KIRAN GULAB BHATIA, MUMBAI V. INCOME TAX OFFICER, RANGE-24(2)(3), MUMBAI

ITA 6400/MUM/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1053 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 31-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N HEMALATHADR
• Assessee Lawyers: JITENDRA SINGH
• Keywords: Opportunity of being heard; Condonation of delay
• Section: 143(3); 68

Judgement Text

, - , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI , ! ' , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, ITA NOS.6400 TO 6403/MUM/2017 ASSESSMENT YEARS: 2008-09 TO 2011-12 KIRAN GULAB BHATIA, 130, SHAHEED BHAGATSINGH COLONY, ANDHERI KURLA ROAD, ANDHERI (EAST), MUMBAI-400059 / VS. INCOME TAX OFFICER, WARD-24(2)(3), ROOM NO.609, 6 TH FLOOR, PIRAMAL CHAMBERS, LALBAUG MUMBAI-400012 / ASSESSEE / REVENUE P.A. NO. AAAPB6296K $ % & / ASSESSEE BY SHRI JITENDRA SINGH $ % & / REVENUE BY MS. N. HEMALATHA-DR / DATE OF HEARING 04/01/2018 & / DATE OF ORDER: 04/01/2018 & / O R D E R THIS BUNCH OF FOUR APPEALS IS BY THE ASSESSEE AGAI NST THE IMPUGNED ORDERS ALL DATED 20/06/2017 OF THE LD. FIRST APPELLATE AUTHORITY, MUMBAI. ITA NOS.6400 TO 6403/MUM/2017 KIRAN GULAB BHATIA 2 2. DURING HEARING, THE LD. COUNSEL FOR THE ASSESSE E, SHRI JITENDRA SINGH, INVITED MY ATTENTION TO THE FA CT THAT ALL THE APPEALS WERE FILED LET AND THUS BARRED BY LIMIT ATION FOR 49 DAYS. THE ASSESSEE HAS MOVED APPLICATION FOR CODONA TION OF DELAY STATING THE REASONS THEREIN AND CONTENDED THA T THE DELAY MAY BE CONDONED. THE LD. DR, MS. N. HEMALATHA , CONTENDED THAT DELAY MAY NOT BE CONDONED. 2.1. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW O F THE ASSERTIONS MADE BY THE LD. RESPECTIVE COUNSEL, SO F AR AS, CONDONATION OF DELAY IS CONCERNED NO DOUBT FILING O F AN APPEAL IS A RIGHT GRANTED UNDER THE STATUTE TO THE ASSESSEE AND IS NOT AN AUTOMATIC PRIVILEGE, THEREFORE, THE A SSESSEE IS EXPECTED TO BE VIGILANT IN ADHERING TO THE MANNER A ND MODE IN WHICH THE APPEALS ARE TO BE FILED IN TERMS OF TH E RELEVANT PROVISIONS OF THE ACT. NEVERTHELESS, A LIBERAL APPR OACH HAS TO BE ADOPTED BY THE APPELLATE AUTHORITIES, WHERE DELA Y HAS OCCURRED FOR BONA-FIDE REASONS ON THE PART OF THE ASSESSEE OR THE REVENUE IN FILING THE APPEALS. IN MATTERS CONC ERNING THE FILING OF APPEALS, IN EXERCISE OF THE STATUTORY RIG HT, A REFUSAL TO CONDONED THE DELAY CAN RESULT IN A MERITORIOUS MATT ER BEING ITA NOS.6400 TO 6403/MUM/2017 KIRAN GULAB BHATIA 3 THROWN OUT AT THE THRESHOLD, WHICH MAY LEAD TO MISC ARRIAGE OF JUSTICE. THE JUDICIARY IS RESPECTED NOT ON ACCOU NT OF ITS POWER TO LEGALIZE IN JUSTICE ON TECHNICAL GROUNDS B UT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. 2.2. THE HONBLE APEX COURT IN A CELEBRATED DECIS ION IN COLLECTOR, LAND ACQUISITION VS MST. KATIJI & ORS. 1 67 ITR 471 OPINED THAT WHEN TECHNICAL CONSIDERATION AND SUBSTA NTIAL JUSTICE ARE PITTED AGAINST EACH OTHER, THE COURTS A RE EXPECTED TO FURTHER 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 N ON- DELIBERATE DELAY. THEREFORE, IT FOLLOWS THAT WHILE CONSIDERING MATTERS RELATING TO THE CONDONATION OF DELAY, JUDIC IOUS AND LIBERAL APPROACH IS TO BE ADOPTED. IF SUFFICIENT C AUSE IS FOUND TO EXIST, WHICH IS BONA-FIDE ONE, AND NOT DUE TO NE GLIGENCE OF THE ASSESSEE, THE DELAY NEEDS TO CONDONED IN SUCH C ASES. THE EXPRESSION SUFFICIENT CAUSE IS ADEQUATELY ELASTIC TO ENABLE THE COURTS TO APPLY LAW IN A MEANINGFUL MANNER, WHI CH SUB- SERVES THE END OF JUSTICE- THAT BEING THE LIFE PURP OSE OF THE EXISTENCE OF THE INSTITUTION OF THE COURTS. WHEN S UBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATION ARE PITTED AGAI NST EACH ITA NOS.6400 TO 6403/MUM/2017 KIRAN GULAB BHATIA 4 OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED. THE HONBLE APEX COURT IN VEDABHAI VS SA NTARAM 253 ITR 798 OBSERVED THAT INORDINATE DELAY CALLS OF CAUTIOUS APPROACH. THIS MEANS THAT THERE SHOULD BE NO MALAF IDE OR DILATORY TACTICS. SUFFICIENT CAUSE SHOULD RECEIVE LIBERAL CONSTRUCTION TO ADVANCE SUBSTANTIAL JUSTICE. THE H ONBLE APEX COURT IN 167 ITR 471 OBSERVED AS UNDER:- 3. THE LEGISLATURE HAS CONFERRED THE POWER TO COND ONE DELAY BY ENACTING SECTION 51 OF THE LIMITATION ACT OF 1963 I N ORDER TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO PART IES BY DISPOSING OF MATTERS ON DE MERITS. THE EXPRESSION SUFFICIENT CAUSE EMPLOYED BY THE LEGISLATURE IS ADEQUATELY EL ASTIC 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 C OMMON KNOWLEDGE THAT THIS COURT HAS BEEN MAKING A JUSTIFI ABLY LIBERAL APPROACH IN MATTERS INSTITUTED IN THIS COURT. BUT T HE MESSAGE DOES NOT APPEAR TO HAVE PERCOLATED DOWN TO ALL THE OTHERS COURTS IN THE HIERARCHY. 2.3. FURTHERMORE, THE HON'BLE SUPREME COURT IN THE CASE OF VEDABAI ALIA VAIJAYANATABAI BABURAO PATIL V S. SHANTARAM BABURAO PATIL 253 ITR 798 HELD THAT THE C OURT HAS TO EXERCISE THE DISCRETION ON THE FACTS OF EACH CASE ITA NOS.6400 TO 6403/MUM/2017 KIRAN GULAB BHATIA 5 KEEPING IN MIND THAT IN CONSTRUING THE EXPRESSION SUFFICIENT CAUSE, THE PRINCIPLE OF ADVANCING SUBSTANTIAL JUST ICE IS OF PRIME IMPORTANCE. THE COURT HELD THAT THE EXPRESSIO N SUFFICIENT CAUSE SHOULD RECEIVE LIBERAL CONSTRUCT ION. 2.4. THE DECISION OF THE TRIBUNAL IN PEOPLE INFOCO M PRIVATE LTD. V/S CIT (ITA NO.210/MUM/2013) ORDER DA TED 19/05/2016, M/S NEUTRON SERVICES CENTRE PVT. LTD VS ITO (ITA NO.1180/MUM/2012) ORDER DATED 18/02/2016, SHRI SAIDATTA COOP-. CREDIT SOCIETY LTD. V/S ITO (ITA NO.2379/MUM/2015) ORDER DATED 15/01/2016 AND MR. NIKUNJ BAROT (PROP. ENIGMA) VS ITO (ITA NO.4887/MUM/2015) ORDER DATED 06/01/2016, WHEREIN, SUBSTANTIAL DELAY WAS CONDONED, SUPPORTS T HE CASE OF THE PRESENT ASSESSEE. HAVING MADE THE AFORESAID OBSERVATION AND VARIOUS DECISIONS DISCUSSED HEREINA BOVE, INCLUDING FROM HONBLE APEX COURT, THE CIRCUMSTANCE S NARRATED BY THE ASSESSEE, WHEREIN, HE HAS STATED TH E REASONS WHICH CAUSED THE DELAY, THEREFORE, THE DELAY IS CON DONED. 3. SO FAR AS, THE GROUND RAISED, ON MERIT IS CONCE RNED, IT WAS EXPLAINED THAT THE IMPUGNED ORDERS WERE PASS ED BY THE FIRST APPELLATE AUTHORITY AND DISMISSED THE APPEAL MERELY ON ITA NOS.6400 TO 6403/MUM/2017 KIRAN GULAB BHATIA 6 TECHNICAL GROUNDS AS WERE FILED ON MANUAL FORM INST EAD OF E- FORM PRESCRIBED BY CBDT WITHOUT APPRECIATING THAT THE ASSESSEE DUE TO SOME DIFFICULTIES COULD NOT BE ABLE TO E-FILE THE APPEAL MEMOS, WITHOUT PROVIDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD. DR CONTENDED THAT TH E ASSESSEE WAS EXPECTED TO E-FILE ON PRESCRIBED FORM. 3.1. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WITHOUT G OING INTO MUCH DELIBERATION, I AM OF THE VIEW THAT MERELY ON TECHNICAL GROUNDS, THE APPEALS SHOULD NOT HAVE BEEN DISMISSED AND THE ASSESSEE SHOULD HAVE BEEN HEARD ON MERIT. THE ASSES SEE IS A PROPRIETOR OF HEMKIRAN ELECTRONICS. ADDITIONS U/S 6 8 OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) WERE MAD E WHILE PASSING THE ORDER U/S 143(3) R.W.S. 147 OF THE ACT. ADMITTEDLY, THE ASSESSEE WAS EXPECTED TO FILE THE A PPEALS ELECTRONICALLY AS PER CIRCULAR NO.20 AUTOMATICALLY DOES NOT LEAD TO THE CONCLUSION THAT IF DUE TO TECHNICAL REA SONS, THE SAME IS FILED MANUALLY, IT WILL BE TREATED NOT MAIN TAINABLE. IF THE LD. COMMISSIONER OF INCOME TAX (APPEAL) WAS NOT SATISFIED WITH MANUAL FILING, NOTHING PREVENTED HIM TO HEAR THE PRACTICAL DIFFICULTIES OF THE ASSESSEE AND THEN TO ITA NOS.6400 TO 6403/MUM/2017 KIRAN GULAB BHATIA 7 ADJUDICATE THE SAME. THE APPEALS WERE FILED ON MANU AL FORM ON 13/02/2017. EVEN OTHERWISE, AS PER ARTICLE-265 O F THE CONSTITUTION OF INDIA ONLY DUE ARE TO BE LEVIED/COL LECTED, THEREFORE, WITHOUT GOING INTO MUCH DELIBERATION, TH E LD. COMMISSIONER OF INCOME TAX (APPEAL) IS DIRECTED TO ADJUDICATED THE APPEALS OF THE ASSESSEE ON MERIT AF RESH. THE ASSESSEE BE GIVEN OPPORTUNITY OF BEING HEARD WITH F URTHER LIBERTY TO FURNISH EVIDENCE, IF ANY, TO SUBSTANTIAT E HIS CLAIM. THUS, ALL THE APPEALS ARE ALLOWED FOR STATISTICAL P URPOSES. FINALLY, THE APPEALS OF THE ASSESSEE ARE ALLOWED FO R STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVE FROM BOTH SIDES AT T HE CONCLUSION OF THE HEARING ON 04/01/2018. SD/- (JOGINDER SINGH) ! ' / JUDICIAL MEMBER MUMBAI; DATED : 04/01/2018 F{X~{T? P.S / ! & $ )!*+ ,&+-* / COPY OF THE ORDER FORWARDED TO : 1. '#$%& / THE APPELLANT 2. '(%& / THE RESPONDENT. 3. ) ) * / THE CIT, MUMBAI. 4. ) ) * / CIT- , MUMBAI 5. +,- ' , ) '#$ ' / , / DR, ITA NOS.6400 TO 6403/MUM/2017 KIRAN GULAB BHATIA 8 ITAT, MUMBAI 6. -0 1$ / GUARD FILE. & / BY ORDER, (+# ' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI