SHANTILAL L JAIN, MUMBAI V. ITO WD 14(1)(4), MUMBAI

ITA 2123/MUM/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4506 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 30-12-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 10-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V S JADHAVDR
• Keywords: Period of limitation; Competent authority; Condonation of delay

Judgement Text

, - , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI , ! ' , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, ITA NO.2123/MUM/2015 ASSESSMENT YEAR: 2010-11 SHRI SHANTILAL L. JAIN, 2A, JAIHIND BLDG. NO.1, DR. A.M. ROAD, BHULESHWAR, MUMBAI-400002 / VS. INCOME TAX OFFICER, WARD-14(1)(4), ROOM NO.203, EARNEST HOUSE, 2 ND FLOOR, NCPA MARG, MUMBAI-400021 / ASSESSEE / REVENUE P.A. NO. AABPJ9086G $ % & / ASSESSEE BY MS. RITIKA AGARWAL $ % & / REVENUE BY SHRI V.S. JADHAV-DR / DATE OF HEARING 11/01/2016 & / DATE OF ORDER: 11/01/2016 & / O R D E R THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 27/02/2015 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI, THOUGH THE ASSESSEE HAS ALSO RAISED (GROUND NO.5) W ITH RESPECT TO ADDITION OF RS.84,90,169/- U/S 2(22)(E) OF THE ACT ITA NO.2123/MUM/2015 SHRI SHANTILAL L. JAIN 2 BUT BEFORE ME, THE CRUX OF ARGUMENT ADVANCED BY MS. RITIKA AGARWAL IS WITH RESPECT TO NOT CONDONING THE DELAY BY THE LD. FIRST APPELLATE AUTHORITY AND WITHOUT PROVIDING PRO PER OPPORTUNITY, THERE WAS VIOLATION OF PRINCIPLE OF NA TURAL JUSTICE. THE LD. COUNSEL ADVANCED ARGUMENTS WHICH A RE IDENTICAL TO THE GROUND RAISED BY CONTENDING THAT W RONG ADVICE WAS PROVIDED TO THE ASSESSEE BY THE CHARTER ACCOUNTANT FOR WHICH THE ASSESSEE SHOULD NOT BE PEN ALIZED. IT WAS CONTENDED THAT PRIMA FACIE, THE ASSESSEE IS HAVING A GOOD CASE ON MERIT. ON THE OTHER HAND, THE LD. DR, SHRI V.S. JADHAV, DEFENDED THE CONCLUSION ARRIVED AT IN THE I MPUGNED ORDER BY CONTENDING THAT THE CLAIM OF WRONG ADVICE BY THE CHARTER ACCOUNTANT IS MERELY AN AFTERTHOUGHT AND IT WAS THE DUTY OF THE ASSESSEE TO REMAIN VIGILANT AND TO FILE THE APPEAL IN TIME. 2. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. SO FAR AS , THE ISSUE OF NOT CONDONING THE DELAY IS CONCERNED, NO DOUBT F ILING OF AN APPEAL IS A RIGHT GRANTED UNDER THE STATUTE TO THE ASSESSEE AND IS NOT AN AUTOMATIC PRIVILEGE, THEREFORE, THE A SSESSEE IS EXPECTED TO BE VIGILANT IN ADHERING TO THE MANNER A ND MODE IN WHICH THE APPEALS ARE TO BE FILED IN TERMS OF TH E RELEVANT PROVISIONS OF THE ACT. NEVERTHELESS, A LIBERAL APPR OACH HAS TO BE ADOPTED BY THE APPELLATE AUTHORITIES, WHERE DELA Y HAS OCCURRED FOR BONA FIDE REASONS ON THE PART OF THE A SSESSEE OR THE REVENUE IN FILING THE APPEALS. IN MATTERS CONC ERNING THE FILING OF APPEALS, IN EXERCISE OF THE STATUTORY RIG HT, A REFUSAL TO ITA NO.2123/MUM/2015 SHRI SHANTILAL L. JAIN 3 CONDONED THE DELAY CAN RESULT IN A MERITORIOUS MATT ER 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. 2.1. THE HONBLE APEX COURT IN A CELEBRATED DECISI ON IN COLLECTOR, LAND ACQUISITION VS MST. KATIJI & ORS. 1 67 ITR 471 OPINED THAT WHEN TECHNICAL CONSIDERATION AND SUBSTA NTIAL JUSTICE ARE PITTED AGAINST EACH OTHER, THE COURTS A RE 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 N ON- DELIBERATE DELAY. THEREFORE, IT FOLLOWS THAT WHILE CONSIDERING MATTERS RELATING TO THE CONDONATION OF DELAY, JUDIC IOUS AND LIBERAL APPROACH IS TO BE ADOPTED. IF SUFFICIENT C AUSE IS FOUND TO EXIST, WHICH IS BONA-FIDE ONE, AND NOT DUE TO NE GLIGENCE OF THE ASSESSEE, THE DELAY NEEDS TO CONDONED IN SUCH C ASES. THE EXPRESSION SUFFICIENT CAUSE IS ADEQUATELY ELASTIC TO ENABLE THE COURTS TO APPLY LAW IN A MEANINGFUL MANNER, WHI CH SUB- SERVES THE END OF JUSTICE- THAT BEING THE LIFE PURP OSE OF THE EXISTENCE OF THE INSTITUTION OF THE COURTS. WHEN S UBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATION ARE PITTED AGAI NST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED. THE HONBLE APEX COURT IN VEDABHAI VS SA NTARAM 253 ITR 798 OBSERVED THAT INORDINATE DELAY CALLS OF CAUTIOUS APPROACH. THIS MEANS THAT THERE SHOULD BE NO MALAF IDE OR DILATORY TACTICS. SUFFICIENT CAUSE SHOULD RECEIVE LIBERAL ITA NO.2123/MUM/2015 SHRI SHANTILAL L. JAIN 4 CONSTRUCTION TO ADVANCE SUBSTANTIAL JUSTICE. THE H ONBLE APEX COURT IN 167 ITR 471 OBSERVED AS UNDER:- 3. THE LEGISLATURE HAS CONFERRED THE POWER TO COND ONE DELAY BY ENACTING SECTION 51 OF THE LIMITATION ACT OF 1963 I N ORDER TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO PART IES 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 IS C OMMON KNOWLEDGE THAT THIS COURT HAS BEEN MAKING A JUSTIFI ABLY LIBERAL APPROACH IN MATTERS INSTITUTED IN THIS COURT. BUT T HE MESSAGE DOES NOT APPEAR TO HAVE PERCOLATED DOWN TO ALL THE OTHERS COURTS IN THE HIERARCHY. 2.2. 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 SUBSTANTIAL JUST ICE IS OF PRIME IMPORTANCE. THE COURT HELD THAT THE EXPRESSIO N SUFFICIENT CAUSE SHOULD RECEIVE LIBERAL CONSTRUCT ION. 2.3. HAVING MADE THE AFORESAID OBSERVATION, I MAY NOW CONSIDER THE PLEA OF THE ASSESSEE, WHEREIN, IT WAS CONTENDED THAT DUE TO THE WRONG ADVICE/ MISTAKE OF THE COUNSE L, THE ITA NO.2123/MUM/2015 SHRI SHANTILAL L. JAIN 5 ASSESSEE SHOULD NOT SUFFER. BROADLY, I AGREE WITH T HE ARGUMENT OF THE LD. COUNSEL BECAUSE AS PER ARTICLE 265 OF THE CONSTITUTION OF INDIA, ONLY DUE TAXES HAS TO BE LEV IED AND COLLECTED. HONBLE PUNJAB & HARYANA HIGH COURT IN T HE CASE OF MANOJ AHUJA VS ACIT (150 ITR 696)(P &H) ON THE F ACTS AND CIRCUMSTANCES OF THAT CASE, WHILE CONSIDERING THE M ISTAKE OF THE COUNSEL HELD AS UNDER:- IN CASE OF ACQUISITION OF IMMOVABLE PROPERTY UNDER THE PROVISIONS OF THE INCOME-TAX ACT, 1961, CLAUSES (A) AND (B) OF SE CTION 269G PRESCRIBE THE LIMITATION FOR FILING APPEALS AGAINST THE ORDER S OF THE COMPETENT AUTHORITY IN DIFFERENT SITUATIONS. BY A PROVISO TO THESE CLAUSES PROVISION HAS BEEN MADE FOR MAKING AN APPLICATION TO THE APPE LLATE AUTHORITY BEFORE THE EXPIRY OF THE PRESCRIBED PERIOD OF LIMIT ATION FOR PERMISSION TO FILE AN APPEAL BEYOND THE PERIOD OF LIMITATION. BUT NEITHER SECTION 269F NOR ANY OTHER PROVISION IN THE ACT EXCLUDES THE APP LICATION OF THE PROVISIONS OF SECTION 4 TO SECTION 24 OF THE LIMITA TION ACT, 1963, TO APPLICATIONS, APPEALS, ETC., FILED UNDER THE VARIOU S PROVISIONS OF THE ACT. HENCE, THE PROVISIONS OF SECTION 5 OF THE LIMITATIO N ACT APPLY TO AN APPEAL FILED UNDER SECTION 269G. UNDER SECTION 5 OF THE LIMITATION ACT, AN APPEAL MAY BE ADMITTED AFTER THE PRESCRIBED PERI OD IF THE APPELLANT SATISFIES THE COURT THAT HE HAD SUFFICIENT CAUSE FO R NOT PREFERRING THE APPEAL WITHIN SUCH PERIOD. BHARAT RUBBER AND ALLIED INDUSTRIES V. STATE OF PUN JAB [1980] 46 STC 367 ( P&H) [FB] AND PIARE LAL KHUSHBAKHAT RA I V. STATE OF PUNJAB [1971] 27 STC 398 (P&H) APPLIED .IAC V.KEDAR NATH JHUNJHUNWALLA [1982] 133 ITR 746 (PAT) DISSENTED FROM . AN ORDER FOR THE ACQUISITION OF A PROPERTY WAS PASS ED ON NOVEMBER 4, 1974, AGAINST THE TRANSFEREES OF A PROPERTY WHO WER E MINORS. ON DECEMBER 28, 1974, THEIR GUARDIAN, WHO WAS ALSO THE IR COUNSEL, FILED AN APPEAL TO THE TRIBUNAL. AN APPLICATION WAS ALSO MAD E UNDER SECTION 5 OF THE LIMITATION ACT FOR CONDONATION OF DELAY AND IT WAS AVERRED IN THE APPLICATION THAT THE COUNSEL WAS UNDER THE BONA FID E IMPRESSION THAT THE LIMITATION FOR FILING APPEALS WAS SIXTY DAYS. THE T RIBUNAL DISMISSED THE APPLICATION. ON FURTHER APPEAL: HELD, THAT NO LITIGANT SHOULD ORDINARILY SUFFER FOR THE MISTAKE OF HIS COUNSEL AND IT IS AXIOMATIC THAT THE COURT IS TH E GUARDIAN OF MINORS AND IT IS THE DUTY OF THE COURT TO PROTECT TH E INTEREST OF THE MINORS. HENCE, THE DELAY IN PRESENTING THE APPE AL IN THE INSTANT CASE HAD TO BE CONDONED. ITA NO.2123/MUM/2015 SHRI SHANTILAL L. JAIN 6 CASES REFERRED TO: CST V. MADAN LAL DAS & SONS [1976] 38 STC 543 (SC) NIRMAL KHOSLA (SMT.) V. UNION OF INDIA [197 6] AIR 1976 P&H 22 (P&H) IN THE LIGHT OF THE ABOVE AND THE PRINCIPLE OF NATU RAL JUSTICE AND THE ASSESSEE FILED WRITTEN SUBMISSIONS, I AM OF THE VIEW THAT NO PERSON SHOULD BE CONDEMNED UNHEARD, THEREFO RE, THE DELAY IS CONDONED AND THE APPEAL IS REMANDED BACK T O THE FILE OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) TO EXAMINE THE CLAIM OF THE ASSESSEE AND AFTER PROVIDI NG DUE OPPORTUNITY TO THE ASSESSEE DECIDE THE CASE AFRESH IN ACCORDANCE WITH LAW, THUS, THE APPEAL OF THE ASSESS EE IS ALLOWED FOR STATISTICAL PURPOSE ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVE FROM BOTH SIDES AT T HE CONCLUSION OF THE HEARING ON 11/01/2016. SD/- (JOGINDER SINGH) ! ' / JUDICIAL MEMBER MUMBAI; DATED : 11/01/2016 F{X~{T? P.S / ! &($)!*+,&+-* / COPY OF THE ORDER FORWARDED TO : 1. '#$%& / THE APPELLANT 2. '(%& / THE RESPONDENT. 3. )) * ( '#$ ) / THE CIT, MUMBAI. 4. )) * / CIT(A)- , MUMBAI 5. -./' , )'#$' 1 , / DR, ITAT, MUMBAI ITA NO.2123/MUM/2015 SHRI SHANTILAL L. JAIN 7 6. /23$ / GUARD FILE. &( / BY ORDER, (-#' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI