Harekrushna Panigrahi, Bhubaneswar V. ACIT, Bhubaneswar

ITA 326/CTK/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4356 (ITAT-CUTTACK)
• Duration Of Justice: 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2011
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2001-2002
• Appeal Filed On: 14-06-2011
• Court: TRIBUNAL
• Department Lawyers: S C MOHANTY
• Assessee Lawyers: J M PATTANAIK
• Keywords: Salary income; Reasonable cause; Condonation of delay

Judgement Text

IN THE INCME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE : HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER, AND HONBLE SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER. ITA NO S . 326,327,328329,330,331, AND 332/CTK/2011 (AYS 2001 - 02, 2002 - 03,2003 - 04,2004 - 0 5,2005 - 06,2006 - 07 AND 2007 - 08 ) HAREKRUSHNA PANIGARHI , PLOT NO.258/2020/2508,SAILESHWAR VIHAR,BHUIBANESWAR. PAN: AELPP 9469 F VERSUS ASST.COMMISSIONER OF INCOME - TAX, CIRCLE 2(2), BHUBANESWAR (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI J.M.PATTANAIK , AR FOR THE RESPONDENT SHRI S.C.MOHANTY, DR ORDER SHRI K.K.GUPTA, ACCOUNTANT MEMBER : THESE APPEALS FOR THE ASSESSMENT YEARS 2001 - 02, 2002 - 03,2003 - 04,2004 - 05,2005 - 06,2006 - 07 AND 2007 - 08 BY THE ASSESSEE AGITATE THE ACTION OF THE LEARNED COMMISSIONER OF INCOME - TAX (APPEA LS) IN DISMISSING THE APPEALS, ON NOT CONDONING THE DELAY OF 139 DAYS IN FILING THE APPEALS BEFORE HIM , BY A CONSOLIDATED ORDER DT. 16.3.2011 . 2. THE ASSESSEE EARNED INCOME FROM SALARY FROM A PRIVATE SOURCE. AGAINST THE ASSESSMENTS U/S.14 3(3)/147 FOR ALL OF THE ASSESSMENT YEARS UNDER CONSIDERATION WHEN BANK DEPOSITS HAVE BEEN TAXED APART FROM SALARY IONCOME , THE ASSESSEE FILED APPEALS BEFORE THE COMMISSIONER OF INCOME - TAX (APPE ALS) WHICH WAS DELAYED BY 139 DAYS. REQUESTING CONDONATION OF S UCH DELAY, THE ASSESSEE FILED CONDONATION PETITION BEFORE THE LEARNED CIT(A) PETITION STATING THEREIN THAT THE DELAY WAS DUE TO PROLONGED SICKNESS OF THE ASSESSEE WHO WAS SUFFERING FROM PROLAPSE INTER VERTI DISC (PIVD) AND PERSONAL FAMILY PROBLEMS, WHICH THE LEARNED CIT(A) CONSIDERED NOT SUFFICIENT FOR CONDONATION OF DELAY OPINING THAT PIV IS NOT SUCH A DEBILITATING DISEASE IN ORDER TO INCAPACITATE SOMEBODY FROM FILING THE APPEALS AND ACCORDINGLY HE DISMISSED THE APPEALS FILED BEFORE HIM AS BARRED BY LIMI TATION. ITA NOS. 326,327,328329,330,331 , AND 332/CTK/2011 2 3. THE LEARNED COUNSEL FOR THE ASSESSEE VEHEMENTLY CONTENDED THAT THE LEARNED CIT(A) DID NOT CONDONE THE DELAY OF 139 DAYS BY SELF INTERPRETING THE PHYSICAL CONDITION OF A PATIENT SUFFERING FROM A PROLAPSED DISC, WHICH LEADS PERSONS EVEN COMMITTING SUICIDE BECAUSE OF SEVERE PAIN IN AN IMMOBILE POSITION. THE LEARNED CIT(A)HAS DISCUSSED A SERIOUS MEDICAL PROBLEM IN A VERY CASUAL MANNER SO AS TO HOLD THAT PIVD IS NOT A SERIOUS PHYSICAL AND MEDICAL CONDITION SO THAT APPEALS COULD HAVE BEEN FILED WITHIN THE SHORT PERIOD OF RELIEF. FURTHER HE SUBMITTED THAT ASSESSMENT ORDERS WERE RECEIVED BY THE ASSESSEE ON 7.1.2009 AND THE REQUI SITE APPEAL FEES WERE PAID ON 6.2.2009 WITHIN TIME . BUT BECAUSE OF PROLONGED ILLNESS AS STATED ABOVE, THE ASSESSEE COULD NOT PRE SENT APPEALS BEFORE THE LEARNED CIT(A) IN TIME. THEREFORE, CONSIDERING THE FACTS AND CIRCUMSTANCES AND PARTICULARLY CONSIDERING THE EXPLANATION OF THE ASSESSEE FOR BELATED FILING OF THE APPEALS BEFORE THE LEARNED CIT(A), THE DELAY MAY KINDLY BE CONDONED AN D THE LEARNED CIT(A) MAY BE DIRECTED TO ADMIT AND ADJUDICA TE THE APPEALS FILED BEFORE HIM ON MERITS. 4. THE LEARNED DR SUPPORTED THE ORDER OF THE LEARNED CIT(A). 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ON CAREF UL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE MATERIAL AVAILABLE ON RECORD, WE ARE INCLINED TO HOLD THAT THE LEARNED CIT(A) IS NOT JUSTIFIED IN DISMISSING THE APPEALS FILED BEFORE HIM BY NOT CONDONING THE DELAY IN FILING THOSE APPEALS. THE ASSESSE E HAS FILED CONDONATION PETITION STATING THEREIN THE REASON FOR SUCH DELAY THAT THE ASSESSEE WAS SUFFERING FROM PROLAPSED INTER VERTI DISC (PIVD), WHICH THE LEARNED CIT(A) VERY CASUALLY OPINED TO BE NOT A SUCH DISEASE IN ORDER TO INCAPACITATE SOMEBODY FR OM FILING THE APPEAL WITHOUT BRINGING ON RECORD ANY ITA NOS. 326,327,328329,330,331 , AND 332/CTK/2011 3 MEDICAL EXPERTS OPINION AS TO THE NATURE OF DISEASE. HONBLE SUPREME COURT IN THE CASE OF VEDABAI ALIAS VAIJAYANTABAIBABURAO PATIL VS. SHANTARAM BABURAO PATIL & ORS. 253 ITR 798 (SC) WITH REGARD TO MAT TERS RELATING TO EXERCISE OF DISCRETION UNDER LIMITATION ACT, THE COURTS SHOULD ADOPT PRAGMATIC APPROACH AND DISTINCTION HAS TO BE MADE BETWEEN A CASE WHERE THE DELAY IS INORDINATE AND A CASE WHERE THE DELAY IS OF A FEW DAYS AS IN THE FORMER CASE, THE CONS IDERATION OF PREJUDICE TO THE OTHER SIDE WILL BE A RELEVANT FACTOR SO THE CASE CALLS FOR A CAUTIOUS APPROACH BUT IN THE LATTER CASE NO SUCH CONSIDERATION MAY ARISE AND SUCH A CASE DESERVES A LIBERAL APPROACH. THE COURTS ARE REQUIRED TO EXERCISE THE DISCRET ION ON FACTS OF EACH CASE KEEPING IN MIND THAT IN CONSTRUING THE EXPRESSION SUFFICIENT CAUSE, THE PRINCIPLE OF ADVANCING OF SUBSTANTIAL JUSTICE IS OF PRIME IMPORTANCE. IT WILL BE RELEVANT TO REPRODUCE FOLLOWING OBSERVATIONS OF THEIR LORDSHIPS OF APEX COU RT FROM THE ABOVE DECISION : - IN EXERCISING DISCRETION UNDER SECTION 5 OF THE LIMITATION ACT THE COURTS SHOULD ADOPT A PRAGMATIC APPROACH. A DISTINCTION MUST BE MADE BETWEEN A CASE WHERE THE DELAY IS INORDINATE AND A CASE WHERE THE DELAY IS OF A FEW DAYS. WHEREAS IN THE FORMER CASE THE CONSIDERATION OF PREJUDICE TO THE OTHER SIDE WILL BE A RELEVANT FACTOR SO THE CASE CALLS FOR A MORE CAUTIOUS APPROACH BUT IN THE LATTER CASE. NO SUCH CONSIDERATION MAY ARISE AND SUCH A CASE DESERVES A LIBERAL APPROACH. NO HA RD AND FAST RULE CAN BE LAID DOWN IN THIS REGARD. THE COURT HAS TO EXERCISE THE DISCRETION ON THE FACTS OF EACH CASE KEEPING IN MIND THAT IN CONSTRUING THE EXPRESSION 'SUFFICIENT CAUSE', THE PRINCIPLE OF ADVANCING SUBSTANTIAL JUSTICE IS OF PRIME IMPORTANCE . IN OUR VIEW IN THIS CASE, THE APPROACH OF THE LEARNED CIVIL JUDGE IS WHOLLY ERRONEOUS AND HIS ORDER IS UNSUSTAINABLE. IT IS EVIDENT THAT THE DISCRETION UNDER SECTION 5 OF THE LIMITATION ACT IS EXERCISED BY THE CIVIL JUDGE IN CONTRAVENTION OF THE LAW LAID DOWN BY THIS COURT, THAT THE EXPRESSION 'SUFFICIENT CAUSE' SHOULD RECEIVE LIBERAL CONSTRUCTION, IN A CATENA OF DECISIONS (SEE STATE OF WEST BENGAL V. ADMINISTRATOR, HOWRAH MUNICIPALITY, AIR 1972 SC 749 ; [1972] 1 SCC 366 AND SMT. SANDHYA RANI SARKAR V. SM T. SUDHA RANI DEBI, AIR 1978 SC 537; [1978] 2 SCC 116). THE HIGH COURT IN EXERCISING ITS JURISDICTION UNDER SECTION 115 OF THE CIVIL PROCEDURE CODE, FAILED TO CORRECT THE JURISDICTIONS ERROR OF THE APPELLATE COURT. ITA NOS. 326,327,328329,330,331 , AND 332/CTK/2011 4 FURTHER IN THE PRESENT CASE ON HAND, AD MITTEDLY THE ASSESS EE HAS PAID THE APPEAL FEES ON 6.2.2009 WHICH I S WITHIN THE DUE DATE OF FILING. THIS CLEARLY SHOWS THE BONAFIDE OF THE ASSESSEE FOR FILING THE APPEALS. HAVING PAID THE APPEAL FEES IN TIME, NO ASSESSEE CAN GAIN ANYTHING BY FILING APPEAL B ELATEDLY DETRIMENTAL TO HIS OWN INTEREST. AS STATED EARLIER, FOR THE SICKNESS AS STATED IN THE PETITION FOR CONDONATION , THE APPEALS WERE FILED BELATEDLY , WHICH, IN OUR CONSIDERED VIEW, REQUIRES A LIBERAL APPROACH IN CONDONING SUCH DELAY IN A PRAGMATIC MAN NER. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THAT THE ASSESSEE HAS BEEN PREVENTED BY REASONABLE CAUSE, AS STATED ABOVE, FOR LATE FILING OF THE APPEAL S , WHICH DESERVES TO BE CONDONED. THE PROPOSITION OF LAW ON THIS POINT CAN ALSO BE DERIVED FROM THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. MST. KATIJI & ORS, 167 ITR 471 (SC) TO THE EFFECT THAT WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED. IN VIEW OF THE ABOVE, WE CONDONE THE DELAY BY SETTING ASIDE THE IMPUGNED CONSOLIDATED ORDER DT.16.3.2011 PASSED BY THE LEARNED CIT(A) AND RESTORE THE APPEALS TO HIS FILE FOR ADJUDICATION THEREOF ON ME RITS. 4. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. PRONOUNCED IN OPEN COURT ON DT. 30 TH JUNE, 2011 S D/ - S D/ - (K.S.S.PRASAD RAO) JUDICIAL MEMBER (K.K.GUPTA) ACCOUNTANT MEMBER DATE: 30 TH JUNE, 2011 H.K .PADHEE, SENIOR PRIVATE SECRETARY. ITA NOS. 326,327,328329,330,331 , AND 332/CTK/2011 5 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT: HAREKRUSHNA PANIGARHI , PLOT NO.258/2020/2508,SAILESHWAR VIHAR,BHUIBANESWAR. 2. THE RESPONDENT: ASST.COMMISSIONER OF INCOME - TAX, CIRCLEL 2(2), BHUBANE SWAR 3. THE CIT, 4. THE CIT(A), 5. THE DR, CUTTACK 6. GUARD FILE (IN DUPLICATE) TRUE COPY, BY ORDER, SENIOR PRIVATE SECRETARY.