Meghraj Kesaji Chaudhari, Nashik V. Deputy Commissioner of Income tax,

ITA 2785/PUN/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2138 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 6 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 12-06-2019
• Assessment Year: 2012-2013
• Appeal Filed On: 09-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Condonation of delay; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE . , , , BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO . 2785 /PUN/201 6 / ASSESSMENT YEAR : 20 12 - 13 SHRI MEGHRAJ KESAJI CHAUDHARI, PROP. MADHUR FOOD PLAZA, PIPELINE ROAD, ANADWALLI, NASHIK 422013 PAN : AEHPC0396N ....... / APPELLANT / V/S. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 1, NASHIK / RESPONDENT ASSESSEE BY : SHRI SANKET JOSHI REVENUE BY : SHRI RAJESH GAWALI / DATE OF HEARING : 1 2 - 06 - 2019 / DATE OF PRONOUNCEMENT : 19 - 06 - 2019 / ORDER PER VIKAS AWASTHY, JM : TH IS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 1, NASHIK DATED 03 - 10 - 2016 FOR THE ASSESSMENT YEAR 2012 - 13. 2. SHRI SANKET JOSHI APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE FIRST APPELLATE AUTHORITY HAS DISMISSED THE APPEAL OF ASSESSEE IN 2 ITA NO . 2785/PUN/2016, A.Y. 2012 - 13 LIMINE , BEING BARRED BY LIMITATION. THERE WAS DELAY OF 115 DAYS IN FILING OF APPEAL. THE ASSESSEE HAD FILED AN APPL ICATION SEEKING CONDONATION OF DELAY CITING REASONS FOR DELAY IN FILING OF APPEAL. HOWEVER, THE COMMISSIONER OF INCOME TAX (APPEALS) HELD THAT THE REASONS GIVEN BY THE ASSESSEE DOES NOT FALL WITHIN THE MEANING OF SUFFICIENT CAUSE FOR CONDONING THE DELAY AND HENCE , DISMISSED THE APPEAL ON THE GROUND OF LIMITATION. THE LD. AR HAS FILED AN AFFIDAVIT OF ASSESSEE CITING REASONS RESULTING IN DELAY IN FILING OF FIRST APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). THE LD. AR SUBMITTED THAT THE ASSESSE E IS A NATIVE OF RAJASTHAN AND IS RUNNING A SMALL TIME SWEETS SHOP IN NASHIK. THE COPY OF ASSESSMENT ORDER WAS DELIVERED TO THE SHOP OF ASSESSEE ON 09 - 04 - 2015. THE COPY WAS RECEIVED BY ONE OF THE EMPLOYEES OF ASSESSEE. BY THE TIME THE COPY OF ASSESSMENT ORDER WAS RECEIVED , T HE ASSESSEE HAD ALREADY LEFT FOR HIS NATIVE VILLAGE IN RAJASTHAN. THE ASSESSEE HAD GONE TO RAJASTHAN TO FIX MARRIAGE OF HIS DAUGHTER. THEREAFTER, THE ASSESSEE HAD TO ATTEND HER AGED AND AILING MOTHER WHO WAS AROUND 90 YEARS OF AGE. BY THE TIME THE ASSESSEE RETURNED FROM HIS NATIVE VILLAGE IN THE MONTH OF AUGUST, 2015 , T HE DUE DATE FOR FILING APPEAL HAD ALREADY ELAPSED. THE ASSESSEE IMMEDIATELY CONTACTED HIS TAX CONSULTANT AND FILED APPEAL ON 01 - 09 - 2015. IN THE PROCESS , THE APPEAL GOT DELAY BY 115 DAYS. 3. ON THE OTHER HAND SHRI RAJESH GAWALI REPRESENTING THE DEPARTMENT VEHEMENTLY DEFENDED THE IMPUGNED ORDER. THE LD. DR SUBMITTED THAT THE REASONING GIVEN BY ASSESSEE RESULTING IN DELAY IS GENERIC AND NOT SUPPORTED BY ANY EVIDENCE . THE ASSESSEE HAS TO EXPLAIN EACH AND EVERY DAYS DELAY IN FILING OF THE APPEAL. 3 ITA NO . 2785/PUN/2016, A.Y. 2012 - 13 4. W E HAVE HEARD THE SUBMISSIONS MADE BY REPRESENTATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS DISMISSED THE APPEAL OF ASSESSEE IN LIMINE ON THE GROUND OF LIMITATION , REJECTING THE EXPLANATION FURNISHED BY THE ASSESSEE. 5. THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF RAM NATH SAO @ RAM NATH SAHU AND OTHERS VS. GOBARDHAN SAO AND OTHERS REPORT ED AS 2002 AIR 1201 HAS HELD THAT , ACCEPTANCE OF EXPLANATION FURNISHED SEEKING CONDONATION OF DELAY SHOULD BE THE RULE AND REFUSAL AN EXCEPTION, MORE SO WHEN NO NEGLIGENCE OR INACTION OR WANT OF BONAFIDE CAN BE IMPUTED TO THE DEFAULTING PARTIES. TAKING A PEDANTIC AND HYPER TECHNICAL VIEW OF THE MATTER, THE EXPLANATION FURNISHED SHOULD NOT BE REJECTED WHEN STAKES ARE HIGH AND/OR ARGUABLE POINTS OF FACTS AND LAW ARE INVOLVED IN THE CASE, CAUSING ENORMOUS LOSS AND IRREPARABLE INJURY TO THE PARTY AGAINST WHOM THE LIS TERMINATES EITHER BY DEFAULT OR INACTION. 6. THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF COLLECTOR, LAND ACQUISIT I ON VS. MST. KAT I JI & ORS. REPORTED AS 167 ITR 471 HAS LAID DOWN THE PRINCIPLES TO BE ADOPTED WHILE DEALING WITH THE ISSUE OF CONDONATION OF DELAY IN LODGING THE APPEAL. THE SAME ARE REPRODUCED HERE - IN - BELOW : THE EXPRESSION 'SUFFICIENT CAUSE' EMPLOYED BY THE LEGISLATURE IS ADEQUATELY ELASTIC TO ENABLE 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 MATTERS INSTITUTED IN THIS COURT. BUT THE MESSAGE DOES NOT APPEAR TO HAVE PERCOLA TED DOWN TO ALL THE OTHER COURTS IN THE HIERARCHY. AND SUCH A LIBERAL APPROACH IS ADOPTED ON PRINCIPLE AS IT IS REALIZED THAT: 1. ORDINARILY, A LITIGANT DOES NOT STAND TO BENEFIT BY LODGING AN APPEAL LATE. 2. 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 4 ITA NO . 2785/PUN/2016, A.Y. 2012 - 13 THIS, WHEN DELAY IS CONDONED, THE HIGHEST THAT CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERITS AFTE R HEARING THE PARTIES. 3. 'EVERY DAY'S DELAY MUST BE EXPLAINED' DOES NOT MEAN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOUR'S DELAY, EVERY SECOND'S DELAY ? THE DOCTRINE MUST BE APPLIED IN A RATIONAL COMMON SENSE AND PRAGMATIC MANNER. 4. WHE N 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. 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 TO DELAY. IN FACT, HE RUNS A SERIOUS RISK. 6. IT MUST BE GRASPED THAT THE JUDICIARY IS RESPECTED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. 7. THE EXPLANATION FURNISHED BY THE ASSESSEE EXPLAINING DELAY IN FILING OF APPEAL HAS TO BE LIBERALLY ACCEPTED , ESPECIALLY WHEN A MINNOW S UBJECT IS PITTED AGAINST A MIGHTY S TATE. TAKING INTO CONSIDERATION THE TOTALITY OF FACTS , THE REASONS FURNISHED BY THE ASSESSEE FOR DELAY IN FILING OF APPEAL AND IN THE INTEREST OF JUSTICE , WE CONDONE T HE DELAY IN FILING OF FIRST APPEAL AND RESTORE THIS APPEAL BACK TO THE FILE OF COMMISSIONER OF INCOME TAX (APPEALS) FOR ADJUDICATION ON MERITS OF ADDITION AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE, IN ACCORDANCE WITH LAW. 8. IN T HE RESULT, THE IMPUGNED ORDER IS SET ASIDE AND THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON WEDNESDAY, THE 19 TH DAY OF JUNE, 2019. SD/ - SD/ - ( . /D. KARUNAKARA RAO ) ( / VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 19 TH JUNE, 2019 RK 5 ITA NO . 2785/PUN/2016, A.Y. 2012 - 13 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 1, NASHIK 4. THE PR. COMMISSIONER OF INCOME TAX - 1, NASHIK 5. , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE