Surendra Mohapatra, Ganjam V. ITO, Berhampur

ITA 571/CTK/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65165 (ITAT-CUTTACK)
• Duration Of Justice: 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2012
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 21-11-2012
• Court: TRIBUNAL
• Department Lawyers: N K NEB
• Assessee Lawyers: SIDHARTH RAY
• Keywords: Non compliance; Condonation of delay
• Section: 144

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK ( ) BEFORE . . , , HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER. /AND . . . , H ONBLE SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER / I.T.A.NO S . 571,572 AND 573/CTK/2012 / ASSESSMENT YEAR 2006 - 07 SHRI SURENDRA MAHAPATRA, PATANASAHI,LANGALASWAR, KHALLIKOTE,GANJAM PAN: AFTPM 5091 B - - - VERSUS - INCOME - TAX O FFICER, WARD 3, BERHAMPUR. ( /APPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI SIDHARTH RAY, AR / FOR THE RESPONDENT: / SHRI N.K.NEB, DR / DATE OF HEARING: 10.12.2012 / DATE OF PRONOUNCEMENT: 14.12.2012 / ORDER . . , , SHRI K.K.GUPTA, ACCOUNTANT MEMBER. THE ASSESSEE HAS FILED THESE APPEALS AGAINST THE ORDERS OF THE COMMISSIONER OF INCOME - TAX (APPEALS) WHEN THE LEARNED CIT(A) DISMISSED THE APPEALS PREFERRED BEFORE IT BY NOT CONDONING THE DELAY IN FILING THEREOF AGAINST THE ASSESSMENT PASSED U/S.144/147 AND THE ORDERS PASSED U/S.271(1)(B) AND U/S.271(1)(C) OF THE INCOME - TAX ACT,1961 FOR THE ASSESSMENT YEAR 2006 - 07. 2. WE HAVE HE ARD BOTH PARTIES AND PERUSED THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW. THE LEARNED CIT(A) HAS OBSERVED THAT THE ASSESSMENT ORDER ALONG WITH DEMAND NOTICE WAS SERVED ON THE ASSESSEE 30.7.2010 AND THE PENALTY ORDERS WERE SERVED ON 6.7.2010. AGAINST THESE ORDERS, THE ASSESSEE FILED APPEALS BEFORE THE LEARNED CIT(A) ON 10.5.2011 AND THUS THERE WAS DELAY IN FILING THE APPEALS. DURING THE COURSE OF HEARING BEFORE THE LEARNED CIT(A), THE ASSESSEE STATED TO HAVE FILED PETITION DT.23.2.2011 I.T.A.NOS. 571,572 AND 573/CTK/2012 2 SEEKING CONDONATION O F DELAY MAINLY ON THE GROUND THAT THE ASSESSEE WAS SUFFERING FROM JAUNDICE FEVER FROM 28.1.2010, TAKEN TREATMENT IN DIFFERENT HOSPITALS AND UNDER BED REST TILL SEPTEMBER. THE LEARNED CIT(A) HAS STATED IN HIS ORDER THAT THE ASSESSEE CLAIMED THAT THE THEN CI T(A) CONSIDERED THE CASE AFTER TAKING ORIGINAL MEDICAL CERTIFICATE FROM THE ASSESSEE AND PASSED AN ORDER IN THE NOTE - SHEET ON 15.4.2011. CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND THE MATERIAL AVAILABLE ON RECORD, THE LEARNED CIT(A) DISMISSED THESE AP PEALS OBSERVING IN PARAGRAPH 3.1 OF HIS ORDER, WHICH READS AS UNDER: 3. 1 . I HAVE CAREFULLY CONSIDERED THE MATTE R. DESPITE OPPORTUNITY THE LD. A/R COULD NOT PRODUCE EVEN A BASIC DOCUMENT LIKE A MEDI CAL CERTIFICATE IN SUPPORT OF T HE CONTENTION THAT THE DEL AY IN FILING OF THE APPEAL IS DUE T O ILLNESS OF THE ASSESSEE. DURING THE COURSE OF THE HEARING ON 17 .0 9 . 2012, THE LD. A/R COULD NOT FURNISH EVEN THE NAME OF THE DOCTOR OR THE HOSPITAL WHERE THE ASSESSEE GOT HIMSELF TREATED. NO OTHER SUPPOR TI NG EVIDENCE LIK E A PRESCRIPTION OR A BILL FOR PURCHASE OF MEDICINE WAS ALSO FILED. ADMITTEDLY, IT APPEARS FROM THE COPY OF THE LETTER FILED DURING THE COURSE OF THE HEARING THAT A PETITION WAS FILED IN THIS OFFICE ON 23 . 02 . 2011 REQUESTING FOR CONDONATION. IT MAY BE MENTI ONED THAT THERE IS NO PROVISION FOR SUCH INTERIM CONDONATION IN THE STATUTE. EVEN OTHERWISE BY FEBRUARY,2011, THERE IS ALREADY A DELAY OF MORE THAN SIX MONTHS IN FILING THE APPEAL. THERE IS ALSO NO EXPLANATION FOR THE DELAY BETWEEN 23 FEBRUARY, 2011 AND 10 TH MAY, 2011 WHEN THE APPEAL WAS FINALLY FILED. THERE IS ALSO NO RECORD REG ARDING THE DISCUSSION ON 15.04.201 1 MENTIONED BY THE LD. A/R IN HIS WRITTEN SUBMISSION. INCIDENTALLY THAT WAS THE DATE ON WHICH THE UNDERSIGNED JOINED ON TRANSFER AND MY PREDECESSOR IN OFFICE HANDED OVER THE CHARGE IN THE FORENOON THAT DAY. I HAVE ALSO NOTED THAT ASSESSEE HAS SHOWN SCANT REGARD FOR THE STATUTORY NOTICES. THERE WAS NO COMPLIANCE BEFORE THE AO IN THE ASSESSMENT PROCEEDING WHICH RESULTED IN THE ASSESSMENT BEING MADE U/S 144 O F THE IT. ACT. BECAUSE OF NON COMPLIANCE, A PENALTY U/S.271(1 )(B) WA S ALSO IMPOSED BY THE AO. THE AO ALSO IMPOSED PENALTY U/S.271(1 )(C). IN BOTH THESE PENALTY PROCEEDINGS ALSO THERE WAS ABSOLUTELY NO COMPLIANCE. THE D ISREGARD FOR STATUTORY PROVISIONS CONTIN UES EVEN AFTER T HE ORDERS WERE PASSED AND THE ASSESSEE DID NOT BOTHER TO FILE APPEAL IN TIME. THE EXPLANATION OFFERED CONCERNING ILLNESS IS WITHOUT ANY BASIS OR A SHRED OF EVIDENCE. IN VIEW OF THE SAME, I AM UNABLE TO CONDONE THE DELAY IN FILING OF THE APPEAL AND ACCORDINGLY, THE APPEAL IS, THEREFORE, DISMISSED FOR UNEXPLAINED DELAY. I.T.A.NOS. 571,572 AND 573/CTK/2012 3 HON BLE SUPREME COURT IN THE CASE OF VEDABAI ALIAS VAIJAYANATABAI BABURAO PATIL VS. SHANTARAM BABURAO PATIL & ORS. 253 ITR 798 (SC), THE COURSE REQUIRED ARE TO EXERCISE THE DISCRETION FOR CONDONATION OF DELAY ON THE FACTS OF EACH CASE KEEPING IN MIND THAT IN CONSTRUING THE EXPRESSION SUFFICIENT CAUSE THE PRINCIPLE OF ADVANCING SUBSTANTIAL JUSTICE IS OF PRIME IMPORTANCE. THE RELEVANT OBSERVATIONS FROM THE SAID DECISION ARE REPRODUCED BELOW FOR THE SAKE OF CONVENIENCE : - IN EXERCISING DISCRETION UNDER SECTION 5 OF THE LIMITATION ACT THE COURTS SHOULD ADOPT A PRAGMATIC APPROACH. A DISTINCTION MUST BE MADE BETWEEN A CASE WHERE THE DELAY IS INORDINATE AND A CASE WHERE THE DELAY IS OF A FEW DAYS. WHEREAS IN THE FORMER CASE THE CONSIDERATION OF PREJUDICE TO THE OTHER SIDE WILL BE A RELEVANT FACTOR SO THE CASE CALLS FOR A MORE CAUTIOUS APPROACH BUT IN THE LATTER CASE, NO SUCH CONSIDERATION MAY ARISE AND SUCH A CASE DESERVES A LIBERAL APPROACH. NO HARD AND FAST RULE CAN BE LAID DOWN IN THIS REGARD. THE COURT HAS TO EXERCISE THE DISCRETION ON THE FACTS OF EACH CASE KEEPING IN MIND THAT IN CONSTRUING THE EXPRESSION 'SUFFICIENT CAUSE', THE PRINCIPLE OF ADVANCING SUBSTANTIAL JUSTICE IS OF PRIME IMPORTANCE. IN OUR VIEW IN THIS CASE, THE APPROACH OF THE LEARNED CIVIL JUDGE IS WHOLLY ERRONEOUS AND HIS ORDER IS UNSUSTAINABLE. IT IS EVIDENT THAT THE DISCRETION UNDER SECTION 5 OF THE LIMITATION ACT IS EXERCISED BY THE CIVIL JUDGE IN CONTRA VENTION OF THE LAW LAID DOWN BY THIS COURT, THAT THE EXPRESSION 'SUFFICIENT CAUSE' SHOULD RECEIVE LIBERAL CONSTRUCTION, IN A CATENA OF DECISIONS (SEE STATE OF WEST BENGAL V. ADMINISTRATOR, HOWRAH MUNICIPALITY, AIR 1972 SC 749 ; [1972] 1 SCC 366 AND SMT. SA NDHYA RANI SARKAR V. SMT. SUDHA RANI DEBI, AIR 1978 SC 537; [1978] 2 SCC 116). THE HIGH COURT IN EXERCISING ITS JURISDICTION UNDER SECTION 115 OF THE CIVIL PROCEDURE CODE, FAILED TO CORRECT THE JURISDICTIONS ERROR OF THE APPELLATE COURT. FURTHER IN THE C ASE OF COLLECTOR L AND ACQUISITION, ANANTNAG & ANR V. M ST. KATIJI & ORS HONBLE SUPREME COURT HAS OBSERVED - 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 CONDONED THE HIGHEST THAT CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERITS AFTER HEARING THE PARTIES. I.T.A.NOS. 571,572 AND 573/CTK/2012 4 3. 'EVERY DAY'S DELAY M UST 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 PR ESUMPTION THAT DELAY IS OCCASIONED DELIBERATELY, OR ON ACCOUNT OF CULPABLE NEG LIGENCE, 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 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. WE NOW EXAMINE THE CASE ON HAND IN THE LIGHT OF THE ABOVE VIEWS EXPRESSED BY HONBLE APEX COURT . IT IS UND ISPUTED FACTS THAT THE ASSESSMENT HAS BEEN MADE U/S.144/147 ONLY TO BRING TO TAX AS ADDITION TO THE INCOME RETURNED BY THE ASSESSEE BY ASSESSING, AFTER ISSUING NOTICE U/S.148, DISALLOWANCE OF EXPENDITURE U/S.40(A)(IA) AS TAX HAD NOT BEEN DEDUCTED AT SOURC E U/S.194I,WHICH SIMULTANEOUSLY CANNOT BE PROCESSED U/S.144 AS WELL AS U/S.147 ON THE FACE OF IT INVITING PENALTIES SIMULTANEOUSLY. REFRAINING OURSELVES TO COMMENT ON THE LEGAL ASPECT AND IN VIEW OF THE ABOVE, WE FIND THAT THE LATE FILING OF THE APPEALS BE FORE THE LEARNED CIT(A) WAS NEITHER DELIBERATE LY DELAYED N OR ON ACCOUNT OF CULPABLE NEGLIGENCE OR ON ACCOUNT OF ANY MALAFIDE INTENTION , AS A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING DELAY IN FILING THE APPEAL. CONSIDERING THE FACTS AND CIRCUMSTANCES IN ENTIRETY, WE ARE OF THE CONSIDERED VIEW THAT THE FACTS AND CIRCUMSTANCES JUSTIFIES CONDONATION OF DELAY IN FILING THE APPEALS BEFORE THE LEARNED CIT(A). THE LEARNED CIT(A) HAVING NOT DONE SO, WE SET ASIDE THE IMPUGNED ORDER OF THE LEARNED CIT(A), CONDO NE THE DELAY IN FILING THE APPEALS BEFORE HIM AND RESTORE THE APPEALS TO HIS FILE TO HEAR THE APPEAL ON MERITS OF THE ISSUES RAISED BEFORE HIM IN THE RESPECTIVE APPEALS AND PASS NECESSARY I.T.A.NOS. 571,572 AND 573/CTK/2012 5 CONSEQUENTIAL ORDERS IN ACCORDANCE WITH LAW AFTER GIVING PROPER OPPO RTUNITIES TO BOTH THE PARTIES . THE ASSESSEE IS ALSO DIRECTED TO COOPERATE IN EARLY DISPOSAL OF THE APPEALS BY PRODUCING NECESSARY DETAILS AS WOULD BE REQUIRED BY THE LEARNED CIT(A). 3. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTI CAL PURPOSES. SD/ - SD/ - ( . . . ) , (K.S.S.PRASAD RAO), JUDICIAL MEMBER ( . . ) , , (K.K.GUPTA), ACCOUNTANT MEMBER. ( ) DATE: 14.12.2012 - COPY OF THE ORDER FORWARDED TO: 1 . / THE APPELLANT : SHRI SURENDRA MAHAPATRA, PATANA SAHI,LANGALASWAR,KHALLIKOTE,GANJAM 2 / THE RESPONDENT: INCOME - TAX OFFICER, WARD 3, BERHAMPUR. 3 . / THE CIT, 4 . ( )/ THE CIT(A), 5 . / DR, CUTTACK BENCH 6 . GUARD FILE . / TRUE COPY, / BY ORDER, APPENDIX XVII SEAL TO BE AFFIXED ON THE ORDER SHEET BY THE SR. P.S./P.S. AFTER DICTATION IS GIVEN 1. DATE OF DICTATION 10.12.2012 . 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEF ORE THE DICTATING MEMBER 11.12.2012 OTHER MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.... 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S . 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 14.12.2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE G OES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER ................ 9. DATE OF DESPATCH OF THE ORDER .. ( ), (H.K.PADHEE), SENIOR.PRIVATE SECRETARY.