SHRI NIMESH JABARMAL CHANDANI, MUMBAI V. INCOME TAX OFFICER 19(2)(4), MUMBAI

ITA 2494/MUM/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0473 (ITAT-MUMBAI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 23-04-2018
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI B. R. BASKARAN , ACCOUNTANT MEMBER AND SHRI SANDEEP GOSAIN, JUDICIAL MEMBER ITA NO. 2494 /MUM /201 8 ( ASSESSMENT YEAR : 20 10 - 11 ) SHRI NIMESH JABARMAL CHANDANI, GROUND FLOOR, SHOP NO. 91 - 95, K IKA STREET, GULALWADI, MUMBAI - 400 004 PAN - A DCPJ2850Q . APPELLANT V/S ITO 19(2)(4) ROOM NO. 217, MATRU MANDIR, TARDEO, MUMBAI - 400 007 . RESPONDENT ASSESSEE BY : NONE REVENUE BY : SHRI S. K. BEPARI - DR DATE OF HEARING - 20.11 .20 18 DATE OF ORDER 28 .11 .2018 O R D E R PER: SANDEEP GOSAIN, JUDICIAL MEMBER. THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) - 53 , MUMBAI, DATED 22/01/2018 AND PERTAINS TO AY 2010 - 11 , WHEREIN, THE CIT(A) HAS DISMI SSED THE APPEAL FILED BY THE ASSESSEE ON THE GROUND THAT THE SAME WAS FILED BEYOND THE ITA NO. 2494/MUM./2018 SHRI NIMESH JABARMAL CHANDANI 2 PRESCRIBED PERIOD OF LIMITATION AND THUS THE DELAY IN FILING THE APPEAL WAS NOT CONDONED. 2. AN APPLICATION FOR SEEKING ADJOURNMENT WAS MOVED ON BEHALF OF ASSESSEE BUT CONSIDERING THE FACTS OF THE PRESENT CASE AND TAKING INTO CONSIDERATION THAT LD. DR OF THE DEPARTMENT IS READY WITH THE MATTER, WE REJECT THE APPLICATION FILED BY THE ASSESSEE FOR SEEKING ADJOURNMENT. 3. BRIEF FACTS OF THE CASE ARE THAT THE LD. CIT(A) D ISMISSED THE APPEAL FILED BY THE ASSESSEE ON THE GROUND OF LIMITATION . AS PER THE PRESCRIBED PERIOD OF LIMITATION, THE APPEAL WAS TO BE FILED WITHIN THIRTY DAYS , THE SAME WAS FILED BEFORE THE LD. CIT(A) AFTER A DELAY OF APPROXIMATELY 7 DAYS . 4 . FROM THE RECORDS, WE NOTICED THAT THE ASSESSEE HAD MADE REQUEST BEFORE LD. CIT(A) FOR CONDONING THE DELAY, BUT THE LD. CIT(A) REJECTED THE SAID REQUEST ON THE GROUND THAT THE EXPLANATION FOR DELAY IS NEITHER PROVED NOR REASONABLE. WE ALSO NOTICED THAT IT HAS CATEG ORICALLY BEEN MENTIONED BY THE ASSESSEE THAT THE ASSESSMENT ORDER WAS SERVED ON HIS REPRESENTATIVE IN THE FIRST WEEK OF MARCH 2016 WHICH WAS DELIVERED BY THE ASSESSEE ON 14.03.16 AS THE ASSESSEE WAS OUT OF STATION. BECAUSE OF THIS REASON, THE DELAY ITA NO. 2494/MUM./2018 SHRI NIMESH JABARMAL CHANDANI 3 ACCRUED IN FILING THE APPEAL. THE TOTAL DELAY IS ABOUT 7 DAYS IN FILING THE APPEAL. 5 . AFTER CONSIDERING THE FACTS OF THE PRESENT CASE, W E FIND THAT T HE MOOT QUESTION TO BE ADJUDICATED IS WITH RESPECT TO CONDONATION OF DELAY. BROADLY, WE ARE OF THE VIEW, THAT T HE COURTS AND THE QUASI - JUDICIAL BODIES ARE EMPOWERED TO CONDONE THE DELAY, IF A LITIGANT SATISFIES THE COURTS THAT THERE WAS SUFFICIENT REASON FOR AVAILING THE REMEDY AFTER THE EXPIRY OF LIMITATION. SUCH REASONING SHOULD BE TO THE SATISFACTION OF THE COUR T. THE EXPRESSION SUFFICIENT CAUSE OR REASONS AS PROVIDED IN SUB - SECTION (5) OF SECTION 253 OF THE ACT IS USED IN IDENTICAL POSITION IN THE LIMITATION ACT 1963, AND IN CPC. SUCH EXPRESSION HAS ALSO BEEN USED IN OTHER SECTIONS OF THE INCOME TAX ACT SUCH AS SECTION 273, 274, ETC. KEEPING IN MIND, THE AUTHORITATIVE PRONOUNCEMENT FROM HONBLE APEX COURT, IT IS ADMITTED POSITION THAT THE WORDS SUFFICIENT CAUSE APPEARING IN SUB - SECTION (5) OF SECTION 253 OF THE ACT SHOULD RECEIVE A LIBERAL CONSTRUCTION SO AS TO ADVANCE SUBSTANTIAL JUSTICE. IT MUST BE REMEMBERED THAT IN EVERY CASE OF DELAY, THERE CAN BE SOME LAPSES ON THE PART OF THE LITIGANT CONCERN. THAT ALONE IS NOT ENOUGH TO TURN DOWN THE PLEA AND TO SHUT THE DOORS AGAINST HIM, UNLESS AND UNTIL, IT MAKES A MALA - FIDE OR A DILATORY STATUTORY, THE COURT MUST SHOW UTMOST CONSIDERATION TO SUCH LITIGANT. FURTHER ITA NO. 2494/MUM./2018 SHRI NIMESH JABARMAL CHANDANI 4 THE LENGTH OF DELAY IS IMMATERIAL, IT IS THE ACCEPTABILITY OF THE EXPLANATION AND THAT IS THE ONLY CRITERIA FOR CONDONING THE DELAY. 6 . IN SUCH A SITUA TION, NO 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 APPEALS ARE TO BE FILED IN TERMS O F THE RELEVANT PROVISIONS OF 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 THE REVENUE IN FILING THE APPEALS. IN MATTERS CONCERNING THE FILING OF APPEALS, IN EXERCISE 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 POW ER TO LEGALIZE INJUSTICE ON TECHNICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. 7 . 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 SUBSTANTIAL 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 ITA NO. 2494/MUM./2018 SHRI NIMESH JABARMAL CHANDANI 5 PARTY, IN A DISPUTE, CANNOT HAVE A VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON - DELIBERATE 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 ASSESSEE, 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 PURPOS E OF THE EXISTENCE OF THE INSTITUTION OF THE COURTS. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATION ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED. THIS MEANS THAT THERE SHOULD BE NO MALAFIDE OR DILATORY TAC TICS. SUFFICIENT CAUSE SHOULD RECEIVE LIBERAL CONSTRUCTION TO ADVANCE SUBSTANTIAL JUSTICE. THE HONBLE APEX COURT IN COLLECTOR, LAND ACQUISITION VS MST. KATIJI & ORS. (167 ITR 471) OBSERVED AS UNDER: - 3. THE LEGISLATURE HAS CONFERRED THE POWER TO CONDON E 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 EMPLOYED BY THE LEGISLATURE IS ADEQUATELY ELASTIC TO ENA BLE 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 MAKING A JUSTIFIABLY LIBERAL APPROACH IN M ATTERS INSTITUTED IN THIS COURT. BUT THE MESSAGE ITA NO. 2494/MUM./2018 SHRI NIMESH JABARMAL CHANDANI 6 DOES NOT APPEAR TO HAVE PERCOLATED DOWN TO ALL THE OTHERS COURTS IN THE HIERARCHY. 8 . IN THE LIGHT OF THE ABOVE JUDICIAL PRONOUNCEMENTS AND KEEPING IN VIEW THE PRINCIPLE S OF NATURAL JUSTICE , WE ARE OF T HE CONSIDERED VIEW THAT THE LIS BETWEEN THE PARTIES BE DECIDED ON MERITS AND NO PER SON SHOULD BE CONDEMNED UNHEARD. T HEREFORE, THE DELAY ON THE PART OF THE ASSESSEE IN FILING APPEAL BEFORE LD. CIT(A) IS CONDONED AND THE APPEAL IS REMANDED BACK TO THE FILE OF LD. CIT(A) TO DECIDE THE APPEAL FILED BY THE ASSESSEE ON MERITS. IT IS NEEDLESS HERE TO MENTION THAT BEFORE PASSING THE ORDER OF ASSESSMENT, LD. CIT(A) SHALL PROVIDE SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSE. BEFORE PARTING, WE MAY MAKE IT CLEAR THAT OUR DECISION TO RESTORE T HE MATTER BACK TO THE FILE OF LD. CIT(A) SHALL IN NO WAY BE CONSTRUED AS HAVING ANY REFLECTION OR EXPRESSION ON THE MERITS OF THE DISPUTE, WHICH SHALL BE ADJUDICATED BY THE LD. CIT(A) INDEPENDENTLY IN ACCORDANCE WITH LAW. IN THE NET RESULT, APPEAL FILED BY THE ASSESSEE IS PARTLY A LLOWED FOR STATISTICAL PURPOSES . ORDER PRONOU NCED IN THE OPEN COURT ON 28 .11 .2018 SD/ - SD/ - B.R. BASKARAN SANDEEP GOSAIN ACCOUNTANT MEMBER JUDICIAL MEMBER ITA NO. 2494/MUM./2018 SHRI NIMESH JABARMAL CHANDANI 7 MUMBAI, DATED: 28 .11 .2018 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE. BY ORDER SHEKHAR PRIVATE SECRETARY (DY./ASSTT.REGISTRAR) ITAT, MUMBAI