PORECHA GOLBAL SECURITIES P. LTD, MUMBAI V. ASST CIT 4(3), MUMBAI

ITA 479/MUM/2013

• Counselvise Citation: 47919914 RSA 2013
• Duration Of Justice: 1 year(s) 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-04-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 16-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M L PERUMAL
• Assessee Lawyers: SANJIV G BRAHME
• Section: 143(3); 148

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C , BENCH MUMBAI , BEFORE SHRI R.C.SHARMA , A M & DR.STM PAV A LAN , J M ITA NO. 479 / MUM/20 1 3 ( ASSESSMENT YEAR : 200 7 - 0 8 ) M/S PORECHA GLOBAL SECURITIES PVT. LTD., PG - 14, ROTUNDA BUILDING, STOCK EXCHANGE, BOMBAY SAMACHAR MARG, MUMBAI - 23 VS. A CIT , 4 ( 3 ), MUMBAI PAN/GIR NO. : A A A C P 6228 N ( APPELLANT ) .. ( RESPONDENT ) /ASSESSEE BY : MR. JAYANT BHATT & MR. SANJIV G. BRAHME /REVENUE BY : MR. M.L.PERUMAL DATE OF HEARING : 3 RD APRIL , 201 4 DA TE OF PRONOUNCEMENT : 16 TH APRIL , 201 4 O R D E R PER R.C.SHARMA ( A .M.) : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) , DATED 6 - 11 - 2012 FOR THE ASSESSMENT YEAR 200 7 - 0 8 , IN THE MATTER OF ORDER PASSED UNDER SECTION 143(3) OF THE I.T. ACT. 2 . IT WAS ARGUED BY LEARNED AR THAT THERE WAS SOME DELAY IN FILING THE APPEAL, DESPITE CLEAR CUT DIRECTION OF THE HONBLE SUPREME COURT IN THIS REGARD AND DISREGARDING THE AFFIDAVIT FILED ALONG WITH THE APPEAL MEMO ITSELF FOR CONDO NATION OF DELAY, LEARNED CIT(A) HAS NOT CONSIDERED AND CONDONED THE DELAY. THE PRECISE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER : - A) GROUNDS OF APPEAL: ITA NO. 479 / 1 3 2 1) THE LD. COMMISSIONER OF APPEALS - 8, MUMBAI, HAS ERRED IN NOT CONDONING THE DELAY IN FILING APP EAL, DESPITE CLEAR - CUT DIRECTIONS OF THE SUPREME COURT IN THIS REGARD AND DISREGARDING THE AFFIDAVIT FILED ALONG WITH APPEAL MEMORANDUM ITSELF FOR CONDONATION OF DELAY. 2) THE LD. COMMISSIONER OF APPEALS - 8, MU M BAI, HAS ERRED IN NOT GIVING THE OPPORTUNI TY OF HEARING DESPITE THE FACT THAT HIS PREDECESSOR HAD ALREADY HEARD THE MATTER ON 31ST AUGUST, 2012. 3) THE LD. COMMISSIONER OF APPEALS - 8, MUMBAI, HAS ERRED IN NOT GOING THROUGH LEGALITY AND MERITS OF THE CASE WITH RESPECT TO THE RE - OPE NING UNDER SEC TION 148 AND ALS O DISALLOWANCE UNDER SECTION 14 A AND DISALLOWANCE OF TRANSACTION CHARGES. 4) THE APPELLANT CRAVES LEAV E TO ADD, ALTER, AMEND, AND MODIFY THE AFORESAID GROUNDS OF APPEAL AS THEY MAY BE A DVISED FROM TIME TO TIME AT OR ANY TIME BEFORE THE HEA RING . 3. WE HAVE HEARD RIVAL CONTENTIONS AND FOUND FROM THE RECORD THAT THERE WAS DELAY IN FILING THE APPEAL. BY FURNISHING THE AFFIDAVIT THE ASSESSEE HAS EXPLAIN ED THE DELAY OF 67 DAYS, HOWEVER, THE CIT(A) DID NOT CONDONE THE DELAY AND DISMISS ED THE AP PEAL WITHOUT GIVING ANY VERDICT IN REGARD TO MERITS OF THE ADDITION . THE ISSUE IS WHETHER THE DELAY IN FILING OF APPEAL BY THE ASSESSEE WAS ON ACCOUNT OF SUFFICIENT REASONS OR NOT. IF THE REASONS ARE FOUND TO BE SUFFICIENT AND BONA FIDE THE DELAY DESERVES TO BE CONDONED. BEFORE WE EVALUATE THE SUFFICIENCY OF THE REASONS, IT WOULD BE OF RELEVANCE TO KEEP IN MIND THE BROAD JUDICIAL THOUGHTS ON THE ISSUE . NO DOUBT FILING OF APPEAL IS A RIGHT GRANTED UNDER THE STATUTE TO THE ASSESSEE AND IS NOT AN AUTOMATIC PRI VILEGE, THEREFORE, THE ASSESSEE IS EXPECTED TO BE VIGILANT IN ADHERING TO THE MANNER AND MODE IN WHICH THE APPEALS ARE TO BE FILED IN TERMS OF THE RELEVANT PROVISIONS OF THE ACT. NEVERTHELESS, LIBERAL APPROACH HAS TO BE ADOPTED BY THE ITA NO. 479 / 1 3 3 APPELLATE AUTHORITIES WHERE DELAYS HAVE OCCURRED FOR BONA FIDE REASONS ON THE PART OF THE ASSESSEE OR REVENUE IN FILING APPEALS. IN MATTERS CONCERNING THE FILING OF APPEALS, IN EXERCISE OF THE STATUTORY RIGHT, A REFUSAL TO CONDONE DELAY CAN RESULT IN A MERITORIOUS MATTER BEING THROWN OUT AT THE VERY THRESHOLD WHICH WOULD LEAD TO MISCARRIAGE OF JUSTICE. 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. 4 . T HE HON'BLE APEX COURT IN THE CELEBRATED DECISION IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. MST . KATIJI & ORS. 167 ITR 471 OPINED THAT WHEN TECHNICAL CONSIDERATION AND SUBSTANTIAL JUSTICE ARE PITTED AGAINST EACH OTHER, THE COURTS ARE EXPECTED TO FURTHE R THE CAUSE OF SUBSTANTIAL JUSTICE. THIS IS FOR THE REASON THAT AN OPPOSING PARTY IN A DISPUTE CANNOT HAVE A VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON - DELIBERATE DELAY . THEREFORE, IT FOLLOWS THAT WHILE CONSIDERING MATTERS RELATING TO THE CONDON ATION OF DELAYS A JUDICIOUS AND LIBERAL APPROACH IS TO BE ADOPTED. IF SUFFICIENT CAUSE IS FOUND TO EXIST WHICH IS BONA FIDE AND NOT DUE TO NEGLIGENCE OF THE APPLICANT, THE DELAY NEEDS TO BE CONDONED IN SUCH CASES. THE EXPRESSION 'SUFFICIENT CAUSE' IS ADEQU ATELY ELASTIC TO ENABLE THE COURTS TO APPLY THE LAW IN MEANINGFUL MANNER WHICH SUBSERVES THE END OF JUSTICE - THAT ITA NO. 479 / 1 3 4 BEING THE LIFE PURPOSE OF THE EXISTENCE OF THE INSTITUTION OF COURTS. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATION ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED . HON'BLE SUPREME COURT IN CASE OF VEDABHAI VIS SANTARAM, 253 ITR 798 HAD OBSERVED THAT INORDINATE DELAY CALLS FOR CAUTIONS APPROACH. THIS MEANS THERE SHOULD BE NO MALAFIDE OR DILATORY T ACTICS. 'SUFFICIENT CAUSE' SHOULD RECEIVE LIBERAL CONSTRUCTION TO ADVANCE SUBSTANTIAL JUSTICE. 5 . THE HON'BLE SUPREME COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. MST. KATIJI: 167 ITR 471 OBSERVED AS UNDER: '3. THE LEGISLATURE HAS CONFERRED THE POWER TO CONDONE DELAY BY ENACTING SECTION 51 OF THE LIMITATION ACT OF 1963 IN ORDER TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO PARTIES BY DISPOSING OF MATTERS ON DE MERITS. THE EXPRESSION 'SUFFICIENT CAUSE' EMPLOYED BY THE LEGISLATURE IS ADEQUATE LY 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 LIBE RAL APPROACH IN MATTERS INSTITUTED IN THIS COURT. BUT THE MESSAGE DOES NOT APPEAR TO HAVE PERCOLATED DOWN TO ALL THE OTHERS COURTS IN THE HIERARCHY. 6 . FURTHERMORE, THE HON'BLE SUPREME COURT IN THE CASE OF VEDABAI ALIA VAIJAYANATABAI BABURAO PATIL VS . SHA NTARAM BABURAO PATIL 253 ITR 798 HELD THAT THE COURT HAS TO EXERCISE THE DISCRETION ON THE FACTS OF EACH CASE KEEPING IN MIND THAT IN CONSTRUING THE EXPRESSION ITA NO. 479 / 1 3 5 ' SUFFICIENT CAUSE', THE PRINCIPLE OF ADVANCING SUBSTANTIAL JUSTICE IS OF PRIME IMPORTANCE. TH E COURT HELD THAT THE EXPRESSION 'SUFFICIENT CAUSE' SHOULD RECEIVE LIBERAL CONSTRUCTION. 7 . WITHOUT GOING INTO MERITS OF ADDITION AND K EEPING IN VIEW THE INTEREST OF SUBSTANTIAL JUSTICE, WE CONDONE THE DELAY AND RESTORE THE APPEAL TO THE CIT(A) FOR DEC IDING ON MERIT S . 8 . IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 16 TH APRIL . 201 4 . 16 TH APRIL ,2014 SD/ - SD/ - ( ) ( DR. S.T.M.PAV A LAN ) ( ) ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMB AI ; DATED 16 /04 /2014 /PKM , PS COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( ASSTT. REGISTRAR) / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A), MUMBAI. 4. / CIT 5 . / DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//