Sunil Kumar Sharma, Ghaziabad V. ITO WARD - 2(3), Ghaziabad

ITA 5486/DEL/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 9036 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 21-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: A K SRIVASTAVA
• Keywords: Opportunity of being heard; Condonation of delay
• Section: 142(1); 201; 143(2); 147; 148

Judgement Text

IN TH E INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : SMC - 2 : NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER ITA NO. 5486 /DEL/201 9 ASSESSMENT YEAR : 20 1 0 - 11 SUNIL KUMAR SHARMA, 98/4, DOUBLE STOREY, GOVIND PURI, GHAZIABAD, UTTAR PRADESH. PAN: A WKPS4448 J VS ITO, WARD - 2(3) , GHAZIABAD. (APP ELL A NT ) (RESPONDENT) A SSESSEE BY : SHRI A.K. SRIVASTAVA, CA RE VENUE BY : SHRI R.K. GUPTA, SR . DR DATE OF HEARING : 05 . 0 8 . 20 2 1 DATE OF PRONOUNCEMENT : 05 . 0 8 . 20 2 1 ORD ER TH IS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 30 TH MAY, 201 8 OF THE CIT(A) , GHAZIABAD, RELATING TO ASSESSMENT YEAR 20 1 0 - 11 . 2 . ALTHOUGH A NUMBER OF GROUNDS HAVE BEEN RAISED BY THE ASSESSEE , THESE ALL RELATE TO THE ORDER OF TH E CIT(A) IN DISMISSING THE APPEAL FILED BY THE ASSESSEE IN LIMINE ON ACCOUNT OF DELAY IN FILING OF THE APPEAL BY 34 DAYS. 3 . FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS A N INDIVIDUAL AND FILED HIS RETURN OF INCOME ON 21 ST MARCH, 2011 D ECLARING T HE TOTAL INCOME AT RS.1,59,790/ - . THE ASSESSEE DERIVES INCOME FROM COMMISSION AND BROKERAGE O N PROPERTY DEALING. ITA NO. 5486 /DEL/201 9 2 ON THE BASIS OF AIR INFORMATION THAT THE ASSESSEE HAS MADE CASH DEPOSIT OF RS.27,52,000/ - IN HIS SAVINGS BANK ACCOUNT DURING THE F.Y. 2009 - 10 , THE NOTICE U/S 148 OF THE ACT DATED 30 TH MARCH, 2017 WAS ISSUED AFTER REOPENING OF THE CASE U/S 147 BY RECORDING REASONS AND AFTER OBTAINING APPROVAL FROM THE CIT CONCERNED. IN RESPONSE TO NOTICE U/S 148, THE ASSESSEE FILED A LETTER STATING THAT THE RET URN ALREADY FILED ON 21.03.2011 MAY BE TREATED AS RETURN FILED IN RESPONSE TO NOTICE U/S 148. THE AO, THEREAFTER, ISSUED STATUTORY NOTICE U/S 143(2) AND 142(1) OF THE ACT. REJECTING THE VARIOUS EXPLANATIONS GIVEN BY THE ASSESSEE TOWARDS THE SOURCE OF SUC H CASH DEPOSIT IN THE BANK ACCOUNT, THE AO MADE ADDITION OF THE SAME TO THE TOTAL INCOME OF THE ASSESSEE AND DETERMINED THE TOTAL INCOME OF THE ASSESSEE AT RS.29,11.790/ - . 4. BEFORE THE LD. CIT(A), THE ASSESSEE FILED AN APPEAL WHICH WAS DELAYED BY 34 DAYS. SO FAR AS THE DELAY IN FILING OF THE APPEAL IS CONCERNED, IT WAS EXPLAINED THAT THE DOCUMENTS WERE GIVEN TO ONE COUNSEL FOR FILING THE APPEAL, BUT, SINCE THE ASSESSEE WAS NOT MEDICALLY FIT, HE COULD NOT PURSUE THE MATTER. HE WAS UNDER THE IMPRESSION THA T THE COUNSEL WILL FILE THE APPEAL IN TIME. HOWEVER, THE PREVIOUS COUNSEL DID NOT FILE THE APPEAL IN TIME AND THE ASSESSEE HAD TO ENGAGE ANOTHER PERSON TO FILE THE APPEAL FOR WHICH THE DELAY OCCURRED. 5. HOWEVER, THE CIT(A) DID NOT FIND THE EXPLANATION S ATISFACTORY. SHE HELD THAT CONDONATION OF DELAY IS NOT A MATTER OF RIGHT SINCE THE ASSESSEE HAS FAILED TO SHOW ITA NO. 5486 /DEL/201 9 3 REASONS OF DELAY ON THE LAST DAY OF LIMITATION AND, THEREAFTER, FOR EACH DAY. RELYING ON CERTAIN DECISIONS, THE LD.CIT(A) TREATED THE APPEAL IS NONEST BEING DEFECTIVE. 6 . AGGRIEVED WITH SUCH ORDER OF THE CIT(A) , THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 7 . I HAVE HEARD THE LD. DR AND PERUSED THE RECORD. I T IS AN ADMITTED FACT THAT THE AO PASSED THE ORDER ON 1 1.12. 2017 WHICH WAS RECEIVED BY THE ASSESSEE ON 15.01.2018. WE FIND THE ASSESSEE FILED THE APPEAL BEFORE THE CIT(A) ON 18.03.2018 AND, THEREFORE, ACCORDING TO THE CIT(A) , THERE WAS A DELAY OF 34 DAYS IN FILING OF THE APPEAL BEFORE HER. ON BEING ASKED BY THE CIT(A) TO EXPLAIN THE REA SON FOR DELAY, THE ASSESSEE HAD GIVEN HIS REPLY STATING THAT THE DOCUMENTS WERE GIVEN TO ONE COUNSEL FOR FILING THE APPEAL, BUT, SINCE THE ASSESSEE WAS NOT MEDICALLY FIT, HE COULD NOT PURSUE THE MATTER. THE ASSESSEE WAS UNDER THE IMPRESSION THAT THE COUNS EL WILL FILE THE APPEAL IN TIME. HOWEVER, THE PREVIOUS COUNSEL DID NOT FILE THE APPEAL IN TIME AND THE ASSESSEE HAD TO ENGAGE ANOTHER PERSON TO FILE THE APPEAL FOR WHICH THE DELAY OCCURRED. I FIND, THE LD.CIT(A) REJECTED THE ABOVE SUBMISSION OF THE ASSES SEE ON THE GROUND THAT CONDONATION OF DELAY IS NOT A MATTER OF RIGHT SINCE THE ASSESSEE HAS FAILED TO SHOW REASONS OF DELAY ON THE LAST DAY OF LIMITATION AND, THEREAFTER, FOR EACH DAY. 7.1 I FI ND, THE HON BLE SUPREME COURT IN THE CASE OF COLLECTOR LAND ACQUISITION VS. MST. KATIJI & ORS REPORTED IN 1982 2 SCC 107, HAS HELD THAT WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS ARE PITTED AGAINST EACH OTHER, CAUSE OF ITA NO. 5486 /DEL/201 9 4 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. THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONED DELIBERATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE, OR ON ACCOUNT OF MALA FIDES. I FIND, THE HON BLE SUPREME COURT WHILE CONDONING THE DELAY IN FILING OF AN APPEAL BY THE ASSESSEE HAS LAID DOWN THE FOLLOWING BROAD GUIDELINES TO BE KEPT IN MIND BY THE APPELLATE AUTHORITIES: - 1. ORDINARILY A LITIGANT DOES NOT STAND TO BENEFIT BY LODGING AN APPEAL LATE. 2. REFUSING TO CONDONE DELAY CAN RE SULT IN A MERITORIOUS 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. 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 CONSID ERATIONS 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 OCCASION ED 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 T O LEGALIZE INJUSTICE ON TECHNICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. 8. IN VIEW OF THE ABOVE DECISION OF THE HON BLE SUPREME COURT AND CONSIDERING THE LIBERAL APPROACH TAKEN BY THE COURTS WHILE GRANTING COND ONATION OF DELAY IN DESERVING CASES, I DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE CIT(A) WITH A DIRECTION TO CONDONE THE DELAY AND DECIDE THE APPEAL ON MERIT AFTER GIVING DUE ITA NO. 5486 /DEL/201 9 5 OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO HER EBY DIRECTED TO APPEAR BEFORE THE CIT(A) AND EXPLAIN ITS CASE, FAILING WHICH THE LD.CIT(A) IS AT LIBERTY TO PASS APPROPRIATE ORDER AS PER LAW. I HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPO SES. 9 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . P RONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF I.E, 05 . 0 8 .20 21 . SD/ - ( R. K. PANDA ) ACCOUNTANT MEMBER DATED: 05 TH AUGUST, 20 21 DK COPY FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASSTT. REGISTRAR, ITAT, NEW DELHI