Atulkumar Kirtilal Shah, Ahmedabad V. ITO, Ward-5(3)(1), Ahmedabad

ITA 2485/AHD/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2537 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 10-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T C MEENA
• Keywords: Period of limitation; Condonation of delay; Set aside

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH SMC BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI RIFAUR RAHMAN, ACCOUNTANT MEMBER ./ ITA NO.2485/AHD/2017 / ASSTT. YEAR: 2012-13 ATULKUMAR KIRTILAL SHAH PROP: M/S.VARDHMAN JEWELLERS 4, SOMALIYA BLDG. 5, SARASWATI SOCIETY PALDI, AHMEDABAD. PAN : AFQPS 3810 P VS. ITO, WARD-5(3)(1) AHMEDABAD. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI T.C. MEENA, SR.DR ! / DATE OF HEARING : 17/06/2019 '#$ ! / DATE OF PRONOUNCEMENT: 18 /06/2019 %& / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: PRESENT APPEAL BY THE ASSESSEE IS AGAINST ORDER OF THE LD.CIT(A)-5, DATED 18.7.2016 PASSED FOR THE ASSTT.Y EAR 2012-13. 2. IN RESPONSE TO THE NOTICE OF HEARING, NONE HAS C OME PRESENT ON BEHALF OF THE ASSESSEE. WITH THE ASSISTANCE OF THE LD.DR, WE HAVE GONE THROUGH THE RECORD CAREFULLY AND PROCEDED TO DISPOSE OF THE APPEAL EX PARTE QUA THE ASSESSEE. ITA NO.2485/AHD/2017 2 3. IT IS DISCERNIBLE FROM THE RECORD THAT THERE WAS DELAY OF 28 DAYS IN FILING APPEAL BEFORE THE LD.CIT(A). THE LD .CIT(A) DID NOT CONDONE THE DELAY AND DISMISSED THE APPEAL BEING TI ME BARRED. THE LD.CIT(A) HAS REPRODUCED RELEVANT PART OF APPLI CATION FOR CONDONATION OF DELAY ON PAGE NO.2 OF THE IMPUGNED O RDER. WITH THE ASSISTANCE OF THE LD.DR WE HAVE GONE THROUGH TH E EXPLANATION GIVEN BY THE ASSESSEE. THE ASSESSEE HAS PLEADED TH AT ON ACCOUNT OF ILL-HEALTH, HE COULD NOT FILE APPEAL WELL IN TIM E. WE HAVE CONSIDERED CONTENTIONS OF THE ASSESSEE. SUB-SECTIO N (3) OF SECTION 249 CONTEMPLATES THAT THE LD.CIT(A) MAY ADM IT AN APPEAL AFTER EXPIRY OF RELEVANT PERIOD OF LIMITATION, IF H E SATISFIES THAT THERE WAS A SUFFICIENT CAUSE FOR NOT PRESENT IT WIT HIN THAT PERIOD. THE EXPRESSION SUFFICIENT CAUSE EMPLOYED IN SUB-S ECTION 5 OF SECTION 253 WHICH AUTHORISE TRIBUNAL TO CONDONE THE DELAY IN FILING APPEAL OR PERMIT FILING OF MEMORANDUM OF CROSS OBJE CTION. SIMILARLY, IT HAS BEEN USED IN SECTION 5 OF INDIAN LIMITATION ACT, 1963. WHENEVER INTERPRETATION AND CONSTRUCTION OF THIS EX PRESSION HAS FALLEN FOR CONSIDERATION BEFORE HONBLE HIGH COURT AS WELL AS BEFORE THE HONBLE SUPREME COURT, THEN, HONBLE COURT WERE UNA NIMOUS IN THEIR CONCLUSION THAT THIS EXPRESSION IS TO BE USED LIBER ALLY. WE MAY MAKE REFERENCE TO THE FOLLOWING OBSERVATIONS OF THE HON BLE SUPREME COURT FROM THE DECISION IN THE CASE OF COLLECTOR LAND ACQ UISITION VS. MST. KATIJI & OTHERS, 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. ITA NO.2485/AHD/2017 3 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. 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. 4. 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 PROVIDING A LEGAL REMEDY IS TO REPAIR THE DAMAGE CAUSED BY REAS ON OF LEGAL INJURY. LAW OF LIMITATION FIXES A LIFE-SPAN FOR SUC H LEGAL REMEDY FOR THE REDRESS OF THE LEGAL INJURY SO SUFFERED. TIME I S PRECIOUS AND THE WASTED TIME WOULD NEVER REVISIT. DURING EFFLUX OF TIME 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 REMEDY MAY LEAD TO UNENDING UNCERTAINTY AND CONSEQUENTIAL ANAR CHY. 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 REMED Y MUST BE KEPT ALIVE FOR A LEGISLATIVELY FIXED PERIOD OF TIME . 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' ITA NO.2485/AHD/2017 4 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 OF D ELAY 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 SH UT THE DOOR AGAINST HIM. IF THE EXPLANATION DOES NOT SMACK OF M ALA 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 DELAY WAS OCCASIONED BY TH E PARTY DELIBERATELY TO GAIN TIME THEN THE COURT SHOULD LEA N AGAINST ACCEPTANCE OF THE EXPLANATION. WHILE CONDONING DELA Y 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 I NCURRED QUIET A LARGE LITIGATION EXPENSES. IT WOULD BE A SALUTARY G UIDELINE THAT WHEN COURTS CONDONE THE DELAY DUE TO LACHES ON THE PART OF THE APPLICANT THE COURT SHALL COMPENSATE THE OPPOSITE P ARTY FOR HIS LOSS. WE DO NOT DEEM IT NECESSARY TO RE-CITE OR RECAPITUL ATE THE PROPOSITION LAID DOWN IN OTHER DECISIONS. IT IS SU FFICE TO SAY THAT THE HONBLE COURTS ARE UNANIMOUS IN THEIR APPROACH TO P ROPOUND THAT WHENEVER THE REASONS ASSIGNED BY AN APPLICANT FOR E XPLAINING THE CONDONATION OF DELAY, THEN SUCH REASONS ARE TO BE C ONSTRUED WITH A JUSTICE ORIENTED APPROACH. 5. IN THE LIGHT OF THE ABOVE, IF WE EXAMINE THE EXP LANATION OF THE ASSESSEE, THEN IT WOULD REVEAL THAT SMALL DELAY OF 28 DAYS OCCURRED IN FILING APPEAL ON ACCOUNT OF ILL-HEALTH. THE ASSESSEE HAS PLEADED THAT HE HAS NOT MADE ITS APPEAL TIME BA RRED BY ADOPTING DELAY TACTICS AS A STRATEGY TO AVOID LITIG ATION WITH THE DEPARTMENT. IN OTHER WORDS, THERE IS NO MALA FIDE INTENTION AT THE END OF THE ASSESSEE FOR NOT FILING APPEAL WELL IN T IME. THE LD.CIT(A) OUGHT TO HAVE A TAKEN A SYMPATHETIC VIEW WHILE CONSIDERING APPLICATION FOR CONDONATION OF DELAY. THEREFORE, WE CONDONE THE DELAY AND SET ASIDE THE IMPUGNED ORDER OF THE ITA NO.2485/AHD/2017 5 LD.CIT(A). THE LD.CIT(A) IS DIRECTED TO DECIDE THE APPEAL OF THE ASSESSEE ON MERIT AFTER PROVIDING REASONABLE OPPORT UNITY OF HEARING TO THE ASSESSEE IN ACCORDANCE WITH LAW. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 18 TH JUNE, 2019. SD/- SD/- (RIFAUR RAHMAN) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER