AVS Holidays (P) Ltd, New Delhi V. ITO WARD - 3(4), New Delhi

ITA 6595/DEL/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 2842 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2016-2017
• Appeal Filed On: 08-08-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SANJIV MAHAJAN
• Keywords: Depreciation; Opportunity of being heard; Reasonable cause; Condonation of delay
• Section: 143(3)

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-1: NEW DELHI (THROUGH VIDEO CONFERENCING) BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO. 6595/DEL/2019 ASSTT. YEAR 2016-17 M/S. AVS HOLIDAYS (P) LTD. I-103,3 RD FLOOR, (OLD ADDRESS L-65), KIRTI NAGAR, DELHI 110 015. PAN AAFCA6843F VS. ITO, WARD-3(4) NEW DELHI. (APPELLANT) (RESPONDENT) O R D E R PER R.K. PANDA, AM THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 17 TH JUNE, 2019 OF THE LD. CIT(A)-1, NEW DELHI RELATING TO ASSESSMENT YEAR 2016-17. ASSESSEE BY: NONE DEPARTMENT BY : SHRI SANJIV MAHAJAN , SR. DR DATE OF HEARING 28 /01 /20 2 1 DATE OF PRONOUNCEMENT 25/02/2021 2 2. FACTS OF THE CASE, IN BRIEF, ARE THAT ASSESSEE IS A COMPANY ENGAGED IN THE BUSINESS OF TRAVEL AGENTS AND TOUR OPERATORS. IT FILED ITS RETURN OF INCOME ON 1 ST SEPTEMBER, 2016 DECLARING TOTAL INCOME OF RS. 2,53,190/-. THE AO COMPLETED THE ASSESSMENT U/S 143(3) ON 25 TH DECEMBER, 2018 DETERMINING THE TOTAL INCOME AT RS. 3,53,652/- WHEREIN HE MADE ADDITION OF RS. 1,00,463/- ON ACCOUNT OF INCOME FROM OTHER SOURCES WHICH ACCORDING TO HIM WAS NOT INCLUDED IN THE INCOME OF THE ASSESSEE. 2.1 SINCE THE APPEAL FILED BY THE ASSESSEE BEFORE THE LD. CIT(A) WAS DELAYED BY 37 DAYS, LD. CIT(A) DISMISSED THE SAME AS BARRED BY LIMITATION. 2.2 AGGRIEVED WITH SUCH ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISING FOLLOWING GROUNDS :- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) [CIT(A)] IS BAD BOTH IN THE EYE OF LAW AND ON FACTS. 2(I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN NOT CONDONING THE DELAY IN FILING THE APPEAL (II) THAT THE DELAY HAS NOT BEEN CONDONED DESPITE THE ASSESEE HAVING A REASONABLE CAUSE, BEYOND ITS CONTROL, FOR FILING THE APPEAL NOT IN TIME. 3 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED BOTH ON FACTS AND IN ALW IN DISMISSING THE APPEAL IN LIMINE, WITHOUT GIVING ANY FINDING ON THE MERITS OF THE CASE. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE ACTION OF THE AO IN DISALLOWING AN AMOUNT OF RS. 1,00,463/- ON ACCOUNT OF DEPRECIATION, MISINTERPRETING THE FACTS OF THE CASE. 5. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTER ANY OF THE GROUNDS OF APPEAL. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE AT THE TIME OF HEARING DESPITE ISSUE OF NOTICE. I, THEREFORE, PROCEED TO DECIDE THE APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND AFTER HEARING THE LD. DR. 3.1 A PERUSAL OF THE ORDER OF THE LD. CIT(A) SHOWS THAT HE DISMISSED THE APPEAL ON ACCOUNT OF DELAY IN FILING OF THE APPEAL BY 37 DAYS. ALTHOUGH THE ASSESSEE HAD MENTIONED THAT THE DELAY WAS DUE TO OVERSIGHT AND INADVERTENT MISTAKE AND, THEREFORE, THE DELAY MAY BE CONDONED IN THE INTEREST OF JUSTICE, HOWEVER, LD. CIT(A) RELYING ON VARIOUS DECISIONS DISMISSED THE APPEAL ON ACCOUNT OF DELAY IN FILING BY HOLDING THAT ASSESSEE FAILED TO SHOW REASONABLE / SUFFICIENT CAUSE FOR CONDONATION OF DELAY. 4 4. THE HONBLE SUPREME COURT IN THE CASE OF COLLECTOR LAND ACQUISITION, ... VS MST. KATIJI & ORS REPORTED IN 1987 2 SCC 107 ON THE ISSUE OF CONDONATION OF DELAY HAS MADE THE FOLLOWING OBSERVATIONS :- 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. 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 5 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. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND IN THE INTEREST OF JUSTICE I DIRECT THE LD. CIT(A) TO CONDONE THE DELAY OF 37 DAYS IN FILING THE APPEAL BY THE ASSESSEE AND DECIDE THE ISSUE ON MERIT AS PER FACT AND LAW AFTER GIVING A FINAL OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, I HOLD AND DIRECT ACCORDINGLY, GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 6 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 25/02/2021. SD/- (R.K. PANDA) ACCOUNTANT MEMBER DATED: 25/02/2021 VEENA COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI