Anoop Tea Co. Pvt. Ltd., Kolkata V. D.C.I.T,Circle-6(2), Kokata

ITA 312/KOL/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9872 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 20-02-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SANKAR HALDER
• Assessee Lawyers: ANIKESH BANERJEE
• Keywords: Condonation of delay; Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH KOLKATA [BEFORE SRI S. S. GODARA, JUDICIAL MEMBER] ./I.T.A NO.312/KOL/2019 ( [ [ / ASSESSMENT YEAR: 2010-11) ANOOP TEA CO. PVT. LTD. B-2/2 GILLANDER HOUSE 8 N S ROAD KOLKATA 700001. VS. DCIT, CIRCLE-6(2), KOLKATA. ./ ./PAN/GIR NO.: AACCA1872F (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI ANIKESH BANERJEE, ADVOCATE RESPONDENT BY : SHRI SANKAR HALDER, JCIT, SR. DR / DATE OF HEARING : 14/08/2019 /DATE OF PRONOUNCEMENT : 30/09/2019 / O R D E R PER SHRI S. S. GODARA: THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2010-11 ARISES AGAINST THE COMMISSIONER OF INCOME TAX (A) - 2, KOLKATA ORDER DATED 16.11.2018 PASSED IN CASE NO.10625/CIT(A)-2/2017-18 INVOLVING PROCEEDINGS U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. FOR THE REASON STATED IN THE ASSESSEES CONTENTION PETITION AND ON ACCOUNT OF NO OBJECTION FROM THE REVENUE SIDE, I CONDONE THE IMPUGNED DELAY OF 20 DAYS IN FILING OF THE INSTANT APPEAL. THE SAME IS TAKEN UP FOR ADJUDICATION ON MERITS. 3. COMING TO THE MAIN CASE, IT TRANSPIRES AT THE OUTSET THAT THE LD. CIT(A) HAS REFUSED TO CONDONE 7 YEARS AND 202 DAYS DELAY IN FILING OF ASSESSEES APPEAL PREFERRED AGAINST THE RELEVANT INTIMATION DATED 09/02/2011 STATED TO HAVE BEEN RECEIVED THROUGH EMAIL ON 27.08.2014. THE ASSESSEE APPEARS TO HAVE FILED A I.T.A NO.312/KOL/2019 ANOOP TEA CO. PVT. LTD. PAGE | 2 CONDONATION PETITION ITS PERSON IN CHARGE/ACCOUNTED HAD QUIT THE JOB AND THEREFORE, IT COULD NOT INSTITUTE THE LOWER APPEAL WITHIN LIMITATION. THE CIT(A) HOLDS THE ASSESSEE TO BE NEGLIGENT, CARELESS AND HAVING ACTED WITHOUT ANY APPLICATION OF MIND. HE HAS NOT CONSIDERED THE MERITS OF THE ADDITION UNDER CHALLENGE OF RS.21,35,606/- ARISING FROM THE PROCESSING IN ISSUE. WE NOTICE IN THIS BACKDROP HONBLE APEX COURTS DECISION IN COLLECTOR LAND ACQUISITION VS. MST. KATIJI & ORS (1987) 167 ITR 471(SC) SETTLED THE LAW REGARDING CONDONATION OF DELAY AS FOLLOWS: 'ANY APPEAL OR ANY APPLICATION, OTHER THAN AN APPLICATION UNDER ANY OF THE PROVISIONS OF ORDER XXI OF THE CODE OF CIVIL PROCEDURE, 1908. MAY BE ADMITTED AFTER THE PRESCRIBED PERIOD IF THE APPELLANT OR THE APPLICANT SATISFIES THE COURT THAT HE HAD SUFFICIENT CAUSE FOR NOT PREFERRING THE APPEAL OR MAKING THE APPLICATION WITHIN SUCH PERIOD.' 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 THIS WHEN DELAY IS CONDONED THE HIGHEST THAT CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERITS 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 HOUR'S DELAY, EVERY SECOND'S DELAY? THE DOCTRINE MUST BE APPLIED IN A RATIONAL COMMON SENSE PRAGMATIC MANNER. 4. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS ARE PITTED AGAINST EACH OTHER, 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 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. MAKING A JUSTICE-ORIENTED APPROACH FROM THIS PERSPECTIVE, THERE WAS SUFFICIENT CAUSE FOR CONDONING THE DELAY IN THE INSTITUTION OF THE APPEAL. THE FACT THAT IT WAS THE 'STATE' WHICH WAS SEEKING CONDONATION AND NOT A PRIVATE PARTY WAS ALTOGETHER IRRELEVANT. THE DOCTRINE OF EQUALITY BEFORE LAW DEMANDS THAT ALL LITIGANTS, INCLUDING THE STATE AS A LITIGANT, ARE ACCORDED THE SAME TREATMENT AND THE LAW IS I.T.A NO.312/KOL/2019 ANOOP TEA CO. PVT. LTD. PAGE | 3 ADMINISTERED IN AN EVEN HANDED MANNER. THERE IS NO WARRANT FOR ACCORDING A STEPMOTHERLY TREATMENT WHEN THE 'STATE' IS THE APPLICANT PRAYING FOR CONDONATION OF DELAY. IN FACT EXPERIENCE SHOWS THAT ON ACCOUNT OF AN IMPERSONAL MACHINARY (NO ONE IN CHARGE OF THE MATTER IS DIRECTLY HIT OR HURT BY THE JUDGMENT SOUGHT TO BE SUBJECTED TO APPEAL) AND THE INHERITED BUREAUCRATIC METHODOLOGY IMBUED WITH THE NOTE-MAKING, FILE PUSHING, AND PASSING-ON-THE-BUCK ETHOS, DELAY ON ITS PART IS LESS DIFFICULT TO UNDERSTAND THOUGH MORE DIFFICULT TO APPROVE. IN ANY EVENT, THE STATE WHICH REPRESENTS THE COLLECTIVE CAUSE OF THE COMMUNITY, DOES NOT DESERVE A LITIGANT-NON-GRATA STATUS. THE COURTS THEREFORE HAVE TO BE INFORMED WITH THE SPIRIT AND PHILOSOPHY OF THE PROVISION IN THE COURSE OF THE INTERPRETATION OF THE EXPRESSION 'SUFFICIENT CAUSE'. SO ALSO THE SAME APPROACH HAS TO BE EVIDENCED IN ITS APPLICATION TO MATTERS AT HAND WITH THE END IN VIEW TO DO EVEN HANDED JUSTICE ON MERTIS IN PREFERENCE TO THE APPROACH WHICH SCUTTLES A DECISION ON MERITS. TURNING TO THE FACTS OF THE MATTER GIVING RISE TO THE PRESENT APPEAL, WE ARE SATISFIED THAT SUFFICIENT CAUSE EXISTS FOR THE DELAY. THE ORDER OF THE HIGH COURT DISMISSING THE APPEAL BEFORE IT AS TIME BARRED, IS THEREFORE SET ASIDE. DELAY IS CONDONED. AND THE MATTER IS REMITTED TO THE HIGH COURT. THE HIGH COURT WILL NOW DISPOSE OF THE APPEAL ON MERITS AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING TO BOTH THE SIDES. APPEAL IS ALLOWED ACCORDINGLY. NO COSTS. 4. I THEREFORE HOLD THAT THE CASE OF SUBSTANTIAL JUSTICE MUST PREVAIL OVER ALL TECHNICAL ASPECTS AND CONDONE THE ASSESSEES DELAY IN FILING FIRST APPEAL ON ACCOUNT OF CIRCUMSTANCES BEYOND ITS CONTROL. THE CIT(A) IS DIRECTED TO DECIDE ITS SUBSTANTIAL GRIEVANCE RAISED IN THE LOWER APPEAL ON MERITS WITHIN THREE EFFECTIVE OPPORTUNITIES OF HEARING. 5. THIS ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES IN FOREGOING TERMS. ORDER IS PRONOUNCED IN THE OPEN COURT ON 30.09.2019. SD/- (S. S. GODARA) JUDICIAL MEMBER /KOLKATA; / DATE: 30/09/2019 (RS, SR.PS) I.T.A NO.312/KOL/2019 ANOOP TEA CO. PVT. LTD. PAGE | 4 / COPY OF THE ORDER FORWARDED TO : TRUE COPY BY ORDER ASSISTANT REGISTRAR, I.T.A.T, KOLKATA BENCHES, KOLKATA . 1. THE APPELLANT - ANOOP TEA CO. PVT. LTD. 2. THE RESPONDENT- DCIT, CIRCLE-6(2), KOLKATA. 3. ( ) / THE CIT(A), KOLKATA [SENT THROUGH EMAIL] 4. / CIT 5. , , / DR, ITAT, KOLKATA [SENT THROUGH EMAIL] 6. [ / GUARD FILE.