NALESHWAR BUILDER & DEVELOPERS, THANE V. ACIT CIR 4, MUMBAI

ITA 2106/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2038 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 27-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIPH
• Keywords: Opportunity of being heard; Condonation of delay
• Section: 144

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B , MUMBAI , , , BEFORE SHRI JOGINDER SINGH, J UDICIAL M EMBER , A ND SHRI RAM IT KOCHAR , A CCOUNTANT M EMBER ITA NO . 2106 /MUM/20 14 ASSESSMENT YEAR: 20 1 0 - 1 1 M/S. NALESHWAR BUILDERS & DEVELOPERS, FLAT NO. 301, B - WING, 3 RD FLOOR, FESTIVAL COMPLEX, ACHOLE ROAD, NALLASOPARA EAST DIST. THANE 401 209 / VS. ACIT, CIRCLE - 4, AAYKAR BH AWAN, M.K. MARG, NEW MARINE LINES, MUMBAI. ( / REVENUE) ( /ASSESSEE) P.A. NO. ADQPN 4963 L / REVENUE BY SHRI NEIL PHILIPH - DR / ASSESSEE BY NONE / DATE OF HEARING : 0 1 /1 1 /201 6 / DATE OF ORDER : 0 2 /1 1 /2016 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 11 /0 2 /201 3 OF THE LD. FIRST APPELLATE AUTHORITY, THANE . NAL ESHWAR B UILDER & DEVELOPERS ITA NO S . 2106 /MUM/2014 2 2. THE ONLY GROUND RAISED BY THE AS SESSEE PERTAINS TO CONDONATION OF DELAY AND NOT GIVING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 2.1. THE ASSESSEE IS FILED APPLICATION FOR CONDONATION OF DELAY ON THE REASONS STATED IN THE APPLICATION. THE LD. DR SHRI NEIL PHILIPH CONTENDED THAT DELAY HAS TO BE EXPLAINED BY THE ASSESSEE . 2.2 WE HAVE CONSIDERED THE SUBMISSIONS OF LD. DR AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW OF THE ASSERTIONS MADE IN THE APPLICATION , SO FAR AS, CONDONATION OF DELAY IS CONCERNED N O DOUBT FILING OF AN APPEAL IS A RIGHT GRANTED UNDER THE STATUTE TO THE ASSESSEE AND IS NOT AN AUTOMATIC PRIVILEGE, THEREFORE, THE ASSESSEE IS EXPECTED TO BE VIGILANT IN ADHERING TO THE MANNER AND MODE IN WHICH THE APPEAL IS TO BE FILED IN TERMS OF THE RELEVANT PROVISIONS O F 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 T HE REVENUE IN FILING THE APPEAL . IN MATTERS CONCERNING THE FILING OF APPEAL, IN EXER CISE OF THE STATUTORY RIGHT, A REFUSAL TO CONDONED THE DELAY CAN RESULT IN A MERITORIOUS MATTER BEING THROWN OUT AT THE THRESHOLD, WHICH MAY LEAD TO MISCARRIAGE OF JUSTICE. THE JUDICIARY IS RESPECTED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE IN JUSTICE ON TE CHNICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. NAL ESHWAR B UILDER & DEVELOPERS ITA NO S . 2106 /MUM/2014 3 2. 3 . THE HONBLE APEX COURT IN A CELEBRATED DECISION IN COLLECTOR, LAND ACQUISITION VS MST. KATIJI & ORS. 167 ITR 471 OPINED THAT WHEN TECHNICAL CONSIDERATION AND S UBSTANTIAL JUSTICE ARE PITTED AGAINST EACH OTHER, THE COURTS ARE EXPECTED TO FURTHER THE CAUSE OF SUBSTANTIAL JUSTICE. THIS IS FOR THE REASON THAT AN OPPOSING PARTY, IN A DISPUTE, CANNOT HAVE A VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON - DELIBE RATE DELAY. THEREFORE, IT FOLLOWS THAT WHILE CONSIDERING MATTERS RELATING TO THE CONDONATION OF DELAY, JUDICIOUS AND LIBERAL APPROACH IS TO BE ADOPTED. IF SUFFICIENT CAUSE IS FOUND TO EXIST, WHICH IS BONA - FIDE ONE, AND NOT DUE TO NEGLIGENCE OF THE ASSESS EE, THE DELAY NEEDS TO CONDONED IN SUCH CASES. THE EXPRESSION SUFFICIENT CAUSE IS ADEQUATELY ELASTIC TO ENABLE THE COURTS TO APPLY LAW IN A MEANINGFUL MANNER, WHICH SUB - SERVES THE END OF JUSTICE - THAT BEING THE LIFE PURPOSE OF THE EXISTENCE OF THE INSTI TUTION OF THE COURTS. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATION ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED. THE HONBLE APEX COURT IN VEDABHAI VS SANTARAM 253 ITR 798 OBSERVED THAT INORDINATE DELAY CALLS OF CAUTIOUS APPROACH. THIS MEANS THAT THERE SHOULD BE NO MALAFIDE OR DILATORY TACTICS. SUFFICIENT CAUSE SHOULD RECEIVE LIBERAL CONSTRUCTION TO ADVANCE SUBSTANTIAL JUSTICE. THE HONBLE APEX COURT IN 167 ITR 471 OBSERVED AS UNDER: - 3. THE LEGISLAT URE HAS CONFERRED THE POWER TO CONDONE DELAY BY ENACTING SECTION 51 OF THE LIMITATION ACT OF 1963 IN ORDER TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO PARTIES BY DISPOSING OF MATTERS ON DE MERITS. THE EXPRESSION SUFFICIENT CAUSE NAL ESHWAR B UILDER & DEVELOPERS ITA NO S . 2106 /MUM/2014 4 EMPLOYED BY THE LEG ISLATURE IS ADEQUATELY ELASTIC 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 IS COMMON KNOWLEDGE THAT THIS COURT HAS BEEN MAKIN G A JUSTIFIABLY LIBERAL APPROACH IN MATTERS INSTITUTED IN THIS COURT. 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 VAIJAYANA TABAI BABURAO PATIL VS. SHANTARAM BABURAO PATIL 253 ITR 798 HELD THAT THE COURT 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 SUBSTANTIAL JUSTICE IS OF PRIME IMPORTANCE. THE COURT HELD THAT THE EXPRESSION SUFFICIENT CAUSE SHOULD RECEIVE LIBERAL CONSTRUCTION. 2. 5 . THE DECISION OF THE TRIBUNAL IN PEOPLE INFOCOM PRIVATE LTD. V/S CIT (ITA NO.210/MUM/2013) ORDER DATED 19/05/2016, M/S NEUTRON SERVICES CENTRE PVT. LTD VS ITO (ITA NO.1180/MUM/2012) ORDER DATED 18/02/2016, SHRI 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. 2.6 IT IS ALSO NOTED THAT THE ASSESSMENT WAS FRAMED UNDER SECTION 144 OF THE ACT BY THE ASSESSING OFFICER. ADMITTEDLY, THE ASSESSEE DID NOT APPEAR BEFORE THE LD. COMMIS SIONER OF INCOME TAX (APPEAL) , IN THE LIGHT OF THE OBSERVATION AND NAL ESHWAR B UILDER & DEVELOPERS ITA NO S . 2106 /MUM/2014 5 VARIOUS DECISIONS DISCUSSED HEREINABOVE, INCLUDING FROM HONBLE APEX COURT, THE CIRCUMSTANCES NARRATED IN THE APPLICATION , WHEREIN, HE HAS STATED THE REASONS WHICH CAUSED THE DELAY, THEREFO RE, THE DELAY IS CONDONED. THE LD. COMMISSIONER OF INCOME TAX (APPEAL) IS DIRECTED TO ADJUDICATE THE APPEAL OF THE ASSESSEE ON MERIT, AFRESH, IN ACCORDANCE WITH LAW. THE ASSESSEE BE GIVEN OPPORTUNITY OF BEING HEARD WITH FURTHER LIBERTY TO FURNISH EVIDENCE , IF ANY, IN SUPPORT OF ITS CLAIM. THE ASSESSEE IS ALSO DIRECTED TO REMAIN VIGIL ANT IN FUTURE. THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE ONLY FOR FRESH ADJUDICATION. T HIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. DR AT T H E CONCLUSION OF THE HEARING ON 0 1 /1 1 /2016 . S D/ - SD/ - ( RAMIT KOCHAR ) (JOGINDER SINGH) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED : 0 2 / 1 1 /201 6 VR/ - . . NAL ESHWAR B UILDER & DEVELOPERS ITA NO S . 2106 /MUM/2014 6 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT, MUMBAI. 4. / CIT(A) - , MUMBAI 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBA I,