONED AND THE APPEAL IS AD MITTED TO BE HEARD AND DISPOSED OF ON MERITS. 7. THE BRIEF FACTS OF THE CASE AS EMANATING FROM RECORDS ARE: THE ASSESSEE IS AN INDIVIDUAL AND IS ENGAGED IN PROPRIETARY BUS INESS OF WEIGHBRIDGE UNDER THE NAME AND STYLE OF GOYAL WEIGHBRIDGE. THE ASSESSEE HAS ALSO RETURNED INCOME UNDER THE HEAD HOU SE PROPERTY AND OTHER SOURCES. DURING THE COURSE OF SCRUTINY ASS ESSMENT 6 ITA NO. 2074/PN/2014, A.Y. 2006-07 PROCEEDINGS THE ASSESSING OFFICER MADE ADDITIONS/DISALLOWANCE S ON ACCOUNT OF : I. INTEREST ` 2,07,183/- AND II. REPAYMENT OF UNSECURED LOANS ` 1,95,000/-. UNDISPUTEDLY, THE ASSESSEE DID NOT FILE ANY APPEAL AGAINST THE QUANTUM ADDITION. THE ASSESSING OFFICER INITIATED PENALTY PRO CEEDINGS U/S. 271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFER RED TO AS THE ACT) IN RESPECT OF ADDITIONS MADE. THE ASSESSING OFFIC ER VIDE ORDER DATED 26-06-2009 LEVIED PENALTY OF ` 1,40,000/- U/S. 271(1)(C) FOR CONCEALMENT OF INCOME OR FURNISHING INACCURATE PARTICULARS O F INCOME. AGAINST THE ORDER LEVYING PENALTY, THE ASSESSEE FILED APPEA L BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). HOWEVER, THE FIRST APP EAL FILED BY THE ASSESSEE WAS TIME BARRED BY 918 DAYS. THE COM MISSIONER OF INCOME TAX (APPEALS) DISMISSED THE APPEAL OF THE ASSESSEE AS THE REASONS FURNISHED BY THE ASSESSEE FOR SEEKING CONDONATIO N OF DELAY IN HIS OPINION WERE TOO GENERAL. NOW, THE ASSESSEE IS IN SECO ND APPEAL BEFORE THE TRIBUNAL ASSAILING THE FINDINGS OF COMMISSIONER OF IN COME TAX (APPEALS) IN DISMISSING THE APPEAL ON THE GROUND OF LIM ITATION ALONE. 8. SHRI PRAMOD SHINGTE APPEARING ON BEHALF OF THE ASSESSE E SUBMITTED THAT THE DELAY IN FILING OF APPEAL BEFORE THE COMMIS SIONER OF INCOME TAX (APPEALS) WAS UNINTENTIONAL. THE MAIN REASON FO R DELAY WAS THAT THE ACCOUNTANT WHO WAS DEALING WITH THE TAX MATTERS HAD MISPLACED THE ORDER AND DID NOT INFORM THE ASSESSEE. SINC E, THE ACCOUNTANT FAILED TO DELIVER THE PENALTY ORDER TO THE TAX CONSULTANT, THE APPEAL COULD NOT BE FILED IN TIME. THE ASSESSEE HAS PRIMA FA CIE GOOD 7 ITA NO. 2074/PN/2014, A.Y. 2006-07 CASE ON MERITS AND PENALTY LEVIED BY THE ASSESSING OFFICER IS LIABLE TO BE SET ASIDE ON MERITS. THEREFORE, THERE WAS NO INTENTION O N THE PART OF THE ASSESSEE NOT TO FILE THE APPEAL. FURTHER, THE ASSESS EE WOULD NOT HAVE GAINED BY NOT FILING APPEAL AGAINST THE PENALTY ORDER . THE LD. AR SUBMITTED THAT THE HON'BLE SUPREME COURT OF INDIA IN NUM BER OF CASES HAVE HELD THAT CONDONATION OF DELAY SHOULD BE A RULE AND REFUSAL AN EXCEPTION. THE LD. AR OF THE ASSESSEE FURTHER IN SUPPORT OF HIS SUBMISSIONS PLACED RELIANCE ON THE DECISION OF HON'BLE SUPRE ME COURT OF INDIA IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. MST. KA TIJI AND OTHERS REPORTED AS 167 ITR 471 (SC). THE LD. AR SUBM ITTED THAT THE COMMISSIONER OF INCOME TAX (APPEALS) SHOULD HAVE BEEN CON SIDERATE IN ACCEPTING THE EXPLANATION FURNISHED BY ASSESSEE FOR CONDO NING DELAY IN FILING OF THE APPEAL. 9. ON THE OTHER HAND SHRI P.L. KUREEL REPRESENTING THE D EPARTMENT VEHEMENTLY SUPPORTED THE FINDINGS OF COMMISSIONER OF INCOM E TAX (APPEALS) IN DISMISSING THE APPEAL OF THE ASSESSEE ON THE GR OUND OF LIMITATION. THE LD. DR SUBMITTED THAT NO VALID EXPLANATION WAS FURNISHED BY THE ASSESSEE FOR CONDONING 918 DAYS DELAY. THE INORDINATE DELAY OF 918 DAYS IN FILING OF APPEAL BEFORE THE COM MISSIONER OF INCOME TAX (APPEALS) CANNOT BE CONDONED WITHOUT EXPLA INING EACH AND EVERY DAYS DELAY. 10. BOTH SIDES HEARD. A PERUSAL OF THE IMPUGNED ORDER S HOWS THAT THE REASONS GIVEN BY ASSESSEE FOR 918 DAYS DELAY IN FILING OF APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) IS AS UNDER: I AM SUBMITTING HERE WITH AN APPEAL AGAINST THE ORDER U/ S. 271(1)(C) OF THE INCOME TAX ACT, 1961 DT. 26/06/2009. THIS APPEA L IS ADMITTEDLY DELAYED BY 903 DAYS. MAIN REASON FOR THIS DELAY WAS THAT OUR 8 ITA NO. 2074/PN/2014, A.Y. 2006-07 ACCOUNTANT HAS MISFILED THIS PARTICULAR ORDER AND D ID NOT DELIVER THE SAME TO THE OFFICE OF OUR TAX CONSULTANT OR FILING OF APPEAL AND MAINLY DUE TO THIS REASON WE COULD NOT FILE THE APPEAL IN TIME. THIS BEING INADVERTENT ERROR AND APPELLANT WILL NOT DO SUCH ER ROR INTENTIONALLY BECAUSE IT IS NOT IN HIS BENEFIT AND THEREFORE IT I S REQUESTED TO CONDONE THE DELAY AND ACCEPT OUR APPEAL. I PRAY BEFORE YOU TO CONSIDER THE DELAY IN FILING T HE APPEAL AGAINST THE ORDER PASSED. THE REASONS GIVEN BY THE ASSESSEE FOR CONDONING DELAY I S NO DOUBT GENERIC. THE ASSESSEE HAD NOT FURNISHED THE DETA ILS AS TO WHEN THE PENALTY ORDER WAS RECEIVED AND WHEN THE SAID ORDER WAS HANDED OVER TO THE ACCOUNTANT TO BE GIVEN TO THE TAX CONSULT ANT FOR FILING OF THE APPEAL. NO DETAILS ARE GIVEN AS TO WHEN IT CAME TO THE KNOWLEDGE OF THE ASSESSEE THAT THE APPEAL HAS NOT BEEN FILED AGAINST THE PENALTY ORDE R. 11. THE HON'BLE APEX COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. MST. KATIJI AND OTHERS (SUPRA) HAS HELD THAT LIBERAL AND MEANINGFUL INTERPRETATION SHOULD BE GIVEN TO THE EXPRESSION SUFFICIENT CAUSE. WHILE CONSIDERING THE REASONS FOR CONDONATION OF DELAY, THE SUFFICIENT CAUSE EXPLAINED BY THE APPELLANT SHOULD NOT BE REJECTED BY TAKING A HYPER TECHNICAL VIEW. REFUSAL TO CONDONE THE DELAY AT TIME CAN RESULT IN IRREPARABLE LOSS TO THE APPELLANT AGAINST WHOM THE LIS TE RMINATES. THE HON'BLE APEX COURT HAS LAID DOWN THE PRINCIPLES TO BE FOLLOWED WHILE CONSIDERING THE DELAY APPLICATIONS. THE SAME READS AS UNDER : 1. ORDINARILY, A LITIGANT DOES NOT STAND TO BENEFI T 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 DEFEATED. AS AGAINST THIS, WHEN DELAY IS CONDONED, THE HIGHEST THAT CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERITS A FTER HEARING THE PARTIES. 9 ITA NO. 2074/PN/2014, A.Y. 2006-07 3. EVERY DAY'S DELAY MUST BE EXPLAINED DOES NOT ME AN THAT PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOU R'S DELAY, EVERY SECOND'S DELAY? THE DOCTRINE MUST BE APPLIED IN A R ATIONAL, COMMON SENSE AND PRAGMATIC MANNER. 4. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERA TIONS 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 SERIOUS RISK. 6. IT MUST BE GRASPED THAT THE JUDICIARY IS RESPECT ED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHN ICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. 12. IN THE PRESENT CASE THE APPEAL BEFORE THE COMMISSIO NER OF INCOME TAX (APPEALS) HAS BEEN FILED WITH INORDINATE DELAY OF M ORE THAN 900 DAYS. HOWEVER, KEEPING IN VIEW THE MANDATE OF LIBERAL APPROACH SET BY THE HON'BLE SUPREME COURT OF INDIA, WE DEEM IT AP PROPRIATE TO REMIT THIS APPEAL BACK TO THE FILE OF COMMISSIONER OF INCOME TAX (APPEALS) WITH A DIRECTION TO DECIDE APPEAL OF ASSESSEE ON MERITS. HOWEVER, WE ARE OF THE CONSIDERED VIEW THAT THIS IS A FIT CASE FOR LEVY OF COST ON THE ASSESSEE/APPELLANT FOR NOT PURSUING HIS CAUS E DILIGENTLY. TAKING HOLISTIC VIEW OF THE MATTER, IN OUR CONSIDERED OPINION COST OF ` 10,000/- IS JUST AND PROPER. 13. THE COST SHALL BE RECOVERED FROM THE ASSESSEE, IN AC CORDANCE WITH RULE 32A(2) OF THE INCOME TAX APPELLATE TRIBUNAL RULE, 1963. THE COMMISSIONER OF INCOME TAX (APPEALS) IS DIRECTED TO CONSIDE R THE 10 ITA NO. 2074/PN/2014, A.Y. 2006-07 APPEAL OF THE ASSESSEE ON MERITS AFTER AFFORDING SUFFICIENT O PPORTUNITY OF HEARING, SUBJECT TO PAYMENT OF AFORESAID COST. 14. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSE. ORDER PRONOUNCED ON FRIDAY, THE 21 ST DAY OF OCTOBER, 2016. SD/- SD/- ( . . / R.K. PANDA) ( ! ' / VIKAS AWASTHY) #' / ACCOUNTANT MEMBER $ % #' / JUDICIAL MEMBER / PUNE; &# / DATED : 21 ST OCTOBER, 2016 RK *+,%-.#/#)- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ' () / THE CIT(A)-V, PUNE 4. ' / THE CIT-V, PUNE 5. !*+ %%,- , ,- , . ./0 , / DR, ITAT, B BENCH, PUNE. 6. + 1 23 / GUARD FILE. // ! % // TRUE COPY// #4 / BY ORDER, %5 ,0 / PRIVATE SECRETARY, ,- , / ITAT, PUNE