Shri Manjinder Singh, Chandigaarh V. ITO Ward-5(2), Chandigarh

ITA 271/CHANDI/2020

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 4891 (ITAT-CHANDIGARH)
• Duration Of Justice: 7 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-01-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 18-06-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Period of limitation; Time period of passing order; Condonation of delay
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE MRS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER & SHRI R.L NEGI, JUDICIAL MEMBER ITA NO. 271/CHD/2020) / ASSESSMENT YEAR : 2010-11 SHRI MANJINDER SINGH, # 332, SECTOR 44A-, CHANDIGARH THE INCOME TAX OFFICER, WARD-5(2), CHANDIGARH ./PAN NO: BICPS9577B APPELLANT /RESPONDENT HEARING THROUGH VIDEO CONFERENCING /ASSESSEE BY : SHRI PARIKSHIT AGGARWAL, CA ! / REVENUE BY : SMT. MEENAKSHI VOHRA, ADDL. CIT SHRI ASHOK KHANNA, ADDL CIT ' #$ /DATE OF HEARING : 28.01.2021 %&'($ / DATE OF PRONOUNCEMENT : 28..01.2021 / ORDER PER R.L. NEGI, JUDICIAL MEMBER: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST T HE ORDER DATED 30.6.2017 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-2, GURGAON, [(FOR SHORT THE CIT(A)], PERTAINING TO TH E ASSESSMENT YEAR 2010-11, WHEREBY THE LD. CIT(A) HAS PARTLY ALLOWED THE APPEAL FILED BY THE ASSESSEE AGAINST THE ASSESSMENT ORDER PASSED U/ S 144 OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT'). 2. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED BEFORE US THAT THE ASSESSEE WANTS TO SETTLE HIS DIS PUTE UNDER VIVAD SE VISHWAS SCHEME 20209. HOWEVER, THERE IS THERE IS A DELAY OF 89 DAYS IN ITA NO. 271-CHD-2020- SHRI MANJINDER SINGH, CHANDIGARH 2 FILING THE PRESENT APPEAL AND THE ASSESSEE HAS FILE D AN APPLICATION FOR CONDONATION OF DELAY DULY SUPPORTED BY AN AFFIDAVIT . THE LD. COUNSEL FURTHER SUBMITTED THAT AS PER THE CBDT CIRCULAR NO. 21/2020 DATED 04/12/2020, THE APPELLANT/ASSESSEE IS ELIGIBLE TO O PT FOR THE SCHEME IN SUCH CASES, IF THE APPELLATE AUTHORITY CONCERNED CO NDONES THE DELAY IN SUCH CASES. 3. THE LD. COUNSEL FURTHER SUBMITTED THAT APPELLANT /ASSESSEE BEING NON-RESIDENT INDIAN REMAINED OUT OF COUNTRY DURING THE PERIOD FROM 07.07.2017 TO 26.06.18, DUE TO WHICH HE DID NOT REC EIVE THE IMPUGNED ORDER PASSED BY THE LD. (CITA). THE LD. COUNSEL INV ITED OUR ATTENTION TO THE COPIES OF THE PASSPORT AND OTHER DOCUMENTS ATTA CHED WITH THE APPLICATION TO SUBSTANTIATE THE CONTENTION OF THE A SSESSEE. THE LD. COUNSEL FURTHER SUBMITTED THAT THE ASSESSEE RECEIVE D COPY THE ORDER ON 21.1.2020. ACCORDINGLY, HE DEPOSITED THE APPEAL FEE ON 20.3.2020. HOWEVER, DUE TO NATIONWIDE LOCK-DOWN IN THE WAKE OF COVID-19, THE ASSESSEE COULD NOT OBTAIN THE NECESSARY DOCUMENTS F ROM THE CONCERNED QUARTERS FOR FILING THE PRESENT APPEAL. THE LD. COU NSEL FURTHER SUBMITTED THAT SINCE THE ASSESSEE COULD NOT FILE THE PRESENT APPEAL WITHIN LIMITATION PERIOD DUE TO THE CIRCUMSTANCES BEYOND HIS CONTROL, THE DELAY MAY BE CONDONED AND THE PRESENT APPEAL MAY BE DISMISSED AS WITHDRAWN SO THAT THE ASSESSEE MAY AVAIL THE BENEFIT OF THE PROVISION S OF VIVAD SE VISHWAS ACT,2020. ITA NO. 271-CHD-2020- SHRI MANJINDER SINGH, CHANDIGARH 3 4. ON THE OTHER HAND, THE LD. DR OPPOSED THE DELAY ON THE GROUND THAT THE REASONS STATED ARE NOT SUFFICIENT TO CONDONE TH E DELAY IN FILING THE PRESENT APPEAL. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AS POINTED OUT BY THE LD. COUN SEL, THE ASSESSEE REMAINED OUT OF THE COUNTRY DURING THE PERIOD 07.07 .2017 TO 26.6.2018. THE ASSESSEE HAS FURNISHED THE DOCUMENTARY EVIDENCE INCLUDING COPY OF PASSPORT TO PROVE THIS FACT. FURTHER, THE ASSESSEE HAS STATED IN HIS AFFIDAVIT THAT HE RECEIVED THE COPY OF THE IMPUGNED ORDER ON 21.1.2020 AND HE DEPOSITED THE REQUIRED APPEAL FEES ON 21.3.2 020, HOWEVER, DUE TO THE NATIONWIDE LOCK DOWN THE ASSESSEE COULD NOT FIL E THE PRESENT APPEAL WITH IN THE LIMITATION PERIOD. 8. THE HON'BLE SUPREME COURT IN THE CASE OF COLLECT OR, LAND ACQUISITION VS MST. KATIJI & ORS (1987) AIR 1353, 1 987 SCR (2) 387 HAS LAID DOWN THE PRINCIPLES OF LAW TO BE FOLLOWED WHIL E DEALING WITH THE ISSUE OF CONDONATION OF DELAY WHICH READ AS UNDER: - 1. ORDINARILY A LITIGANT DOES NOT STAND TO BENEFI T BY LODGING AN APPEAL LATE. 2. REFUSING TO CONDONE DELAY CAN RESULT IN A MERIT ORIOUS MATTER BEING THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTI CE 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 MEAN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOU R'S DELAY, ITA NO. 271-CHD-2020- SHRI MANJINDER SINGH, CHANDIGARH 4 EVERY SECOND'S DELAY? THE DOCTRINE MUST BE APPLIED IN A RATIONAL COMMON SENSE PRAGMATIC MANNER. 4. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDER ATIONS 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 OCCASIONE D DELIBERATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE, OR ON ACCOUNT OF MA LA 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 JUDICIARY IS RESPECTED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GROUNDS BU T BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. 7. IN THE PRESENT CASE, THE ASSESSEE COULD NOT FILE THE APPEAL WITHIN THE PERIOD OF LIMITATION DUE TO THE CIRCUMSTANCES B EYOND HIS CONTROL. IN OUR CONSIDERED VIEW, THE REASONS STATED BY THE ASSE SSEE ARE SUFFICIENT TO CONDONE THE DELAY. FURTHER, SINCE THE ASSESSEE INTE NDS TO OPT FOR VIVAD SE VISHWAS SCHEME, NO PREJUDICE IS GOING TO BE CAUS ED TO THE REVENUE IN CASE THE DELAY IS CONDONED. HENCE, IN THE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE PRINCIPLES OF LAW LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF LAND ACQUISITION VS MST. KATIJI & ORS (SUPRA) AND FURTHER IN VIEW OF THE FACT THAT THE A SSESSEE WANTS TO SETTLE THE ISSUES INVOLVED IN THE APPEAL UNDER THE PROVISIONS OF VIVAD SE VISHWAS ACT, WE CONDONE THE DELAY IN FILING THE PRE SENT APPEAL IN THE INTEREST OF JUSTICE AND DISMISS THE APPEAL OF THE A SSESSEE AS WITHDRAWN WITH THE LIBERTY TO FILE MISCELLANEOUS APPLICATION FOR RESTORATION OF ITA NO. 271-CHD-2020- SHRI MANJINDER SINGH, CHANDIGARH 5 APPEAL, IN CASE THE ASSESSEE DOES NOT GET RELIEF UN DER VIVAD SE VISWAS SCHEME. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS DIS MISSED AS WITHDRAWN.28.01.2021. ORDER PRONOUNCED ON 28.01.2021. SD/- SD/- ( ANNAPURNA GUPTA) (R.L.NEGI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : ** &+,-.- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ' / / CIT 4. ' / ( )/ THE CIT(A) 5. -012 , $2 , 34516 / DR, ITAT, CHANDIGARH 6. 157# / GUARD FILE &+ ' / BY ORDER, 8! / ASSISTANT REGISTRAR