K. RAHEJA HOMES P.LTD, MUMBAI V. ASST CIT CEN CIR 23, MUMBAI

ITA 3781/MUM/2013

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9420 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 19-02-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 13-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASGHAR ZAIN

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A MUMBAI . . , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER ITA NO.3781/MUM/2013 (A.Y.2010-11) K. RAHEJA HOMES PVT. LTD. CONSTRUCTION HOUSE B, 2 ND FLOOR 623, LINKING ROAD, KHAR (W) MUMBAI-400 052. GIR NO./PAN : AAACK 6579 K (APPELLANT ) VS. THE A CIT CENTRAL CIRCLE - 2 3 , AAYAKAR BHAVAN MUMBAI-400 020. (RESPONDENT) APPELLANT BY : SHRI SANJAY SAWANT RESPONDENT BY : SHRI ASGHAR ZAIN DATE OF HEARING : 19 /02/2015 DATE OF PRONOUNCEMENT : 25 /02/2015 ORDER PER CHANDRA POOJARI, A.M: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A) DATED 18/03/2013 FOR THE ASSESSMENT YEAR 2010-11. THE GR IEVANCE OF THE ASSESSEE IS WITH REGARD TO DISMISSAL OF THE APPEAL WITHOUT CONDONING THE DELAY OF 118 DAYS IN FILING THE APPEAL. 2. THE ASSESSEE FILED APPEAL BELATEDLY BEFORE CIT(A ). THE APPEAL WAS REQUIRED TO BE FILED ON OR BEFORE 9/10/2012. HOWEVER, IT WAS FI LED ON 4/2/2013. THUS, THERE WAS A DELAY OF 118 DAYS IN FILING THE APPEAL BEFORE CIT(A ). THE ASSESSEE FILED PETITION EXPLAINING THE REASON OF DELAY BEFORE CIT(A) STATIN G THAT THE ASSESSEES CONSULTANT ONE MR. S.D. PURANDARE WHO FIRST DRAFTED THE APPEAL WAS SUFFERING FROM HIGH BLOOD PRESSURE AND DIABETES. LATER, HE WENT FOR MEDICAL TREATMENT AND GOT ADMITTED TO SURANA HOSPITAL 2 ITA NO. 3781/ MUM/13 & RESEARCH CENTRE AT MALAD. HE WAS ADVISED TO GO FO R BYPASS SURGERY AND ACCORDINGLY HE HAS UNDERGONE BYPASS SURGERY AND AS PROOF OF THI S ASSESSEE ENCLOSED MEDICAL CERTIFICATE BEFORE CIT(A) AND EXPLAINED THE REASON FOR DELAY. HOWEVER, CIT(A) OBSERVED THAT AS PER ASSESSMENT ORDER THE CASE WAS NOT REPRE SENTED BEFORE AO BY MR. S.D. PURANDARE AND ON OTHER HAND, THE ASSESSEE WAS REPRE SENTED BEFORE AO BY SHRI SANJAY SAWANT, ADOCATE. EVEN OTHERWISE APPEAL FILED BEFORE CIT(A) WAS ALSO NOT PREPARED BY MR. S.D. PURANDARE. FURTHER CIT(A) OBSERVED THAT CE RTIFICATE ISSUED BY SURANA HOSPITAL & RESEARCH CENTRE STATED THAT MR. S.D. PURANDARE WA S ADVISED COMPLETE REST FOR THREE WEEKS FROM 22/8/2012. THE CERTIFICATE DATED 20/11/2 012 ISSUED BY SURANA HOSPITAL & RESEARCH CENTRE STATED THAT HE WAS ADVISED ANGIOGRA M AND HE NEED TO STAY IN HOSPITAL FOR FURTHER TREATMENT. ACCORDING TO LD. CIT(A) THE ASSESSEE HAS NOT EXPLAINED THE DELAY SATISFACTORILY. HE REFUSED TO ADMIT THE APPEAL OF T HE ASSESSEE STATING THAT THERE IS NO SUFFICIENT CAUSE FOR FILING THE APPEAL BEFORE HIM B ELATEDLY. AGAINST THIS, THE ASSESSEE IS IN APPEAL BEFORE US. 3. WE HAVE HEARD BOTH PARTIES AND CONSIDERED THE MA TERIAL AVAILABLE ON RECORD. IN THIS CASE ADMITTEDLY THERE IS A DELAY OF 118 DAYS I N FILING THE APPEAL BEFORE CIT(A). THE ASSESSEE FILED PETITION EXPLAINING REASONS FOR DELA Y AND PRAYED FOR CONDONATION OF DELAY. THE REASON STATED BY THE ASSESSEE IS ILL-HEALTH OF ASSESSEES COUNSEL ONE MR. S.D. PURANDARE. IN SUPPORT OF THIS CLAIM ASSESSEE ALSO E NCLOSED MEDICAL CERTIFICATE RECEIVED FROM MR. PURANDARES HOSPITAL. LD. CIT(A) DID NOT AGREE WITH THE EXPLANATION OFFERED BY THE ASSESSEE. ACCORDING TO CIT(A), THE APPEAL WAS F ILED NOT BY MR. S.D. PURANDARE BUT BY SOME OTHER COUNSEL AND THE SAME COULD HAVE BEEN FILED WITHIN PRESCRIBED TIME. IN OUR OPINION CIT(A) COULD NOT DIRECT THE ASSESSEE TO WHOM HE HAS TO APPROACH TO FILE THE APPEAL. THERE IS NO MATERIAL BEFORE CIT(A) THAT THE ASSESSEE HAS NOT APPROACHED MR. S.D. PURANDARE FOR FILING HIS APPEAL WHEN THE ASSES SEE FILED THE EXPLANATION EXPLAINING THE REASONS FOR DELAY AND IT IS FOUND BONAFIDE IT I S TO BE ACCEPTED SINCE OTHERWISE REFUSING TO CONDONE THE DELAY CAN RESULT IN MERITOR IOUS MATTER BEING THROWN AT THE VERY THRESHOLD AND CAUSE OF JUSTICE BEING DEFEATED. ORDI NARILY LITIGANT DOES NOT STAND TO BENEFIT BY LODGING AN APPEAL BELATEDLY. WHEN THE DE LAY IS CONDONED, THE HIGHEST THAT 3 ITA NO. 3781/ MUM/13 CAN HAPPEN IS THAT A CASE WOULD BE DECIDED ON MERIT S AFTER HEARING THE PARTIES. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATION ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED, FO R THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A N ON-DELIBERATE DELAY. THERE IS NO PRESUMPTION THAT DELAY IS CAUSED/OCCASIONED DELIBER ATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE OF THE ASSESSEE. IT MUST BE NOTED THAT J UDICIARY IS RESPECTED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GRO UNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. 3.1 IN THE PRESENT CASE, WE FIND THAT THE EXPLANATI ON GIVEN BY THE ASSESSEE IS BONAFIDE AS THERE IS NO COUNTER AFFIDAVIT FILED BY THE REVENUE STATING THAT THE EXPLANATION OFFERED BY THE ASSESSEE IS FALSE. IN TH E CIRCUMSTANCES, WE HAVE TO PREFER SUBSTANTIAL JUSTICE RATHER THAN TECHNICALITY IN DEC IDING THIS ISSUE. THEREFORE, THIS TRIBUNAL IS BOUND TO REMOVE THE INJUSTICE BY CONDONING THE D ELAY OF 118 DAYS OTHERWISE IT AMOUNTS TO LEGALIZING AN ILLEGAL ORDER WHICH WOULD RESULT IN CAUSING INJUSTICE TO THE ASSESSEE. ACCORDINGLY, WE ARE INCLINED TO CONDONE T HE DELAY OF 118 DAYS IN FILING THE APPEAL BEFORE CIT(A). THE DELAY IS CONDONED AND THE ISSUE ON MERIT IS TO BE DECIDED BY CIT(A). 4. THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 25/02/2015 !' # $%& 25/02/2015 ! ' SD/- SD/- ( . . / I.P. BANSAL) ( / CHANDRA POOJARI ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; $% DATED 25/02/2015 . % . ./JV, SR. PS 4 ITA NO. 3781/ MUM/13 )*+ )*+ )*+ )*+ ,+'* ,+'* ,+'* ,+'* / COPY OF THE ORDER FORWARDED TO : 1. -. / THE APPELLANT 2. )/-. / THE RESPONDENT. 3. 0 ( ) / THE CIT(A)- 4. 0 / CIT 5. +1' )*% , , / DR, ITAT, MUMBAI 6. '2 3 / GUARD FILE. % % % % / BY ORDER, /+* )* //TRUE COPY// 4 44 4 / 5 5 5 5 6 6 6 6 (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI