Gujarat Industrial Security Force Society, Ahmedabad V. The ADIT(Exemp.), Ahmedabad

ITA 2739/AHD/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9833 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 15-12-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 25-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P B PARMAR
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH (BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) ITA. NO: 2739/AHD/2013 (ASSESSMENT YEAR: 2009-10) GUJARAT INDUSTRIAL SECURITY FORCE SOCIETY, 0-1, NEW MENTAL HOSPITAL MEGHANINAGAR, AHMEDABAD V/S THE ADIT (EXEMPTION), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AAAAG0372L APPELLANT BY : SHRI P.B. PARMAR, AR RESPONDENT BY : SHRI PRASOON KABRA, SR. D.R. ( )/ ORDER DATE OF HEARING : 15 -12-201 6 DATE OF PRONOUNCEMENT : 16 -12-2016 PER N.K. BILLAIYA, ACCOUNTANT MEMBER 1. THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF LD. CIT(A), AHMEDABAD DATED 30.10.2013 PERTAINING TO A.Y. 2009- 10. ITA NO . 273 9/AHD/2013 . A.Y. 2009-1 0 2 2. THE MAIN GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) DISMISSED THE APPEAL WITHOUT CONDONING THE DELAY OF 71DAYS. THE A SSESSEE CLAIMS THAT THE LD. CIT(A) SHOULD HAVE CONSIDERED THE MERITS OF THE CASE AND THEN DECIDED THE ISSUE RATHER THAN DISMISSING THE APPEAL ON TECH NICAL GROUNDS. 3. WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF THE AU THORITIES BELOW. IT IS A FACT THAT THE APPEAL OF THE ASSESSEE BEFORE THE FIR ST APPELLATE AUTHORITY WAS LATE BY 71 DAYS. THE ASSESSEE HAS ALSO GIVEN RE ASONS FOR THE DELAY AND HAS PRAYED FOR THE CONDONATION OF THE SAME. THE FIR ST APPELLATE AUTHORITY DISMISSED THE APPEAL WITHOUT CONDONING THE DELAY AN D WITHOUT GOING INTO THE MERITS OF THE CASE. 4. THE HONBLE SUPREME COURT IN THE CASE OF VEDABHAI @ VAIJAYNATABAI BABURAO PATIL 253 ITR 798 HAS LAID DOWN THE FOLLOWI NG RATIO:- IN EXERCISING DISCRETION UNDER SECTION 5 OF THE LI MITATION ACT, 1963, TO CONDONE DELAY FOR SUFFICIENT CAUSE IN NOT PREFERRING AN APP EAL OR OTHER APPLICATION WITHIN THE PERIOD PRESCRIBED, COURTS SHOULD ADOPT A PRAGMA TIC APPROACH. A DISTINCTION MUST BE MADE BETWEEN A CASE WHERE THE DELAY IS INOR DINATE AND A CASE WHERE THE DELAY IS OF A FEW DAYS. WHEREAS IN THE FORMER C ONSIDERATION OF PREJUDICE TO THE OTHER SIDE WILL BE A RELEVANT FACTOR AND CALLS FOR A MORE CAUTIOUS APPROACH, IN THE LATTER CASE NO SUCH CONSIDERATION MAY ARISE AND SUCH A CASE DESERVES A LIBERAL APPROACH. NO HARD AND FAST RULE CAN BE LAID DOWN IN THIS REGARD. THE COURT HAS TO EXERCISE ITS DISCRETION ON THE FACTS OF EACH CASE K EEPING IN MIND THAT IN CONSTRUING THE EXPRESSION 'SUFFICIENT CAUSE' THE PRINCIPLE OF AD VANCING SUBSTANTIAL JUSTICE IS OF PRIME IMPORTANCE. THE EXPRESSION 'SUFFICIENT CAUS E' SHOULD RECEIVE A LIBERAL CONSTRUCTION. ITA NO . 273 9/AHD/2013 . A.Y. 2009-1 0 3 5. THE HONBLE SUPREME COURT IN THE CASE OF COLLECTOR LAND ACQUISITION IN 167 ITR 471 HAD LAID DOWN THE FOLLOWING RATIO:- THE LEGISLATURE HAS CONFERRED POWER TO CONDONE DEL AY BY ENACTING SECTION 5 OF THE LIMITATION ACT, 1963, IN ORDER TO ENABLE THE CO URTS TO DO SUBSTANTIAL JUSTICE TO PARTIES BY DISPOSING OF MATTERS ON MERITS. THE EXPR ESSION SUFFICIENT CAUSE IN SECTION 5 IS ADEQUATELY ELASTIC TO ENABLE THE COURT S TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SUBSERVES THE ENDS OF JUSTI CE THAT BEING THE LIFE- PURPOSE OF THE EXISTENCE OF THE INSTITUTION OF COUR TS. A JUSTIFIABLY LIBERAL APPROACH HAS TO BE ADOPTED ON PRINCIPLE. EVERY DAYS DELAY MUST BE EXPLAINED DOES NOT IMPL Y A PEDANTIC APPROACH. THE DOCTRINE MUST BE APPLIED IN A RATIONAL, COMMON SENS E AND PRAGMATIC MANNER. THE DOCTRINE OF EQUALITY BEFORE LAW DEMANDS THAT AL L LITIGANTS, INCLUDING THE STATE AS A LITIGANT, ARE ACCORDED THE SAME TREATMEN T AND THE LAW IS ADMINISTERED IN AN EVENHANDED MANNER. THERE IS NO WARRANT FOR AC CORDING A STEP-MOTHERLY TREATMENT WHEN THE STATE IS THE APPLICANT PRAYING F OR CONDONATION OF DELAY. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATI ONS 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 BE ING DONE BECAUSE OF A NON- DELIBERATE DELAY. 6. IN THE LIGHT OF THE AFOREMENTIONED RATIOS LAID DOWN BY THE HONBLE SUPREME COURT, IN OUR CONSIDERED OPINION, THE FIRST APPELLA TE AUTHORITY OUGHT TO HAVE CONDONED THE DELAY AND DECIDED THE APPEAL ON M ERITS OF THE CASE. WE, THEREFORE, SET ASIDE THE ORDER OF THE LD. CIT(A ) AND RESTORE THE MATTER TO HIS FILE. THE FIRST APPELLATE AUTHORITY IS DIREC TED TO CONDONE THE DELAY AND DECIDE THE ISSUE AFRESH ON MERITS OF THE CASE A FTER GIVING A REASONABLE AND FAIR OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . ITA NO . 273 9/AHD/2013 . A.Y. 2009-1 0 4 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 16 - 12- 20 16. SD/- SD/- (MAHAVIR PRASAD) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY ACCOUNTANT MEMBER AHMEDABAD: DATED 16 /12/2016 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD