MESERS KASHMIR ROAD LINES, JAMMU V. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, JAMMU

ITA 547/ASR/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 5079 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 10 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 12-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PADAM BAHL LD
• Keywords: Opportunity of being heard; Principle of natural justice; Condonation of delay; Set aside
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, AMRITSAR (VIRTUAL COURT) BEFORE: SHRI. N.K. SAINI, VICE PRESIDENT AND SHRI N.K. CHOUDHRY, JUDICIAL MEMBER ITA NO. 547/ASR/2018 ASSESSMENT YEAR: 2013-14 M/S KASHMIR ROAD LINES, PLOT NO. 46 TRANSPORT NAGAR, JAMMU [PAN NO: AAGFK 4609M] VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE JAMMU (APPELLANT) (RESPONDENT) APPELLANT BY : SH. PADAM BAHL (LD. C.A.) RESPONDENT BY: SH. CHARAN DASS (LD. D.R.) DATE OF HEARING: 22.09.2020 DATE OF PRONOUNCEMENT: 22.09.2020 ORDER PER N.K. CHOUDHRY, JM: THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER DATED 12-04-2018 IMPUGNED HEREIN PASSED BY THE LD. CIT(A)-5, LUDHIANA U/S. 250(6) OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS THE ACT) WHEREBY THE LD. CIT (A) DISMISSED THE APPEAL OF THE ASSESSEE, ON NON-PROSECUTION. 2. AT THE OUTSET, DURING THE COURSE OF HEARING OF THIS AP PEAL, IT WAS OBSERVED BY THE BENCH THAT THERE IS DELAY OF 124 DAYS IN FILLING OF THE INSTANT APPEAL, WHICH WAS EXPLAINED BY THE ASSESSEE BY SUBMITTING THAT MR KARANBIR SINGH SETHI (LD. CHAR TERED ITA NO. 547/ASR/2018 KASHMIR ROAD LINES V. DY. CIT 2 ACCOUNTANT) THOUGH PREPARED THE APPEAL TO BE FILED BE FORE ITAT, AMRITSAR AND HANDED OVER THE APPEAL PAPERS TO HIS ASSIST ANT FOR DEPOSIT OF APPEAL FEE AND SENDING THE SAME TO AMRITSAR AFTER GETTING SIGNED FROM THE ASSESSEE, HOWEVER IT WAS LATER FO UND THAT THE ASSISTANT OF HIM FAILED TO DEPOSIT THE APPEAL FEE AND ALSO FAILED TO FILE THE APPEAL IN THE REGISTRY OF THE ITAT, AMRITSAR AND THEREFORE DUE TO SUCH CIRCUMSTANCES, THE APPEAL GOT D ELAYED IN FILLING BEFORE THE ITAT, AMRITSAR, HOWEVER THE SAM E WAS FILED BELATEDLY THROUGH THE LOCAL SENIOR COUNSEL SH. PADAM BEHAL (LD. CHARTERED ACCOUNTANT) ON DATED 12/07/2018 AND CONSEQUEN TLY RESULTED INTO DELAY OF 124 DAYS IN FILLING OF THE APP EAL. THE ASSESSEE ALSO FELT REGRET AND SUBMITTED THAT THERE WAS BON AFIDE REASON FOR THE DELAY AND THE SAME WAS UNINTENTIONAL. 2.1 LD. D R REFUTED THE CLAIM OF THE ASSESSEE AND SUBMITTED THAT DELAY IS LONG IN PERIOD AND HENCE NOT CONDONABLE. 2.2 HAVING HEARD THE PARTIES ON THE ISSUE OF DELAY IN FILL ING OF THE APPEAL. THE LAW IS WELL SETTLED BY THE HIGHER COUR TS THAT WHILE DEALING WITH THE APPLICATION FOR CONDONATION OF DELAY, THE COURT HAS TO SEE THE CONDUCT OF THE PARTY AND PLAUSIBL E AND SUFFICIENT CAUSE FOR NON-FILING OF THE STATUTORY APPEAL WITHIN TIME. 2.3 THE APEX COURT IN COLLECTOR, LAND ACQUISITION, ANANTN AG V. MST. KATIJI (1987) I LLJ 500 SC, ANALYZED THE PROVISI ONS OF LAW QUA LIMITATION ACT AND HELD THAT THE EXPRESSION 'SUFFICIENT CAUSE' EMPLOYED BY THE LEGISLATURE IN THE LIMITATION ACT IS ADEQUATELY ELASTIC TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SUB-SERVES THE END S OF JUSTICE-THAT BEING THE LIFE PURPOSE FOR THE EXISTENCE OF THE INSTITUTION OF COU RTS . IT WAS FURTHER OBSERVED THAT A LIBERAL APPROACH IS REQUIRES TO BE ADOPTED ON PRINCIPLE AS ORDINARILY A LITIGANT DOES NOT STAND TO BENEFIT BY LODGING AN APPEAL LATE. FURTHER REFUSING TO CONDONE DELAY CAN RESULT IN A MERITORIOUS MATTER BEING THROWN OUT AT THE VERY THR ESHOLD AND CAUSE OF JUSTICE BEING DEFEATED. AS AGAINST THIS WHEN DELAY IS CONDONED TH E HIGHEST THAT CAN HAPPEN IS THAT A ITA NO. 547/ASR/2018 KASHMIR ROAD LINES V. DY. CIT 3 CAUSE WOULD BE DECIDED ON MERITS AFTER HEARING THE PARTIES. T HE APEX COURT FURTHER HELD THAT WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDE RATIONS ARE PITTED AGAINST EACH OTHER, CAUSE OF SUBSTANTIAL JUSTICE DE SERVES TO BE PREFERRED FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON-DELIBERATE DELAY. IT MUST BE GRASPED THAT JUDICIARY IS RESPECT ED 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. 2.4 THE APEX COURT IN N. BALAKRISHNAN VS. M. KRISHNAMURTH Y 2008(228) ELT 162(SC), THE APEX COURT, WHILE CONDONI NG THE DELAY OF 883 DAYS IN FILING AN APPLICATION FOR SETTING ASIDE THE EX PARTE DECREE HELD 'THAT THE PURPOSE OF LIMITATION ACT WAS NOT TO DEST ROY THE RIGHTS. IT IS FOUNDED ON PUBLIC POLICY FIXING A LIFE SPAN F OR THE LEGAL REMEDY FOR THE GENERAL WELFARE. THE PRIMARY FUNCTION OF A COURT IS TO ADJUDICATE DI SPUTES BETWEEN THE PARTIES AND TO ADVANCE SUBSTANTIAL JUSTICE. THE TIME LIMIT FIXED F OR APPROACHING THE COURT IN DIFFERENT SITUATIONS IS NOT BECAUSE ON THE EXPIRY OF SUCH TIM E A BAD CAUSE WOULD TRANSFORM INTO A GOOD CAUSE. THE OBJECT OF PROVIDING LEGAL REMEDY IS TO REPAIR THE DAMAGE CAUSED BY REASON OF LEGAL INJURY. IF THE EXPLANATION GIVEN DO ES NOT SMACK MALA FIDES OR IS NOT SHOWN TO HAVE BEEN PUT FORTH AS A PART OF A DILATORY STRA TEGY, THE COURT MUST SHOW UTMOST CONSIDERATION TO THE SUITOR.' THE APEX COURT FURTHER HELD THAT IT IS AXIOMATIC THAT CONDONATION OF DELAY IS A MATTER OF DISCRETION OF THE COURT. SECTI ON 5 OF THE LIMITATION ACT DOES NOT SAY THAT SUCH DISCRETION CAN BE EXERCISED ONLY IF THE D ELAY IS WITHIN A CERTAIN LIMIT. LENGTH OF DELAY IS NO MATTER, ACCEPTABILITY OF THE EXPLANATIO N IS THE ONLY CRITERION. SOMETIMES DELAY OF THE SHORTEST RANGE MAY BE UNCONTAINABLE DUE TO A WANT OF ACCEPTABLE EXPLANATION WHEREAS IN CERTAIN OTHER CASES, DELAY OF A VERY LON G RANGE CAN BE CONDONED AS THE EXPLANATION THEREOF IS SATISFACTORY. ONCE THE COURT ACCEPTS THE EXPLANATION AS SUFFICIENT, IT IS THE RESULT OF POSITIVE EXERCISE OF DISCRETION AN D NORMALLY THE SUPERIOR COURT SHOULD NOT DISTURB SUCH FINDING, MUCH LESS IN REVISIONAL JURIS DICTION, UNLESS THE EXERCISE OF DISCRETION WAS ON WHOLLY UNTENABLE GROUNDS OR ARBITRARY OR PER VERSE. BUT IT IS A DIFFERENT MATTER WHEN THE FIRST COURT REFUSES TO CONDONE THE DELAY. IN SU CH CASES, THE SUPERIOR COURT WOULD BE FREE TO CONSIDER THE CAUSE SHOWN FOR THE DELAY AFRE SH AND IT IS OPEN TO SUCH SUPERIOR COURT TO COME TO ITS OWN FINDING EVEN UNTRAMMELLED BY THE CONCLUSION OF THE LOWER COURT.' ITA NO. 547/ASR/2018 KASHMIR ROAD LINES V. DY. CIT 4 A COURT KNOWS THAT REFUSAL TO CONDONE DELAY WOULD R ESULT FORECLOSING A SUITOR FROM PUTTING FORTH HIS CAUSE. THERE IS NO PRESUMPTION TH AT DELAY IN APPROACHING THE COURT IS ALWAYS DELIBERATE. THIS COURT HAS HELD THAT THE WOR DS 'SUFFICIENT CAUSE' UNDER SECTION 5 OF THE LIMITATION ACT SHOULD RECEIVE A LIBERAL CONSTRU CTION SO AS TO ADVANCE SUBSTANTIAL JUSTICE VIDE SHAKUNTALA DEVI JAIN VS. KUNTAL KUMARI [AIR 19 69 SC 575] AND STATE OF WEST BENGAL VS. THE ADMINISTRATOR, HOWRAH MUNICIPALITY [AIR 197 2 SC 749]. IT MUST BE REMEMBERED THAT IN EVERY CASE OF DELAY THERE CAN BE SOME LAPSE ON THE PART OF THE LITIGANT CONCERNED. THAT ALONE IS NOT ENOUGH TO TURN DOWN HIS PLEA AND TO SHUT THE DOOR AGAINST HIM. IF THE EXPLANATION DOES NOT SMACK OF MALA FIDES OR IT IS N OT PUT FORTH AS PART OF A DILATORY STRATEGY THE COURT MUST SHOW UTMOST CONSIDERATION TO THE SUI TOR. BUT WHEN THERE IS REASONABLE GROUND TO THINK THAT THE DELAY WAS OCCASIONED BY TH E PARTY DELIBERATELY TO GAIN TIME THEN THE COURT SHOULD LEAN AGAINST ACCEPTANCE OF THE EXP LANATION. WHILE CONDONING DELAY THE COULD SHOULD NOT FORGET THE OPPOSITE PARTY ALTOGETH ER. IT MUST BE BORNE IN MIND THAT HE IS A LOOSER AND HE TOO WOULD HAVE INCURRED QUIET A LARGE LITIGATION EXPENSES. IT WOULD BE A SALUTARY GUIDELINE THAT WHEN COURTS CONDONE THE DEL AY DUE TO LACHES ON THE PART OF THE APPLICANT THE COURT SHALL COMPENSATE THE OPPOSITE P ARTY FOR HIS LOSS. 2.5 THE APEX COURT IN NAND KISHORE V. STATE OF PUNJAB ( 1995) 6 SCC 614, UNDER THE PECULIAR CIRCUMSTANCES OF THE CASE CONDO NED THE DELAY OF ABOUT 31 YEARS, IN APPROACHING THE APEX COURT AND HELD THAT IT MUST BE REMEMBERED THAT IN EVERY CASE OF DE LAY THERE CAN BE SOME LAPSE OF THE LITIGANT CONCERNED. THAT ALONE IS NOT ENOUGH TO TURN DOWN THE PLEAS AND TO SHUT THE DOORS AGAINST HIM. IF EXPLANATION DOES NOT SMACK MA LA FIDE OR DOES NOT PUT FORTH AS A DILATORY STRATEGY, THE COURT MUST SHOW UTMOST CONSI DERATION OF SUCH LITIGANT . THE APEX COURT IN THE CASE OF N. BALAKRISHNAN (SUPRA), CLEARLY HELD THAT THE LENGTH OF DELAY IS IMMATERIAL, IT IS THE ACCEPTABILITY OF THE EXPLANATION AND THAT IS THE ONLY CRITERIA FOR CONDONING THE DELAY. THE PRIMARY FUNCTION OF A COURT IS TO ADJUDICATE DISPUTES BETWEEN THE PARTIES AND TO ADVANCE SUBSTANTIAL JUSTICE. IT IS WELL SETTLED THAT BONAFIDE LIS CANNOT BE THROWN OUT ON THE BASIS OF LEGAL TECHNICALITIES AND IT IS UTMOST DUTY OF THE COURTS TO ADJUDICATE THE SAME. AS IT IS WELL SETTLED THAT THE PERIOD OF DELAY IS NOT RELEVANT FOR CONSIDERI NG THE ITA NO. 547/ASR/2018 KASHMIR ROAD LINES V. DY. CIT 5 APPLICATION FOR CONDONATION OF DELAY. WHAT IS REQUIRED TO BE SEEN AS TO WHETHER A PARTY SEEKING CONDONATION OF DELAY HAS MADE OUT A SUFFICIENT CAUSE OR NOT. 2.6 COMING TO THE INSTANT CASE. WE HAVE PERUSED THE AFFIDAV IT FILED BY THE PREVIOUS COUNSEL OF THE ASSESSEE WHO DEPOSED THAT THOUGH APPEAL WAS PREPARED AND APPEAL PAPERS HAVE BEE N HANDED OVER TO HIS ASSISTANT FOR DEPOSIT OF APPEAL FEE AND FILLING BEFORE ITAT, AMRITSAR AFTER GETTING SIGNED BY THE ASSE SSEE, HOWEVER DUE TO COMPLETE OVERSIGHT, THE SAME COULD NOT B EEN DONE AND ULTIMATELY FILED BELATEDLY THOUGH LOCAL COU NSEL SH. PADAM BEHAL LD. C.A. AND CONSEQUENTLY RESULTED INTO DE LAY OF 124 DAYS. THE ASSESSEE HAS DEMONSTRATED THE BONAFIDE REASONS AND SUFFICIENT CAUSE FOR NON-FILLING OF THE APPEAL WITHIN THE TIME LIMIT. THE CONTENTION OF THE ASSESSEE IS SUPPORTED BY THE AFFIDAV IT OF THE PREVIOUS COUNSEL AND EVEN WE COULD NOT FIND ANY MA TERIAL CONTRARY AND/OR ADVERSE TO THE CLAIM OF THE ASSESSEE, THER EFORE EXPLANATION OFFERED AND CAUSE SHOWN QUA DELAY OF 124 D AYS IN FILLING OF THE INSTANT APPEAL SEEMS TO BE BONAFIDE, RE ASONABLE, SUFFICIENT AND UNINTENTIONAL, HENCE DESERVES TO BE CONDO NED. CONSEQUENTLY THE SAME STANDS CONDONED. 3. COMING TO THE MERITS OF THE CASE, FROM THE IMPUGNED O RDER IT REFLECTS THAT THOUGH THE LD. CIT(A) FIXED THE CASE FOR HEARING ON VARIOUS DATES, HOWEVER ON MOST OF THE DATES, THE ASSE SSEE NEITHER ATTENDED THE APPELLATE PROCEEDINGS NOR FILED ANY ADJOURNMENT APPLICATION AND THEREFORE THE LD. CIT( A) WHILE OBSERVING THAT THE APPELLANT/ASSESSEE IS NOT INTERESTED I N PURSUING ITS APPEAL, DISMISSED THE SAME. ITA NO. 547/ASR/2018 KASHMIR ROAD LINES V. DY. CIT 6 4. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO THE ORDER IMPUGNED HEREIN. THE APPELLANT MOST OF THE TIMES, DI D NOT BOTHER ITSELF ON ONE OR OTHER REASON(S) TO APPEAR AND CO-ORDINATE WITH APPELLATE PROCEEDINGS EVEN AFTER AVAILING VARIOU S OPPORTUNITIES. ALTHOUGH THE INSTANT APPEAL OF THE ASSESS EE IS LIABLE TO BE DISMISSED IN ORDER TO GIVE EFFECT TO THE PRINCIPLE THAT LAW DOES NOT ASSIST THE PERSON WHO IS INACTIVE AND SLEEPS OVER HIS RIGHTS BY ALLOWING THEM WHEN CHALLENGED OR DISPUT ED TO REMAIN DORMANT, WITHOUT ASSERTING THEM IN A COURT OF L AW. THE, PRINCIPLE WHICH FORMS THE BASIS OF THIS RULE IS EXPRESSED IN THE MAXIM VIGILANTIBUS, NON DORMIENTIBUS, JURA SUBVENIUNT (LAW ASSISTS THOSE WHO ARE VIGILANT AND NOT THOSE WHO SLEEP OV ER THEIR RIGHTS), BUT EVEN A VIGILANT LITIGANT IS PRONE TO COM MIT MISTAKES. AS THE APHORISM TO ERR IS HUMAN AND IS MORE A PRACTICAL NOTION OF HUMAN BEHAVIOR THAN AN ABSTRACT PHILOSOPHY, THE UNINT ENTIONAL LAPSE ON THE PART OF A LITIGANT SHOULD NOT NORMALLY CAUSE THE DOORS OF THE JUDICATURE PERMANENTLY CLOSED BEFORE HIM. THE EFFORT OF THE COURT SHOULD NOT BE ONE OF FINDING MEAN S TO PULL DOWN THE SHUTTERS OF ADJUDICATORY JURISDICTION BEFORE A PARTY WHO SEEKS JUSTICE, ON ACCOUNT OF ANY MISTAKE COMMITTED BY HIM , BUT TO SEE WHETHER IT IS POSSIBLE TO ENTERTAIN HIS GRIEVANCE IF IT IS GENUINE, THEREFORE, CONSIDERING THE FACTS THAT THE LD. CIT(A) DID NOT PASS THE ORDER UNDER CHALLENGE ON MERIT , WE FEEL IT APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER AND TO R EMAND BACK THE INSTANT CASE TO THE FILE OF THE LD. CIT(A) FOR DECISION AFRESH ON MERITS, SUFFICE TO SAY WHILE AFFORDING PROPER AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE/AP PELLANT, IN ORDER TO FOLLOW THE PRINCIPLE OF NATURAL JUSTICE. ITA NO. 547/ASR/2018 KASHMIR ROAD LINES V. DY. CIT 7 WE ALSO FEEL IT APPROPRIATE TO DIRECT THE ASSESSEE/APPELLANT TO EXTEND ITS FULL CO-OPERATION AND PARTICIPATION IN THE APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A) AS AND WHEN WOULD BE REQUIRED AND IN CASE OF DEFAULT, THE ASSESSEE SHALL NOT BE SUBJECTED TO ANY LENIENCY. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 22.0 9.2020. SD/- SD/- ( N. K. SAINI ) (N.K.CHOUDHRY) VICE PRESIDENT JUDICIAL MEMBER DATED: 22.09.2020 GP/SR.PS. COPY OF THE ORDER FORWARDED TO: (1) APPELLANT (2) THE RESPONDENT (3) THE CIT(A) (4) THE CIT CONCERNED (5) THE SR. DR, I.T.A.T., AMRITSAR TRUE COPY BY ORDER