Smt. Mona Arvindbhai Patel, Ahmedabad V. The Asstt. Commissioner of Income Tax, Circel-5(2), Ahmedabad

ITA 400/AHD/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 4113 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 16-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MONA ARVINDBHAI PATEL
• Section: 143(3)

Judgement Text

, SMC IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SMT. MADHUMITA ROY, JUDICIAL MEMBER ./ I.T.A. NO. 400/AHD/2017 ( ASSESSMENT YEAR : 2012-13) MONA ARVINDBHAI PATEL SIDDHARTH BUNGALOW, OPP. K.P. BHAVAN, PANCHVATI, GULBAI TEKRA, ELLISBRIDGE, AHMEDABAD - 380006 / VS. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-5(2), AHMEDABAD - 380009 ./ ./ PAN/GIR NO. : ASMPP9104A ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : MONA ARVINDBHAI PATEL (ASSESSEE) / RESPONDENT BY : SHRI ALOK KUMAR, SR. D.R. DATE OF HEARING 02/07/2018 !'# / DATE OF PRONOUNCEMENT 09/08/2018 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE CIT(A)-5, AHMEDAB AD (CIT(A) IN SHORT), DATED 14.12.2016 ARISING IN THE ASSESSMENT ORDER DATED 05.03.2015 PASSED BY THE ASSESSING OFFICER (AO) U/S . 143(3) OF THE INCOME TAX ACT, 1961 (THE ACT) CONCERNING ASSESSMEN T YEAR 2012-13. ITA NO. 400/AHD/17 [MONA A. PATEL VS. ACIT] A.Y. 2012-13 - 2 - 2. A PERUSAL OF THE ORDER OF THE CIT(A) SHOWS THAT THE CIT(A) HAS DECLINED TO ENTERTAIN THE APPEAL OF THE ASSESSEE FO R ADJUDICATION ON MERITS OWING TO DELAY IN FILING APPEAL BY 19 DAYS. THE CIT(A) REFUSED TO CONDONE THE DELAY AND THUS DECLINED TO PROCEED I N THE MATTER. IN THIS CONTEXT, IT IS SEEN THAT THE ASSESSEE HERSELF HAS APPEARED IN PERSON IN THE MATTER AND WAS NOT APPARENTLY HAVING ADEQUAT E ASSISTANCE OF A PROFESSIONAL HAND IN THIS REGARD. A SMALL DELAY IN FILING APPEAL HAS NOT CAUSED ANY PREJUDICE TO THE INTEREST OF THE REV ENUE PER SE AND THUS A MERE TECHNICAL BREACH. NO DOUBT, A LITIGANT IS E XPECTED TO PERFORM HIS DUTY DILIGENTLY AND WITH COMMITMENT. HOWEVER, AT THE SAME TIME AN ADJUDICATING AUTHORITY HAS TO KEEP IN MIND THAT DENIAL OF ADJUDICATION ON MERITS AT THRESHOLD MAY CAUSE IRREP ARABLE LOSS TO THE LITIGANT. THEREFORE, IN APPROPRIATE CASES, THE CIR CUMSTANCES FOR DELAY NEEDS TO BE VIEWED LIBERALLY. WHILE CONSIDERING TH E BONAFIDES OF THE DELAY AN ADJUDICATION AUTHORITY IS EXPECTED TO BEAR IN MIND THE PRINCIPLES LAID DOWN BY HONBLE SUPREME COURT IN TH E LOCUS CLASSICUS CASE OF COLLECTOR OF LAND ACQUISITION VS. MST. KATI JI & ORS. 167 ITR 471 (SC). THE HONBLE SUPREME COURT LAID DOWN THE GUIDING PRINCIPLES FOR ADOPTING A LIBERAL APPROACH IN THE M ATTER OF CONDONATION OF DELAY. THE PRINCIPLES LAID DOWN BY THE HONBLE COURT IS REPRODUCED HEREUNDER: 1. ORDINARILY, A LITIGANT DOES NOT STAND TO BENEFI T BY LODGING AN APPEAL LATE. 2. REFUSING TO CONDONE DELAY CAN RESULT IN A MERITO RIOUS 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. 1. ' ANY APPEAL OR ANY APPLICATION, OTHER THAN AN A PPLICATION UNDER ANY OF THE PROVISIONS OF ORDER XXI OF THE COD E OF CIVIL PROCEDURE, 1908, MAY BE ADMITTED AFTER THE PRESCRIB ED PERIOD IF THE APPELLANT OR THE APPLICANT SATISFIES THE COURT THAT HE HAD SUFFICIENT CAUSE FOR NOT PREFERRING THE APPEAL OR M AKING THE APPLICATION WITHIN SUCH PERIOD.' ITA NO. 400/AHD/17 [MONA A. PATEL VS. ACIT] A.Y. 2012-13 - 3 - 3. ' EVERY DAY'S DELAY MUST BE EXPLAINED ' DOES NOT MEAN THAT PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOU R'S DELAY, EVERY SECOND'S DELAY? THE DOCTRINE MUST BE APPLIED IN A RATIONAL, COMMON SENSE AND PRAGMATIC MANNER. 4. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERA TIONS 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 N ON-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 RESO RTING TO DELAY. IN FACT, HE RUNS SERIOUS RISK. 6. IT MUST BE GRASPED THAT THE JUDICIARY IS RESPECT ED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHN ICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. 3. THE PRINCIPLES ENUNCIATED BY HONBLE SUPREME COU RT SAY IT ALL. 4. IN THE LIGHT OF THE AFORESAID DISCUSSION, WE DIR ECT THE CIT(A) TO CONDONE THE SMALL DELAY OF MERE 19 DAYS AND ADMIT T HE APPEAL FOR ADJUDICATION ON MERITS IN ACCORDANCE WITH LAW. ACC ORDINGLY, THE APPEAL BEFORE THE CIT(A) IS RESTORED FOR DE NOVO ADJUDICATION ON MERITS IN ACCORDANCE WITH LAW AFTER GIVING FAIR OPP ORTUNITY TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. SD/- SD/- (MADHUMITA ROY) (PRADIP K UMAR KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 09/08/2018 TRUE COPY S. K. SINHA !'#' / COPY OF ORDER FORWARDED TO:- &. / REVENUE THIS ORDER PRONOUNCED IN OPEN COURT ON 09/08/201 8