Arti Hiren Shah, Ahmedabad V. The ITO, Ward-6(1)(4), Ahmedabad

ITA 2364/AHD/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7272 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 04-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: HIREN J SHAH

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI PRAMOD KUMAR, HONBLE VICE-PRESIDENT AND SHRI RAJPAL YADAV, HONBLE JUDICIAL MEMBER ITA.NO.2364/AHD/2018 / ASSTT.YEAR : 2010-11 ARTI HIREN SHAH 2, P&T SOCIETY B/S.KASHI VISHWANATH MAHADEV NR.CROSSING, MANINAGAR EAST AHMEDABAD 80008. VS ITO, WARD - 6(1)(4) AHMEDABAD. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI HIREN J. SHAH REVENUE BY : SHRI VINOD TANWANI, SR.DR / DATE OF HEARING : 15/07/2019 / DATE OF PRONOUNCEMENT: 26/07/2019 !'/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST O RDER OF THE LD.CIT(A)-6, AHMEDABAD DATED 18.10.2018. 2. IN THE FIRST GROUND OF APPEAL, THE ASSESSEE HAS PLEADED THAT HER APPEAL WAS DISMISSED BY THE LD.CIT(A) ON ACCOUNT OF LIMITA TION. 3. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, WE HAVE GONE THROUGH THE RECORD CAREFULLY. APPEAL OF THE ASSESSEE WAS BARRE D BY 76 DAYS LIMITATION BEFORE THE LD.CIT(A). THE LD.CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE ITA NO.2364/AHD/2018 2 ON THE GROUND THAT SHE HAS NOT FILED SPECIFIC APPLI CATION FOR CONDONATION OF DELAY, RATHER SIMPLY PLEADED IN THE STATEMENT OF FA CTS. 4. WE FIND THAT S UB-SECTION 5 OF SECTION 253 OF THE ACT CONTEMPLATES THAT THE TRIBUNAL MAY ADMIT AN APPEAL OR PERMIT FIL ING OF MEMORANDUM OF CROSS-OBJECTIONS AFTER EXPIRY OF RELEVANT PERIOD , IF IT IS SATISFIED THAT THERE WAS A SUFFICIENT CAUSE FOR NOT PRESENTING IT WITHIN THAT PERIOD. THIS EXPRESSION SUFFICIENT CAUSE EMPLOYED IN THE SECTI ON HAS ALSO BEEN USED IDENTICALLY IN SUB-SECTION 3 OF SECTION 249 OF INCO ME TAX ACT, WHICH PROVIDES POWERS TO THE LD.COMMISSIONER TO CONDONE T HE DELAY IN FILING THE APPEAL BEFORE THE COMMISSIONER. SIMILARLY, IT HAS BEEN USED IN SECTION 5 OF INDIAN LIMITATION ACT, 1963. WHENEVER INTERPRETATION AND CONSTRUCTION OF THIS EXPRESSION HAS FALLEN FOR CONS IDERATION BEFORE HONBLE HIGH COURT AS WELL AS BEFORE THE HONBLE SU PREME COURT, THEN, HONBLE COURT WERE UNANIMOUS IN THEIR CONCLUSION TH AT THIS EXPRESSION IS TO BE USED LIBERALLY. WE MAY MAKE REFERENCE TO THE FOLLOWING OBSERVATIONS OF THE HONBLE SUPREME COURT FROM THE DECISION IN THE CASE OF COLLECTOR LAND ACQUISITION VS. MST. KATIJI & OTH ERS, 1987 AIR 1353: 1. ORDINARILY A LITIGANT DOES NOT STAND TO BENEFIT 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 TH E HIGHEST THAT CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERI TS AFTER HEARING THE PARTIES. 3. 'EVERY DAY'S DELAY MUST BE EXPLAINED' DOES NOT M EAN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOU R'S DELAY, EVERY SECOND'S DELAY? THE DOCTRINE MUST BE APPLIED IN A RATIONAL COMMON SENSE PRAGMATIC MANNER. ITA NO.2364/AHD/2018 3 4. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERA TIONS ARE PITTED AGAINST EACH OTHER, CAUSE OF SUBSTANTIAL JUSTICE DE SERVES TO BE PREFERRED FOR THE OTHER SIDE CANNOT CLAIM TO HAVE V ESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON-DELIBERATE DE LAY. 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 T O DELAY. IN FACT HE RUNS A SERIOUS RISK. 6. IT MUST BE GRASPED THAT JUDICIARY IS RESPECTED N OT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GROUND S BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. 5. SIMILARLY, WE WOULD LIKE TO MAKE REFERENCE TO AU THORITATIVE PRONOUNCEMENT OF HONBLE SUPREME COURT IN THE CASE OF N.BALAKRISHNAN VS. M. KRISHNAMURTHY (SUPRA). IT READS AS UNDER: RULE OF LIMITATION ARE NOT MEANT TO DESTROY THE RI GHT OF PARTIES. THEY ARE MEANT TO SEE THAT PARTIES DO NOT RESORT TO DILATORY TACTICS, BUT SEEK THEIR REMEDY PROMPTLY. THE OBJECT OF PROVI DING A LEGAL REMEDY IS TO REPAIR THE DAMAGE CAUSED BY REASON OF LEGAL INJURY. LAW OF LIMITATION FIXES A LIFE-SPAN FOR SUCH LEGAL REMEDY FOR THE REDRESS OF THE LEGAL INJURY SO SUFFERED. TIME IS PR ECIOUS AND THE WASTED TIME WOULD NEVER REVISIT. DURING EFFLUX OF T IME NEWER CAUSES WOULD SPROUT UP NECESSITATING NEWER PERSONS TO SEEK LEGAL REMEDY BY APPROACHING THE COURTS. SO A LIFE SPAN MU ST BE FIXED FOR EACH REMEDY. UNENDING PERIOD FOR LAUNCHING THE REME DY MAY LEAD TO UNENDING UNCERTAINTY AND CONSEQUENTIAL ANARCHY. LAW OF LIMITATION IS THUS FOUNDED ON PUBLIC POLICY. IT IS ENSHRINED IN THE MAXIM INTEREST REIPUBLICAE UP SIT FINIS LITIUM (IT IS FOR THE GENERAL WELFARE THAT A PERIOD BE PUTT TO LITIGATION). RULES OF LIMITATION ARE NOT MEANT TO DESTROY THE RIGHT OF THE PARTIES. THEY 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 ALIVE FOR A LEGISLATIVELY FIXED PERIOD OF TIME. ITA NO.2364/AHD/2018 4 A COURT KNOWS THAT REFUSAL TO CONDONE DELAY WOULD R ESULT FORECLOSING A SUITOR FROM PUTTING FORTH HIS CAUSE. THERE IS NO PRESUMPTION THAT DELAY IN APPROACHING THE COURT IS ALWAYS DELIBERATE. THIS COURT HAS HELD THAT THE WORDS 'SUF FICIENT CAUSE' UNDER SECTION 5 OF THE LIMITATION ACT SHOULD RECEIV E A LIBERAL CONSTRUCTION SO AS TO ADVANCE SUBSTANTIAL JUSTICE V IDE SHAKUNTALA DEVI LAIN VS. KUNTAL KUMARI [AIR 1969 SC 575] AND S TATE OF WEST BENGAL VS. THE ADMINISTRATOR, HOWRAH MUNICIPALITY [ AIR 1972 SC 749]. IT MUST BE REMEMBERED THAT IN EVERY CASE O F DELAY THERE CAN BE SOME LAPSE ON THE PART OF THE LITIGANT CONCE RNED. THAT ALONE IS NOT ENOUGH TO TURN DOWN HIS PLEA AND TO SHUT THE DOOR AGAINST HIM. IF THE EXPLANATION DOES NOT SMACK OF MALA FIDE S 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 REAS ONABLE GROUND TO THINK THAT THE DELAY WAS OCCASIONED BY THE PARTY DELIBERATELY TO GAIN TIME THEN THE COURT SHOULD LEAN AGAINST ACCEPT ANCE OF THE EXPLANATION. WHILE CONDONING DELAY THE COULD SHOULD NOT FORGET THE OPPOSITE PARTY ALTOGETHER. IT MUST BE BORNE IN MIND THAT HE IS A LOOSER AND HE TOO WOULD HAVE INCURRED QUIET A LARGE LITIGATION EXPENSES. IT WOULD BE A SALUTARY GUIDELINE THAT WHE N COURTS CONDONE THE DELAY DUE TO LACHES ON THE PART OF THE APPLICANT THE COURT SHALL COMPENSATE THE OPPOSITE PARTY FOR HIS L OSS. WE DO NOT DEEM IT NECESSARY TO RE-CITE OR RECAPITUL ATE THE PROPOSITION LAID DOWN IN OTHER DECISIONS. IT IS SUFFICE TO SAY THAT THE HONBLE COURTS ARE UNANIMOUS IN THEIR APPROACH TO PROPOUND THAT WH ENEVER THE REASONS ASSIGNED BY AN APPLICANT FOR EXPLAINING THE CONDONA TION OF DELAY, THEN SUCH REASONS ARE TO BE CONSTRUED WITH A JUSTICE ORI ENTED APPROACH. 6. IN THE LIGHT OF THE ABOVE AND A PERUSAL OF THE R ECORD WOULD SUGGEST THAT EX PARTE ORDER WAS PASSED AGAINST THE ASSESSEE UNDER SECTIO N 144/147 OF THE INCOME TAX ACT. THE ASSESSEE HAS PLEADED BEFORE TH E LD.CIT(A) THERE WAS A CHANGE OF ADDRESS AND THE AO HAS NOT ISSUED NOTICE ON THE CHANGED ADDRESS. SIMILARLY, DEFECT IN THE APPEAL WAS NOT COMMUNICATE D TO THE ASSESSEE BY THE LD.CIT(A) ALSO. HER APPEAL WAS DISMISSED EX PARTE . TAKING INTO ITA NO.2364/AHD/2018 5 CONSIDERATION ALL THE ABOVE FACTS, AND IN THE INTER EST OF JUSTICE, WE CONDONE THE DELAY IN FILING APPEAL BEFORE THE LD.CIT(A) AND RES TORE ALL THE ISSUES TO THE FILE OF THE LD.CIT(A) FOR FRESH ADJUDICATION ON MERIT. THE ASSESSEE WILL BE AT LIBERTY TO SUBMIT DETAILS IN SUPPORT OF HER EXPLANA TION. IT NEEDLESS TO SAY, THE OBSERVATIONS MADE BY US WILL NOT IMPAIR OR INJURE T HE CASE OF THE AO AND WILL NOT CAUSE ANY PREJUDICE TO THE DEFENCE/EXPLANATION OF THE ASSESSEE. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 26 TH JULY, 2019 AT AHMEDABAD. SD/- SD/- ( PRAMOD KUMAR ) VICE-PRESIDENT (RAJPAL YADAV) JUDICIAL MEMBER