M/s Super Pipes Pvt. Ltd., V. Addl.CIT, Kanpur

ITA 24/LKW/2009

• Counselvise Citation: 2423714 RSA 2009
• Duration Of Justice: 2 year(s) 5 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 23-05-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 14-01-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V V SINGH
• Keywords: Charitable institution; Opportunity of being heard; Principle of natural justice; Reasonable cause; Right to appeal; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, A - BENCH, LUCKNOW. BEFORE SHRI H.L.KARWA, HON'BLE VICE PRESIDENT AND SHRI N.K.SAINI, ACCOUNTANT MEMBER I.T.A.NOS.24 & 407(LKW.)/2009 A.Y.: 2001-02 M/S. SUPER PIPES PVT. LTD., VS. THE ADDL.CIT-V, D-5, JAINPUR INDUSTRIAL AREA, KANPUR. KANPUR DEHAT. PAN AACCS0100J (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAKESH GARG, ADVOCATE RESPONDENT BY : SHRI V.V.SINGH, SR.D.R. O R D E R PER H.L.KARWA, VICE PRESIDENT THESE TWO APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE SEPARATE ORDERS OF THE LD. CIT(A)-II, KANPUR EACH DATED 7.7.2006 IN CONFIRMING THE PENALTY OF RS.4,18,609 UNDER SECTION 271E OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT) AND IN SUSTAINING THE PENALTY OF RS.6,00,000 UNDER SECTION 271D OF THE ACT FOR THE ASSESSMENT YEAR 2001-02. 2. IT IS OBSERVED THAT I.T.A.NO.24(LKW)/2009 FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ACTION OF THE LD.CIT(A)-II, KANPUR IN CONFIRMING THE PENALTY OF RS.4,18,609 UNDER SECTION 271E OF THE ACT AND THIS APPEAL WAS FILED LATE BY 834 DAYS. 2 2.1 IT IS ALSO OBSERVED THAT I.T.A.NO.407(LKW.)/2009 IS DIRECTED AGAINST THE ORDER OF THE LD.CIT(A)-II, KANPUR DATED 7.7.2006 IN SUSTAINING THE PENALTY OF RS.6 LACS UNDER SECTION 271D OF THE ACT AND THIS APPEAL WAS FILED LATE BY 951 DAYS (WRONGLY MENTIONED BY THE REGISTRY AS 150 DAYS). 2.2 IN BOTH THE CASES, THE ASSESSEE HAS FILED SEPARATE APPLICATIONS FOR CONDONATION OF DELAY. AS REGARDS THE APPEAL- ITA NO.24(LKW)/2009, THE ASSESSEE HAS SUBMITTED THAT THE NOTICE OF HEARING OF THE APPEAL ISSUED ON 12.6.2006 FIXING THE CASE FOR HEARING ON 3.7.2006 BEFORE THE LD. CIT(A) WAS NEVER SERVED ON THE ASSESSEE. IT HAS BEEN CLAIMED IN THE IMPUGNED ORDER THAT THE SAID NOTICE WAS SERVED ON THE ASSESSEE BY AFFIXTURE THROUGH INCOME-TAX INSPECTOR (ITI). IN THE IMPUGNED ORDER, IT HAS BEEN MENTIONED THAT A REPORT OF THE ITI HAS ALSO BEEN RECEIVED. THE ASSESSEE MAINTAINED THAT NO NOTICE WAS SERVED ON IT. THE ASSESSEE WAS NEVER AWARE OF ANY NOTICE OF HEARING BEING SERVED THROUGH AFFIXTURE ALSO. SHRI RAKESH GARG, ADVOCATE, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE IMPUGNED ORDER HAS BEEN PASSED EX PARTE ON 7.7.2006. THE SAME WAS ALSO NOT SERVED ON THE ASSESSEE. HOWEVER, THE LD.CIT(A)-II,KANPUR HAS MENTIONED IN HIS LETTER DATED 16.12.2006 THAT THE SAID APPELLATE ORDER DATED 7.7.2006 WAS SERVED ON THE ASSESSEE THROUGH AFFIXTURE ON 3.8.2006. SHRI RAKESH GARG, ADVOCATE, LEARNED COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT THE ASSSESSEE MADE ENQUIRIES FROM THE OFFICE OF THE LD. CIT(A). A PETITION DATED 23.10.2008 WAS FILED BEFORE THE LD.CIT(A) ENQUIRING INTO THE FATE OF THE APPEAL FILED. THE OFFICE OF THE LD.CIT(A) INTIMATED, FOR THE FIRST TIME, VIDE LETTER DATED 16.12.2008 THAT THE APPELLATE ORDER DATED 7.7.2006 WAS SERVED THROUGH AFFIXTURE. A CERTIFIED COPY OF THE ORDER WAS ENCLOSED ALONGWITH THE REPLY TO THE AFORESAID LETTER. THUS, ON THE BASIS OF THE LETTER DATED 16.12.2008 ONLY, 3 THE ASSESSEE CAME TO KNOW THAT THE APPELLATE ORDER HAS BEEN PASSED AND CLAIMED TO HAVE BEEN SERVED THROUGH AFFIXTURE BY THE OFFICE OF THE LD.CIT(A), YET, THE FACT REMAINS THAT NO ORDER WAS EVER SERVED ON THE ASESSEE. THE ASSESSEE WAS PROVIDED WITH A CERTIFIED COPY OF THE ORDER. AS SOON AS THE ASSESSEE RECEIVED THE SAME, THE APPEAL WAS PREPARED AND FILED ON 14.1.2009. 3. AS REGARDS THE DELAY IN FILING THE APPEAL- ITA NO.407(LKW)/2009, SHRI RAKESH GARG, ADVOCATE, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE OFFICE OF THE LD. CIT(A) VIDE LETTER DATED 15.12.2008, INFORMED THAT THE ORDER WAS SERVED THROUGH AFFIXTURE. SHRI RAKESH GARG, ADVOCATE, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT FACTS ARE THE SAME AS IN I.T.A.NO.24(LKW)/2009 AND THE DELAY IN THIS APPEAL IS OF 951 DAYS. THE DELAY OF 117 DAYS MORE IN THIS APPEAL IS PURELY ON ACCOUNT OF THE FACT THAT THE ACCOUNTANT/PERSON LOOKING AFTER THE TAX MATTERS DID NOT PROVIDE THE COPY OF THE ORDER AS OBTAINED BY HIM FROM THE OFFICE OF THE LD. CIT(A) ON THE BASIS OF THE PETITION FILED BEFORE THE LD.CIT(A) ENQUIRING THE FATE OF APPEAL. AN AFFIDAVIT OF SHRI SANJEEV BANSAL HAS ALSO BEEN FILED ALONGWITH THE APPEAL. ACCORDING TO SHRI RAKESH GARG, ADVOCATE, LEARNED COUNSEL FOR THE ASSESSEE ADMITTEDLY THERE IS NO SERVICE OF THE ORDER ON THE ASSESSEE. NOT ONLY THIS, THERE IS NO SERVICE OF NOTICE OF HEARING ALSO. THE DISPUTES BETWEEN THE PERSON ASSISTING FOR ENQUIRING ABOUT THE FATE OF THE APPEAL AND THE MANAGEMENT CAUSED DELAY IN FILING THE APPEAL. SHRI RAKESH GARG, LEARNED COUNSEL FOR THE ASSESSEE ALSO SUBMITTED THAT THE ASSESEES REGISTERED OFFICE WAS SITUATED AT KAILASH APARTMENTS, MALL ROAD, KANPUR. THE ASSESSEE, ON ACCOUNT OF FINANCIAL CRISIS, HAD TO SELL/DISPOSE OF THE SAID PREMISES ON 12.6.2006. A COPY OF THE SALE DEED WAS FILED. THE NOTICE ALLEGED TO HAVE 4 BEEN SENT FOR HEARING WAS DATED 12.6.2006 FIXING THE DATE FOR 3.7.2006, THUS, THE NOTICE PRESUMED TO BE SENT HAD BEEN AFFIXED ON THE PREMISES WHICH NO LONGER BELONGED TO THE ASSESSEE. HENCE, THE ASSESSEE WAS NEVER AWARE OF ANY NOTICE BEING SERVED. IT WAS ALSO STATED BY SHRI RAKESH GARG, ADVOCATE, LEARNED COUNSEL FOR THE ASSESSEE THAT THE REASON FOR SALE OF THE PROPERTY WAS THE FINANCIAL CRISIS IN WHICH THE ASSESSEE-COMPANY WAS PLACED. THIS HAS BEEN EXPLAINED BY THE ASSESSEE IN THE AFFIDAVIT OF THE DIRECTOR, SHRI JUGUL KISHORE AGARWAL. THUS, NO NOTICE OF HEARING AS WELL AS NO ORDER WAS SERVED ON THE ASSESSEE AND THE ASSESSEE WAS PREVENTED BY REASONABLE CAUSE. RELIANCE WAS PLACED ON THE FOLLOWING DECISIONS : (I) PEOPLE EDUCATION AND ECONOMIC DEVELOPMENT SOCIETY VS. ITO (2006) 100 ITD 87 (CHENNAI) (T.M.), (II) ANGELA J.KAZI VS. ITO (2007) 10 SOT 139(MUM.), (III) CHEMINOR DRUGS LTD. VS. DY.CIT (2007) 105 ITD 613 (HYD.), (IV) AUTO CENTRE VS. STATE OF U.P. AND OTHERS (2005) 278 ITR 291(ALL.), (V) SHREENIVAS CHARITABLE TRUST VS. DY.CIT (2006) 280 ITR 357(MAD.), (VI) AREVA T AND D INDIA LTD. (FORMERLY KNOWN AS ALSOM LTD.) VS. JOINT CIT (2006) 287 ITR 555(MAD.), (VII) BAJAJ HINDUSTAN LTD. VS. JT. CIT (2005) 277 ITR (AT) 1 (MUM.), (VIII) COLLECTOR, LAND ACQUISITION VS. MST. KATIJI AND OTHERS (1987) 167 ITR 471(S.C.), (IX) REMEX CONSTRUCTIONS/REMEX ELECTRICALS VS. FIRST ITO & OTHERS, (1987) 166 ITR 18 (BOMBAY), (X) RAMLAL & SONS VS. ITO (2006) 99 TTJ 63(ASR.)-ITA NO.390/ASR./1999, (XI) EARTHMETAL ELECTRICALS PVT. LTD. VS. ITO (2005) 4 SOT 484(MUM.), (XII) STERLITE INDUSTRIES (INDIA) LTD. VS. ADDL. CIT/ JOINT CIT, SPL. (2006) 6 SOT 497(MUM.), (XIII) U.B.DISTILLERS LTD. VS. CIT (2004) 269 ITR 558(CAL.), (XIV) SHYAM GOPAL CHARITABLE TRUST VS. DIRECTOR OF INCOME-TAX (EXEMPTION), (2007) 290 ITR 99(DEL.), 5 (XV) CONCORD OF INDIA INSURANCE CO. LTD. VS. SMT.NIRMALA DEVI AND OTHERS (1979) 118 ITR 507(S.C.), (XVI) G.SUNDARAVEL AND BROTHERS VS. INCOME-TAX APPELLATE TRIBUNAL AND ANOTHER (2008) 306 ITR 38 (MAD.). 3.1 IN VIEW OF THE ABOVE, SHRI RAKESH GARG, ADVOCATE, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE DELAY IN FILING BOTH THE APPEALS MAY BE CONDONED. 4. SHRI V.V.SINGH, LD.SR.D.R., AS REGARDS THE DELAY IN FILLING I.T.A.NO.24(LKW.)/2009, SUBMITTED THAT SHRI RAKESH GARG, ADVOCATE LEARNED COUNSEL FOR THE ASSESSEE VEHEMENTLY RELIED ON THE DECISION OF THE APEX COURT RENDERED IN THE CASE OF MST.KATIJI AND OTHERS (SUPRA) WHEREIN IT HAS BEEN HELD THAT WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATION ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED, FOR THE OTHER SIDE CANNOT CLAIM TO HAVE A VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF NON-DELIBERATE DELAY. SHRI V.V.SINGH, LD.SR..D.R. SUBMITTED THAT IN THE CASE OF MST.KATIJI AND OTHERS (SUPRA), THE DELAY WAS OF 4 DAYS WHICH WAS CONDONED BY THE HON'BLE SUPREME COURT. ACCORDING TO THE LD.SR.D.R. IN THE INSTANT CASE, THERE IS INORDINATE DELAY IN FILING THE APPEAL. HE FURTHER SUBMITTED THAT THE A DELAY CANNOT CONDONED SIMPLY BECAUSE THE ASSESSEES CASE IS HARD AND CALLS FOR SYMPATHY OR MERELY OUT OF BENEVOLENCE TO THE PARTY SEEKING RELIEF. IN GRANTING THE INDULGENCE AND CONDONING THE DELAY, IT MUST BE PROVED BEYOND THE SHADOW OF DOUBT THAT THE ASSESSEE WAS DILIGENT AND WAS NOT GUILTY OF NEGLIGENCE WHATSOEVER. HE FURTHER SUBMITTED THAT THE SUFFICIENT CAUSE WITHIN THE CONTEMPLATION OF THE LIMITATION PROVISION MUST BE CAUSE WHICH IS BEYOND THE CONTROL OF THE PARTY INVOKING THE AID OF THE PROVISIONS. SHRI V.V.SINGH, LD.SR.D.R. SUBMITTED THAT 6 IN THE CASE OF RAM LAL VS. REWA COALFIELDS LTD., AIR 1962 SC 361, IT HAS BEEN HELD THAT THE CAUSE FOR THE DELAY IN FILING THE APPEAL WHICH BY DUE CARE AND ATTENTION COULD HAVE BEEN AVOIDED CANNOT BE A SUFFICIENT CAUSE WITHIN THE MEANING OF THE LIMITATION PROVISIONS. WHERE NO NEGLIGENCE, NOR INACTION, OR WANT OF BONA FIDES CAN BE IMPUGNED TO THE ASSESSEE, A LIBERAL CONSTRUCTION OF THE PROVISIONS HAS TO BE MADE IN ORDER TO ADVANCE SUBSTANTIAL JUSTICE. SEEKERS OF JUSTICE MUST COME WITH CLEAN HANDS. SHRI V.V.SINGH, LD.SR.D.R. POINTED OUT THAT THE CONDUCT OF THE ASSESSE SHOWS THAT THE DELAY WAS DUE TO NEGLIGENCE AND INACTION ON THE PART OF THE ASSESSEE. THE ASSESSEE COULD HAVE VERY WELL AVOIDED THE DELAY BY THE EXERCISE OF DUE CARE AND ATTENTION. ACCORDING TO THE LD.D.R. THERE EXISTS NO SUFFICIENT AND GOOD REASON FOR THE DELAY OF 834 DAYS. 4.1 SIMILAR ARGUMENTS WERE ADVANCED IN RESPECT OF I.T.A.NO.407(LKW.)/2009 WHERE THE APPEAL WAS FILED LATE BY 951 DAYS. SHRI V.V.SINGH, LD.SR.D.R. ALSO SUBMITTED THAT THERE IS ALSO AN ADDITIONAL INTERESTING FACT. THIS FACT IS THAT ONE SHRI SANJEEV BANSAL OBTAINED COPY OF THE ORDER ON BEHALF OF THE ASSESSEE ON 22.12.2008 BUT CONTINUED TO KEEP IT WITH HIM TILL JUNE, 2009. THE BASIS OF THIS WITHHOLDING HAS BEEN GIVEN IN AN AFFIDAVIT OF SHRI SANJEEV BANSAL ANNEXED BY THE ASSESSEE IN THE PETITION WHICH SAYS THAT THE WITHHOLDING WAS DUE TO IRREGULAR PAYMENT OF HIS DUES BY THE ASSESSEE-COMPANY. ACCORDING TO THE LD.SR.D.R. THESE ARE PURELY INTERNAL MATTERS OF THE COMPANY AND DO NOT CONTAIN VALID REASONS FOR CONDONATIN OF DELAY. IN THE CASE OF JOINT CIT VS. TRACTORS & FARM EQUIPMENTS LTD. (2007) 104 ITD (CHENNAI) TM, THIS GROUND OF DELAY HAS BEEN ADVERSELY COMMENTED. THE LD.SR.D.R. HEAVILY RELIED ON THE ABOVE JUDGMENT OF THE TRIBUNAL. 7 4.2 SHRI V.V.SINGH, LD.SR.D.R. ALSO SUBMITTED THAT SECTION 5 OF THE LIMITATION ACT,1963 IS NOT APPLICABLE TO INCOME-TAX APPELLATE TRIBUNAL. THE TRIBUNAL IS NOT A COURT IN THE SPECIFIC SENSE AND AS ENVISAGED IN SECTION 5 OF THE LIMITATION ACT. HE FURTHER SUBMITTED THAT THE LIMITATION ACT IS APPLICABLE TO COURTS AND NOT TO QUASI-JUDICIAL BODY (LIKE ITAT) NOTWITHSTANDING THAT THEY HAVE SOME POWERS OF CIVIL PROCEDURE CODE. IN VIEW OF THE ABOVE, SHRI V.V.SINGH, LD.SR.D.R. SUBMITTED THAT THE DELAY MAY NOT BE CONDONED AND BOTH THE APPEALS BE TREATED AS UNADMITTED. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO PERUSED THE MATERIALS AVAILABLE ON THE RECORD. IT IS SETTLED LAW THAT IN MATERS OF CONDONATION OF DELAY A PRAGMATIC VIEW SHOULD BE TAKEN AND THERE SHOULD BE LIBERAL APPROACH. THE LAW OF LIMITATION AS ENSHRINED IN THE MAXIM INTEREST REIPUBLICAE UT 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, RATHER THE IDEA IS THAT EVERY LEGAL REMEDY MUST BE KEPT ALIVE FOR A LEGISLATIVELY FIXED PERIOD OF TIME. IN THE CASE OF SHREENIVAS CHARITABLE TRUST VS. DY.CIT (SUPRA), THE HON'BLE MADRAS HIGH COURT HELD THAT NO HARD AND FAST RULE CAN BE LAID DOWN IN THE MATTER OF CONDONATION OF DELAY AND COURTS SHOULD ADOPT A PRAGMATIC APPROACH AND SHOULD EXERCISE THEIR 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 PRIMA IMPORTANCE AND THE EXPRESSION SUFFICIENT CAUSE SHOULD RECEIVE A LIBERAL CONSTRUCTION. IT IS ALSO TRUE THAT LENGTH OF DELAY IS NOT TO MATTER IN THE CONTEXT OF CONDONATION OF DELAY. IN THE CASE OF COLLECTOR LAND ACQUISITION VS. MST. KATIJI (SUPRA), THE HON'BLE SUPREME COURT HAS LAID DOWN THAT 8 JURISDICTION TO CONDONE THE DELAY SHOULD BE EXERCISED LIBERALLY. THE HON'BLE SUPREME COURT HAS ALSO MADE FOLLOWING IMPORTANT OBSERVATIONS: 1. ORDINARILY, A LITIGANT DOES NOT STAND TO BENEFIT BY LODGING AN APPEAL LATE. 2. REFUSING TO CONDONE DELAY CAN RESULT IN A MERITORIOUS 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 AFTER HEARING THE PARTIES. 3. 'EVERY DAY'S DELAY MUST BE EXPLAINED' DOES NOT MEAN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOUR'S DELAY, EVERY SECOND'S DELAY? THE DOCTRINE MUST BE APPLIED IN A RATIONAL, COMMON SENSE AND PRAGMATIC MANNER. 4. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS 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 A SERIOUS RISK. 6. IT MUST BE GRASPED THAT THE JUDICIARY IS RESPECTED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. 6.1 IT IS TRUE THAT THE ABOVE JUDGMENT WAS RENDERED BY THE HON'BLE SUPREME COURT IN THE CONTEXT OF SECTION 5 OF INDIAN LIMITATION ACT, 1963. HOWEVER, THE RATIO LAID DOWN BY THE HON'BLE SUPREME COURT IS SQUARELY APPLICABLE IN CONDONING THE DELAY OCCURRED IN FILING THE APPEALS. THE HON'BLE SUPREME COURT HAS CLEARLY LAID DOWN THAT THERE IS NO PRESUMPTION 9 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 A SERIOUS RISK. IN THE INSTANT CASES, HEAVY PENALTIES WERE IMPOSED AND THEREFORE, THERE CANNOT BE ANY PRESUMPTION THAT THE ASSESSEE HAS DELIBERATELY NOT PREFERRED THE APPEALS IN TIME. 6.2 RECENTLY, THE HON'BLE SUPREME COURT IN THE CASE OF ORIENTAL AROMA CHEMICAL INDUSTRIES LIMITED VS. GUJARAT INDUSTRIAL DEVELOPMENT CORPORATION AND ANOTHER (2010) 5 SCC 459, WHILE CONSTRUING SECTION 5 OF THE LIMITATION ACT HAVE HELD AS UNDER : WE HAVE CONSIDERED THE RESPECTIVE SUBMISSIONS. THE LAW OF LIMITATION IS FOUNDED ON PUBLIC POLICY. THE LEGISLATURE DOES NOT PRESCRIBE LIMITATION WITH THE OBJECT OF DESTROYING THE RIGHTS OF THE PARTIES BUT TO ENSURE THAT THEY DO NOT RESORT TO DILATORY TACTICS AND SEEK REMEDY WITHOUT DELAY. THE IDEA IS THAT EVERY LEGAL REMEDY MUST BE KEPT ALIVE FOR A PERIOD FIXED BY THE LEGISLATURE. TO PUT IT DIFFERENTLY, THE LAW OF LIMITATION PRESCRIBES A PERIOD WITHIN WHICH LEGAL REMEDY CAN BE AVAILED FOR REDRESS OF THE LEGAL INJURY. AT THE SAME TIME, THE COURTS ARE BESTOWED WITH THE POWER TO CONDONE THE DELAY, IF SUFFICIENT CAUSE IS SHOWN FOR NOT AVAILING THE REMEDY WITHIN THE STIPULATED TIME. THE EXPRESSION 'SUFFICIENT CAUSE' EMPLOYED IN SECTION 5 OF THE LIMITATION ACT, 1963 AND SIMILAR OTHER STATUTES IS ELASTIC ENOUGH TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SUBSERVES THE ENDS OF JUSTICE. ALTHOUGH, NO HARD-AND-FAST RULE CAN BE LAID DOWN IN DEALING WITH THE APPLICATIONS FOR CONDONATION OF DELAY, THIS COURT HAS JUSTIFIABLY ADVOCATED ADOPTION OF A LIBERAL APPROACH IN CONDONING THE DELAY OF SHORT DURATION AND A STRICTER APPROACH WHERE THE DELAY IS INORDINATE. COLLECTOR (L.A.) V. KATIJI, N.BALAKRISHNAN V. M. KRISHNAMURTHY AND VEDABAI V. SHANTARAM BABURAO PATIL. 6.3 IN OUR OPINION, IT MUST BE REMEMBERED THAT IN EVERY CASE OF DELAY THERE CAN BE SOME LAPSE OF LITIGANT CONCERNED AND THAT ALONE IS NOT ENOUGH TO 10 TURN DOWN PLEA AND TO SHUT DOORS AGAINST HIM. THE EXPLANATIONS PUT FORTH BY THE ASSESSEE IN THE INSTANT CASES ARE REASONABLE AND SATISFACTORY. IN OUR OPINION, SOME TIME DELAY OF THE SHORTEST RANGE MAY BE UNCONDONABLE DUE TO A WANT OF ACCEPTABLE EXPLANATION, WHEREIN CERTAIN OTHER CASES, DELAY OF A VERY LONG RANGE CAN BE CONDONED AS THE EXPLANATION THEREOF IS SATISFACTORY. AS WE HAVE ALREADY HELD HEREINABOVE THAT THE EXPLANATION GIVEN BY THE ASSESSEE FOR THE DELAY IN FILING THE APPEALS IS SUFFICIENT AND SATISFACTORY. WE HAVE ALSO OBSERVED HEREINABOVE THAT THE HON'BLE SUPREME COURT HAS RULED THAT IN CASE OF NON-DELIBERATE DELAY, A LIBERAL VIEW SHOULD BE TAKEN TO CONDONE SUCH DELAY. CONSIDERING THE ENTIRE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, WE CONDONE THE DELAY IN FILING THE APPEALS AND ADMIT BOTH THE APPEALS. 7. AS REGARDS THE MERITS OF THE CASE, SHRI RAKESH GARG, ADVOCATE, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. CIT(A) HAS PASSED BOTH THE ORDERS UNDER APPEAL EX PARTE WITHOUT AFFORDING AN ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HE, THEREFORE, SUBMITTED THAT THE IMPUGNED ORDERS MAY BE SET ASIDE AND THE MATTER BE RESTORED TO THE FILE OF THE LD. CIT(A) WITH A DIRECTION TO DECIDE BOTH THE APPEALS AFRESH ON MERITS IN ACCORDANCE WITH LAW AFTER AFFORDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8. ON THE OTHER HAND, SHRI V.V.SINGH, LD. SR.D.R. VEHEMENTLY OPPOSED THE ABOVE CONTENTION OF SHRI RAKESH GARG, ADVOCATE, LEARNED COUNSEL FOR THE ASSESSEE. ACCORDING TO THE LD.D.R., THE LD.CIT(A) HAS AFFORDED SUFFICIENT OPPORTUNITIES TO THE ASSESSEE TO PRESENT ITS CASE BEFORE THE LD. CIT(A). HOWEVER, THE ASSESSEE DID NOT CO-OPERATE IN THE PROCEEDINGS BEFORE THE LD.CIT(A) AND THEREFORE, NO RELIEF MAY BE GIVEN TO THE ASSESSEE AT THIS STAGE. 11 9. AFTER CONSIDERING THE GROUNDS RAISED BY THE ASSESSEE AND ALSO PERUSING THE IMPUGNED ORDERS, WE FIND THAT THE LD.CIT(A) HAS DECIDED THE APPEALS OF THE ASSESSEE EX PARTE. AFTER PERUSING THE IMPUGNED ORDERS, IT WOULD BE CLEAR THAT THE LD. CIT(A) HAS NOT PROVIDED ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE DECIDING THE APPEALS. IN OUR OPINION, THE LD. CIT(A) SHOULD HAVE AFFORDED ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE DECIDING THE APPEALS. IN THE CASE OF RADHIKA CHARAN BANERJEE VS. SAMBALPUR MUNICIPALITY, AIR (1979) ORISSA 69, THE HON'BLE ORISSA HIGH COURT HELD THAT A RIGHT OF APPEAL WHEREVER CONFERRED INCLUDES A RIGHT OF BEING AFFORDED AN OPPORTUNITY OF BEING HEARD, IRRESPECTIVE OF THE LANGUAGE CONFERRING SUCH RIGHT. THAT IS A PART AND PARCEL OF THE PRINCIPLE OF NATURAL JUSTICE. WHERE AN AUTHORITY IS REQUIRED TO ACT IN A QUASI-JUDICIAL CAPACITY, IT IS IMPERATIVE TO GIVE THE APPELLANT AN ADEQUATE OPPORTUNITY OF BEING HEARD BEFORE DECIDING THE APPEAL. THUS, CONSIDERING THE ENTIRE FACTS OF THE PRESENT CASE, WE THINK IT PROPER TO SET ASIDE THE ORDERS OF THE LD.CIT(A) IN TOTO AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO DECIDE THE APPEALS AFRESH ON MERITS IN ACCORDANCE WITH LAW AFTER AFFORDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD.CIT(A) IS ALSO DIRECTED TO DECIDE BOTH THE APPEALS PREFERABLY WITHIN THREE MONTHS FROM THE DATE OF RECEIPT OF ORDER OF THIS BENCH OF THE TRIBUNAL. 10. IN THE RESULT, BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON 12.7.2011. SD. SD. (N.K.SAINI) (H.L.KARWA) ACCOUNTANT MEMBER VICE PRESIDENT JULY 12TH ,2011. 12 COPY TO THE : 1. APPELLANT 2. RESPONDENT 3. CIT(A) (4) CIT 5.DR. A.R.,ITAT, LUCKNOW. SRIVASTAVA.