Mr. Joseph R Fernandes, Salcete V. ACIT, Circle - 1, Margao

ITA 54/PAN/2020

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 0391 (ITAT-PANAJI)
• Duration Of Justice: 2 year(s) 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: WT(D)
• Assessment Year: 2007-2008
• Appeal Filed On: 07-05-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RANJAN KUMAR
• Keywords: Opportunity of being heard; Condonation of delay
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI C.M. GARG, JUDICIAL MEMBER AND SHRI GIRISH AGRAWAL, ACCOUNTANT MEMBER I.T.A. Nos.54 & 55/PAN/2020 Assessment Years: 2007-08 2008-09 Mr. Joseph R. Fernandes, H. No.797/6, Mandopa, Navelim, Salcete. PAN: AAHPF1154B Vs. ACIT, Circle-1, Margao. Appellant Respondent Date of Hearing 16.06.2022 Date of Pronouncement 16.06.2022 Assessee by None Department by Shri Ranjan Kumar, CIT, DR & Shri Mayur Kamble, Sr. DR ORDER PER C.M. GARG, JM: These appeal has been filed by the assessee against the separate orders of the CIT(A), Panaji-1, dated 24.02.2020 for assessment years 2007-08 & 2008-09. 2. On perusal of both the appeal records, we find that the appeal can be disposed of after hearing the arguments of learned DR. Therefore, we proceed to decide the appeal in absence of appellant assessee. 2 ITA Nos.54 & 55/PAN/2020 Mr. Joseph R. Fernandes vs. ACIT ISSUE OF DENIAL OF CONDONATION OF DELAY IN FILING OF APPEAL BEFORE THE CIT(A) 3. From the relevant part of first appellate order para 6 to 6.3, it is clearly discernible that the assessee filed appeal before the learned CIT(A) by the delay of 510 days. An application seeking condonation of delay was filed before the learned first appellate authority along with medical certificate dated 20.06.2011. The learned.CIT(A) dismissed/rejected the prayer of the assessee for condonation of delay by observing that the medical reports and doctor’s certificate does not point out any live threatening issues or other conditions that could have delayed the filing of the appeal. After referring to some judgments, the learned CIT(A) noted that the Assessing Officer has passed order u/s 143(3) r.w.s 144 of the Act and the appellant has also filed belated appeals before him. In the last operative para, the learned CIT(A) noted that the appellant was unable to establish the reasons of delay between the period December, 2009 to June, 2011 with substantive or cogent material on record and sufficiency of reasons for delay are not established. Therefore, he denied to condone the delay and dismissed the appeal in limine. First of all, we take up appeal of A.Y. 2007-08 for adjudication. 4. On a careful consideration of the above findings of learned CIT(A), the prayer and explanation of the assessee explaining the delay, we are of the considered view that the assessee has filed medical certificate issued by Dr. V. Ariyanayagam, SRM Medical College Hospital and Research Centre dated 20.06.2011 which has been 3 ITA Nos.54 & 55/PAN/2020 Mr. Joseph R. Fernandes vs. ACIT reproduced by the learned CIT(A) in para 6 of the order. The Hon'ble Supreme Court in the case of Collector Land Acquisition, Anantnag & Anr. vs Mst. Katiji & Ors reported in 1987 AIR 1353, 1987 SCR (2) 387 has held thus:- "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 con- doned 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. 5. In view of the above judgement of the Hon'ble Apex Court, we are of the considered view that the assessee filed medical certificate before the learned.CIT(A) 4 ITA Nos.54 & 55/PAN/2020 Mr. Joseph R. Fernandes vs. ACIT in support of his prayer to condone the delay in filing the appeal before him. However, the learned CIT(A) straightaway disbelieved the medical certificate without further show causing the assessee or asking the assessee to submit any other supporting documentary evidence in support of his claim of severe illness during December, 2009 to June, 2011. Obviously, the learned CIT(A) is empowered to take a decision on the material placed before him by the assessee seeking condonation of delay, but, in a case where the learned CIT(A) is of the opinion that the medical certificate submitted by the assessee is not believable or some more evidence in support of long illness is required, then, it is the duty of the learned CIT(A) to show cause the assessee in this regard by way of show cause notice, note sheet entry or any other way enabling the assessee to substantiate his claim and explanation regarding the condonation of delay. However, without any further notice or show cause to the assessee, the CIT(A) dismissed the application seeking condonation of delay only on the ground of disbelieving the medical certificates submitted by the assessee. This is not a justifiable and reasonable approach of the first appellate authority. Therefore, respectfully following the judgement of the Hon'ble Supreme Court in the case of Collector Land Acquisition, Anantnag & Anr. vs Mst. Katiji & Ors (supra), we are compelled to hold that the delay in filing the appeal before the learned CIT(A) deserves to be condoned and we condone the delay in filing the appeal before the learned CIT(A) and direct the learned first appellate authority to admit the appeal for adjudication. 5 ITA Nos.54 & 55/PAN/2020 Mr. Joseph R. Fernandes vs. ACIT 6. Since there is no findings by the learned CIT(A) on merits, therefore, the matter is remanded to the file of the learned CIT(A) for a fresh adjudication after allowing due opportunity of being heard to the assessee. Since the facts and circumstances of both the appeals for assessment year 2007-08 and 2008-09 are similar and identical, therefore, our conclusion for assessment year 2007-08 would apply mutatis mutandis to assessment year 2008-09 and, thus, both the appeals are restored to the file of the CIT(A) for a fresh adjudication. 7. In the result, both the appeals filed by the assessee are allowed for statistical purposes. Order pronounced in the open court on 16 th June, 2022. (Girish Agrawal) (C.M. Garg) Accountant Member Judicial Member Dated: 16.06.2022 dk Copy of the order forwarded to: 1. Appellant 2. Respondent 3. CIT(A) 4. Pr. CIT 5. DR, ITAT, Panaji, Goa. 6. Guard File True Copy By Order Sr. Private Secretary, ITAT Panaji Bench, Panaji (On Tour)