RAM KISHORE KHANDELWAL, JAIPUR V. ITO, WARD-6(2), JAIPUR

ITA 269/JPR/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6410 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-08-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2015-2016
• Appeal Filed On: 05-06-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: P.C. SHARMA
• Keywords: Period of limitation; Reasonable cause; Condonation of delay
• Section: 250; 13; 22

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES B, JAIPUR JH LANHI XLKA ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA -@ ITA NO. 269/JP/2020 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2015-16 SHRI RAM KISHORE KHANDELWAL, A-19, JAI JAWAN COLONY-I, TONK ROAD, JAIPUR-302018. CUKE VS. I.T.O., WARD 6(2), JAIPUR. LFKK;H YS[KK LA -@THVKBZVKJ LA-@ PAN/GIR NO.: ACWPK 9167 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY: SHRI P.C. SHARMA (ADV.) JKTLO DH VKSJ LS @ REVENUE BY: SMT. RUNI PAL(ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 29/07/2021 MN?KKS 'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 16/08/2021 VKNS'K@ ORDER PER: SANDEEP GOSAIN, J.M. THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A)-2, JAIPUR DATED 31/01/2020 FOR THE A.Y. 2015-16. 2. THE HEARING OF THE APPEAL WAS CONCLUDED THROUGH VIDEO CONFERENCE IN VIEW OF THE PREVAILING SITUATION OF COVID-19 PANDEMIC. 3. IN THIS APPEAL, THERE IS DELAY OF 53 DAYS IN FILING THE PRESENT APPEAL. IN THIS APPEAL ALSO, THE ASSESSE HAS APPLIED FOR WITHDRAWAL OF THIS APPEAL. DURING THE COURSE OF HEARING, THE LD AR SUBMITTED THAT THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER PASSED BY THE LD. CIT(A) ALONGWITH AN APPLICATION SEEKING CONDONATION OF DELAY. IT WAS SUBMITTED THAT THE ASSESSEE ITA 269/JP/2020_ SH. RAM KISHORE KHANDELWAL VS ITO 2 WISHES TO RESOLVE THIS MATTER AND HAS SINCE MOVED AN APPLICATION UNDER VIVAD SE VISHWAS SCHEME, 2020. THE A.O. HAS ENQUIRED ABOUT THE STATUS OF THE CONDONATION OF DELAY APPLICATION FILED BEFORE THE TRIBUNAL IN ORDER TO TAKE APPROPRIATE ACTION UNDER VIVAD SE VISHWAS SCHEME AND IT WAS THEREFORE REQUESTED TO CONSIDER THE ASSESSEES CONDONATION APPLICATION. 4. IN HIS CONDONATION APPLICATION, THE ASSESSEE HAS SUBMITTED AS UNDER: I ENCLOSE HEREWITH AN APPEAL UNDER SECTION 253(1) OF THE INCOME TAX ACT, 1961, AGAINST THE ORDER OF THE COMMISSIONER (APPEALS-II) JAIPUR RELATING TO ASSESSMENT YEAR 2015-16 MADE UNDER SECTION 250 OF THE ACT ON 31' JANUARY, 2020, WHICH WAS COMMUNICATED TO ME ON THE 13 TH OF FEBRUARY, 2020. ALTHOUGH THIS APPEAL SHOULD HAVE BEEN FILED IN THE OFFICE OF THE TRIBUNAL ON OR BEFORE 13T H APRIL, 2020, COUNTING THE PERIOD OF 60 DAYS FROM THE AFORESAID DATE OF COMMUNICATION OF THE ORDER BUT DESPITE PAYMENT OF APPEAL FILING FEE ON 21.03.2020 IT COULD NOT BE FILED BECAUSE OF THE LOCK DOWN IMPOSED BY THE STATE GOVERNMENT FROM 23 TH OF MARCH, 2020 AND THEREAFTER BY THE CENTRAL GOVERNMENT FROM 25 TH OF MARCH, 2020 DUE TO COVID 19 WHICH LATER GOT EXTENDED BY THE GOVERNMENT FROM TIME TO TIME. I THEREFORE, PRAY THAT THE DELAY IN FILING THIS APPEAL MAY PLEASE BE CONDONED UNDER SUB-SECTION (5) OF SECTION 253 OF THE INCOME TAX ACT, 1961, AND THE APPEAL MAY BE ADMITTED FOR HEARING ON MERITS. 5. IT WAS SUBMITTED BY THE LD AR THAT THERE WAS NO MALAFIDE OR DELIBERATE DELAY IN FILING THE PRESENT APPEAL AND IN THE INTEREST OF SUBSTANTIAL JUSTICE, THE DELAY IN FILING THE PRESENT APPEAL MAY BE CONDONED AND THE APPEAL BE ADMITTED FOR ADJUDICATION. IT WAS FURTHER SUBMITTED THAT THERE IS NO PREJUDICE ITA 269/JP/2020_ SH. RAM KISHORE KHANDELWAL VS ITO 3 WHICH WILL BE CAUSED TO THE DEPARTMENT AS THE ASSESSEE HAS ALREADY MOVED AN APPLICATION FOR SETTLEMENT OF PRESENT DISPUTE AND PAYMENT OF TAXES. IN SUPPORT, RELIANCE WAS PLACED ON THE HONBLE DELHI HIGH COURTS DECISION IN CASE OF HL MALHOTRA & COMPANY PVT. LTD. VS DCIT, CIRCLE-12, NEW DELHI (ITA NO. 211/2020 & CM APPEALS 32045-32047/2020 DATED 22 ND DECEMBER, 2020) WHEREIN DELAY OF 498 DAYS IN FILING WAS CONDONED BY THE HONBLE DELHI HIGH COURT AND IT WAS HELD THAT IN ABSENCE OF ANYTHING MALE FIDE OR DELIBERATE DELAY AS A DILATORY TACTIC, THE COURT SHOULD NORMALLY CONDONE THE DELAY AS THE INTENT IS ALWAYS TO PROMOTE SUBSTANTIAL JUSTICE FOLLOWING THE HONBLE SUPREME COURT DECISIONS IN THE CASE OF COLLECTOR, LAND ACQUISITION, ANANTNAG & ANR. VS MST. KATIJI AND OTHERS (1987) 2 SCC 107 AND N. BALAKRISHNAN VS M. KRISHNAMURTHY 1998 (7) SCC 123. 6. PER CONTRA, THE LD. DR SUBMITTED THAT THERE IS A SUBSTANTIAL DELAY OF 53 DAYS IN FILING THE PRESENT APPEAL BY THE ASSESSEE AND THE APPLICATION SO FILED BY THE ASSESSEE DOES NOT REFLECT ANY REASONABLE CAUSE ON THE PART OF THE ASSESSEE FOR THE DELAY IN FILING THE PRESENT APPEAL. SHE ACCORDINGLY OPPOSED CONDONING THE DELAY IN FILING THE PRESENT APPEAL. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PURSUED THE MATERIAL AVAILABLE ON RECORD. THERE IS NO DISPUTE AND IS AN ADMITTED FACT THAT THERE HAS BEEN A DELAY IN FILING THE PRESENT APPEAL BY 53 DAYS. THERE IS ALSO NO DISPUTE THAT ITA 269/JP/2020_ SH. RAM KISHORE KHANDELWAL VS ITO 4 UNDER SECTION 253(5) OF THE ACT, THE TRIBUNAL MAY ADMIT AN APPEAL FILED BEYOND THE PERIOD OF LIMITATION WHERE IT IS SATISFIED THAT THERE EXISTS A SUFFICIENT CAUSE ON THE PART OF THE ASSESSEE FOR NOT PRESENTING THE APPEAL WITHIN THE PRESCRIBED TIME. THE EXPLANATION OF THE ASSESSEE THEREFORE BECOMES RELEVANT TO DETERMINE WHETHER THE SAME REFLECTS SUFFICIENT AND REASONABLE CAUSE ON HER PART IN NOT PRESENTING THE PRESENT APPEAL WITHIN THE PRESCRIBED TIME. IN THE INSTANT CASE, IT HAS BEEN STATED BY THE ASSESSEE THAT DUE TO LOCK DOWN IMPOSED BY THE STATE GOVERNMENT FROM 23 TH OF MARCH, 2020 AND THEREAFTER BY THE CENTRAL GOVERNMENT FROM 25 TH OF MARCH, 2020 DUE TO COVID 19 WHICH LATER GOT EXTENDED BY THE GOVERNMENT FROM TIME TO TIME. DUE TO WHICH, THE APPEAL COULD NOT BE FILED ON TIME BEFORE THE TRIBUNAL. 8. IN CASE OF COLLECTOR, LAND ACQUISITION VS MST KATIJI (SUPRA), THE HON'BLE SUPREME COURT HAS HELD THAT THE EXPRESSION SUFFICIENT CAUSE EMPLOYED BY THE LEGISLATURE IS ADEQUATELY ELASTIC TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER TO SUB-SERVES THE ENDS OF JUSTICE THAT BEING THE LIFE-PURPOSE OF THE EXISTENCE OF THE INSTITUTION OF COURTS. IT WAS FURTHER HELD BY THE HONBLE SUPREME COURT THAT SUCH LIBERAL APPROACH IS ADOPTED ON ONE OF THE PRINCIPLES THAT 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 ITA 269/JP/2020_ SH. RAM KISHORE KHANDELWAL VS ITO 5 PARTIES. ANOTHER PRINCIPLE LAID DOWN BY THE HONBLE SUPREME COURT IS THAT 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. IT WAS ALSO HELD BY THE HONBLE SUPREME COURT THAT THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONED DELIBERATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE, OR ON ACCOUNT OF MALE FIDES. A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY. IN FACT, HE RUNS A SERIOUS RISK. IN THE INSTANT CASE, APPLYING THE SAME PRINCIPLES, WE FIND THAT THERE IS NO CULPABLE NEGLIGENCE OR MALAFIDE ON THE PART OF THE ASSESSEE IN DELAYED FILING OF THE PRESENT APPEAL AND IT DOES NOT STAND TO BENEFIT BY RESORTING TO SUCH DELAY MORE SO CONSIDERING THE FACT THAT IT HAS APPLIED FOR SETTLEMENT OF PRESENT DISPUTE AND PAYMENT OF APPROPRIATE TAXES. THEREFORE, IN THE FACTUAL MATRIX OF THE PRESENT CASE, WE FIND THAT THERE EXISTS SUFFICIENT AND REASONABLE CAUSE FOR CONDONING THE DELAY IN FILING THE PRESENT APPEAL AND AS HELD BY THE HONBLE SUPREME COURT, WHERE SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVED TO BE PREFERRED. 9. IN LIGHT OF AFORESAID DISCUSSIONS, IN EXERCISE OF POWERS UNDER SECTION 253(5) OF THE ACT, WE HEREBY CONDONE THE DELAY IN FILING THE PRESENT APPEAL AS WE ARE SATISFIED THAT THERE WAS SUFFICIENT CAUSE FOR NOT PRESENTING THE ITA 269/JP/2020_ SH. RAM KISHORE KHANDELWAL VS ITO 6 APPEAL WITHIN THE PRESCRIBED TIME AND THE APPEAL IS HEREBY ADMITTED FOR ADJUDICATION ON MERITS. 10. SINCE, THE ASSESSEE HAS APPLIED FOR WITHDRAWAL OF THIS APPEAL ON THE GROUND THAT THE ASSESSEE HAS OPTED VIVAD SE VISHWAS SCHEME AND THE DEPARTMENT HAS ISSUED FORM NO. 3, THEREFORE, WE PERMIT THE ASSESSEE TO WITHDRAW THIS APPEAL. 11. IN THE RESULT, THIS APPEAL FILED BY THE ASSESSEE IS DISMISSED AS WITHDRAWN. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH AUGUST, 2021. SD/- SD/- FOE FLAG ;KNO LANHI XLKA (VIKRAM SINGH YADAV) (SANDEEP GOSAIN) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 16/08/2021 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI RAM KISHORE KHANDELWAL, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE I.T.O., WARD 6(2), JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 269/JP/2020) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR