RAJENDRA C. JAIN, MUMBAI V. ACIT 17(3), MUMBAI

ITA 7376/MUM/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3018 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 24-12-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Reasonable cause
• Section: 13

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI C. N. PRASAD , JM & SHRI S . RIFAUR RAHMAN, AM ./ I.T.A. NO . 7376 / MUM/ 2018 ( / ASSESSMENT YEAR: 2012 - 13 ) SHRI RAJENDRA CHHAGANLAL JAIN, 92, GROUND FLOOR, DHANJI STREET, MANDVI, MUMBAI - 400 003 . / VS. A CIT - 17(3), MUMBAI, PIN - ./ ./ PAN NO. ABIPJ 5922 F ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHR I TANMAY PHADKE, AR / RESPONDENTBY : SHRI KIRAN UNAVEKAR , DR / DATE OF HEARING : 26.02.2020 / DATE OF PRONOUNCEMENT : 28.02.2020 / O R D E R PER S. RIFAUR RAHMAN, ACCOUNTANT MEMBER : THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. COMMIS S IONER OF INCOME TAX - 28 IN SHORT REFERRED AS LD. CIT (A) , MUMBAI, DATED 06.12.18 FOR A SSESSMENT YEAR (IN SHORT A Y ) 2012 - 13 ON THE GROUND THAT LD. 2 I.T.A. NO. 7376 /MUM/201 8 SHRI RAJENDRA CHHAGANLAL JAIN, CIT(A) ERRED IN DISMISSING THE APPEAL IN LIMINI THAT THE AFFIDAVIT FILED BY THE I.T. CONSULTANT IS NOTHING BUT A SELF SERVING STATEMENT OF THIRD PERSON. 2 . A T THE TIME OF HEARING, LD. AR SUBMITTED BEFORE US THAT LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT CONDONING THE DELAY IN FILING THE APPEAL AS NO SUCH SUFFICIENT CAUSE IS ESTABLISHED. EVEN THOUGH, ASSESSEE HAS FILED THE AFFIDAVIT OF INCOME TAX CONSULTANT WAS A REASONABLE CAUSE TO CONDONE THE DELAY OF 94 DAYS IN FILING THE APPEAL. BUT, LD. CIT(A) ERRED IN DISMISSING THE APPEAL IN LIMINI THAT THE AFFIDAVIT FILED BY T HE I.T. CONSULTANT IS NOTHING BUT A SELF SERVING STATEMENT OF THIRD PERSON. 3 . ON THE OTHER HAND, LD. DR RELIED UPON THE ORDERS PASSED BY THE REVENUE AUTHORITIES. 4. CONSIDERING THE RIVAL SUBMISSION S AND MATERIAL PLACED ON RECORD, WE NOTICE THAT THE MOO T QUESTION TO BE ADJUDICATED IS WITH RESPECT TO CONDONATION OF DELAY. BROADLY, WE ARE OF THE VIEW, THAT THE COURTS AND THE QUASI - JUDICIAL BODIES ARE 3 I.T.A. NO. 7376 /MUM/201 8 SHRI RAJENDRA CHHAGANLAL JAIN, EMPOWERED TO CONDONE THE DELAY, IF A LITIGANT SATISFIES THE COURTS THAT THERE WAS SUFFICIENT REASON FOR AVA ILING THE REMEDY AFTER THE EXPIRY OF LIMITATION. SUCH REASONING SHOULD BE TO THE SATISFACTION OF THE COURT. THE EXPRESSION SUFFICIENT CAUSE OR REASONS AS PROVIDED IN SUB - SECTION (5) OF SECTION 253 OF THE ACT IS USED IN IDENTICAL POSITION IN THE LIMITATI ON ACT 1963, AND IN CPC. SUCH EXPRESSION HAS ALSO BEEN USED IN OTHER SECTIONS OF THE INCOME TAX ACT SUCH AS SECTION 273, 274, ETC. KEEPING IN MIND, THE AUTHORITATIVE PRONOUNCEMENT FROM HONBLE APEX COURT, IT IS ADMITTED POSITION THAT THE WORDS SUFFICIENT CAUSE APPEARING IN SUB - SECTION (5) OF SECTION 253 OF THE ACT SHOULD RECEIVE A LIBERAL CONSTRUCTION SO AS TO ADVANCE SUBSTANTIAL JUSTICE. IT MUST BE REMEMBERED THAT IN EVERY CASE OF DELAY, THERE CAN BE SOME LAPSES ON THE PART OF THE LITIGANT CONCERN. THAT ALONE IS NOT ENOUGH TO TURN DOWN THE PLEA AND TO SHUT THE DOORS AGAINST HIM, UNLESS AND UNTIL, IT MAKES A MALA - FIDE OR A DILATORY STATUTORY, THE COURT MUST SHOW UTMOST CONSIDERATION TO SUCH LITIGANT. FURTHER THE LENGTH OF DELAY IS IMMATERIAL, IT IS THE ACC EPTABILITY OF THE EXPLANATION AND THAT IS THE ONLY CRITERIA FOR CONDONING THE DELAY. 4 I.T.A. NO. 7376 /MUM/201 8 SHRI RAJENDRA CHHAGANLAL JAIN, 5. IN SUCH A SITUATION, NO DOUBT FILING OF AN APPEAL IS A RIGHT GRANTED UNDER THE STATUTE TO THE ASSESSEE AND IS NOT AN AUTOMATIC PRIVILEGE, THEREFORE, THE ASSESSEE IS EXPECTED TO BE VIGILANT IN ADHERING TO THE MANNER AND MODE IN WHICH THE APPEALS ARE TO BE F ILED IN TERMS OF THE RELEVANT PROVISIONS OF THE ACT. NEVERTHELESS, A LIBERAL APPROACH HAS TO BE ADOPTED BY THE APPELLATE AUTHORITIES, WHERE DELAY HAS OCCURRED FOR BONA FIDE REASONS ON THE PART OF THE ASSESSEE OR THE REVENUE IN FILING THE APPEALS. IN MAT TERS CONCERNING THE FILING OF APPEALS, IN EXERCISE OF THE STATUTORY RIGHT, A REFUSAL TO CONDONED THE DELAY CAN RESULT IN A MERITORIOUS MATTER BEING THROWN OUT AT THE THRESHOLD, WHICH MAY LEAD TO MISCARRIAGE OF JUSTICE. THE JUDICIARY IS RESPECTED NOT ON ACC OUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. 6. THE HONBLE APEX COURT IN A CELEBRATED DECISION IN COLLECTOR, LAND ACQUISITION VS MST. KATIJI & ORS. 167 ITR 471 OPI NED THAT WHEN TECHNICAL CONSIDERATION AND SUBSTANTIAL JUSTICE ARE PITTED AGAINST EACH OTHER, THE COURTS ARE EXPECTED TO FURTHER THE CAUSE OF SUBSTANTIAL JUSTICE. THIS IS FOR THE REASON THAT 5 I.T.A. NO. 7376 /MUM/201 8 SHRI RAJENDRA CHHAGANLAL JAIN, AN OPPOSING PARTY, IN A DISPUTE, CANNOT HAVE A VESTED RIGHT IN IN JUSTICE BEING DONE BECAUSE OF A NON - DELIBERATE DELAY. THEREFORE, IT FOLLOWS THAT WHILE CONSIDERING MATTERS RELATING TO THE CONDONATION OF DELAY, JUDICIOUS AND LIBERAL APPROACH IS TO BE ADOPTED. IF SUFFICIENT CAUSE IS FOUND TO EXIST, WHICH IS BONA - FIDE ONE, AND NOT DUE TO NEGLIGENCE OF THE ASSESSEE, THE DELAY NEEDS TO CONDONED IN SUCH CASES. THE EXPRESSION SUFFICIENT CAUSE IS ADEQUATELY ELASTIC TO ENABLE THE COURTS TO APPLY LAW IN A MEANINGFUL MANNER, WHICH SUB - SERVES THE END OF JUSTICE - THAT BEING T HE LIFE PURPOSE OF THE EXISTENCE OF THE INSTITUTION OF THE COURTS. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATION ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED. THIS MEANS THAT THERE SHOULD BE NO MALAFIDE O R DILATORY TACTICS. SUFFICIENT CAUSE SHOULD RECEIVE LIBERAL CONSTRUCTION TO ADVANCE SUBSTANTIAL JUSTICE. THE HONBLE APEX COURT IN COLLECTOR, LAND ACQUISITION VS MST. KATIJI & ORS. (167 ITR 471) OBSERVED AS UNDER: - 3. THE LEGISLATURE HAS CONFERRED THE P OWER TO CONDONE DELAY BY ENACTING SECTION 51 OF THE LIMITATION ACT OF 1963 IN ORDER TO ENABLE THE COURTS 6 I.T.A. NO. 7376 /MUM/201 8 SHRI RAJENDRA CHHAGANLAL JAIN, TO DO SUBSTANTIAL JUSTICE TO PARTIES BY DISPOSING OF MATTERS ON DE MERITS. THE EXPRESSION SUFFICIENT CAUSE EMPLOYED BY THE LEGISLATURE IS ADEQUATELY ELASTIC 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 COMMON KNOWLEDGE THAT THIS COURT HAS BEEN MAKING A JUSTIFIABLY LIBERAL APPROACH IN MATTERS INSTITUTED IN THIS COURT. BUT THE MESSAGE DOES NOT APPEAR TO HAVE PERCOLATED DOWN TO ALL THE OTHERS COURTS IN THE HIERARCHY. 7. IN THE LIGHT OF THE ABOVE JUDICIAL PRONOUNCEMENTS AND KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTIC E, WE ARE OF THE CONSIDERED VIEW THAT THE LIS BETWEEN THE PARTIES BE DECIDED ON MERITS AND NO PERSON SHOULD BE CONDEMNED UNHEARD. THEREFORE, THE DELAY ON THE PART OF THE ASSESSEE IN FILING APPEAL BEFORE LD. CIT(A) IS CONDONED AND THE APPEAL IS REMANDED BAC K TO THE FILE OF LD. CIT(A) TO DECIDE THE APPEAL FILED BY THE ASSESSEE ON MERITS. IT IS NEEDLESS HERE TO MENTION THAT BEFORE PASSING THE ORDER OF ASSESSMENT, LD. CIT(A) SHALL PROVIDE SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSE. BEFORE PARTING, WE MAY MAKE IT CLEAR THAT OUR DECISION TO RESTORE THE MATTER BACK TO THE FILE OF LD. CIT(A) SHALL IN NO WAY BE CONSTRUED AS HAVING ANY REFLECTION OR EXPRESSION ON THE MERITS OF THE DISPUTE, WHICH SHALL 7 I.T.A. NO. 7376 /MUM/201 8 SHRI RAJENDRA CHHAGANLAL JAIN, BE ADJUDICATED BY THE LD. CIT(A) INDEPENDENTLY IN ACCORDANCE WITH LAW. 8. IN THE NET RESULT, APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH FEB 2020. SD/ - SD/ - ( C. N. PRASAD ) (S. RIFAUR RAHMAN ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 28 .0 2 .2020 SR.PS . DHANANJAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI