Micro Capitals Pvt. Ltd. , Thane V. DCIT,C.C-4(3),KOLKATA, Kolkata

ITA 742/KOL/2023

AI Insights

Micro Capitals Pvt. Limited filed an appeal against the order of the Commissioner of Income Tax (Appeals)-5, Kolkata, which arose from an earlier order under section 144 of the Income Tax Act by the ITO, Ward-15(3), Kolkata. The appeal was initially time-barred by 2193 days. The Tribunal considered the reasons for the delay provided by the assessee, which included references to relevant Supreme Court and High Court judgments supporting a liberal approach to the condonation of delay. The Tribunal found merit in the assessee's arguments, noting that the delay was not a strategic decision but a result of human lapses. Consequently, the Tribunal admitted the appeal and set aside the CIT(Appeals)'s order for failing to follow mandatory procedures, remitting the case back for a fresh decision.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 129464 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-09-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 04-09-2023
• Assessment Year: 2013-2014
• Appeal Filed On: 20-07-2023
• Other Referred Cases: Senior Bhosale Estate (HUF) vs. ACIT, Vijay Kumar Ruia vs. CIT, Collector Land Acquisition Vs. Mst. Katiji & Others, N. Balakrisknan Vs. M. Krishnamurtky
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Competent authority
• Section: 144; 250

Judgement Text

ITA No.742/KOL/2023 (A.Y. 2013-14) Micro Capitals Pvt. Limited 1 IN THE INCOME TAX APPELLATE TRIBUNAL, ‘SMC’ BENCH, KOLKATA Before Shri Sanjay Garg, Jjudicial Member & Dr. Manish Borad, Accountant Member I.T.A. No. 742/KOL/2023 Assessment Year: 2013-2014 Micro Capitals Pvt. Limited,....................Appellant Shop No. 35, Sonam Shopping Center, Old Golden Nest, Phase-6, Mira Bhayander East, Thane-401105, Maharashtra [PAN: AAACY1834D] -Vs.- Deputy Commissioner of Income Tax,.......Respondent Central Circle-4(3), Kolkata, Aayakar Bhawan Poorva, 110, Shanti Pally, E.M. Bypass, Kolkata-700107 Appearances by: Shri Gopal Ram Sharma, A.R., appeared on behalf of the assessee Shri Amuldeep Kaur, JCIT, appeared on behalf of the Revenue Date of concluding the hearing : September 05, 2023 Date of pronouncing the order : September 13, 2023 O R D E R Per Dr. Manish Borad, Accountant Member:- This appeal at the instance of assessee for assessment year 2013-14 is directed against the order of ITA No.742/KOL/2023 (A.Y. 2013-14) Micro Capitals Pvt. Limited 2 ld. Commissioner of Income Tax (Appeals)-5, Kolkata dated 19.05.2017, which is arising out of the order under section 144 of the Act on 22.03.2016 framed by ld. ITO, Ward-15(3), Kolkata. 2. The present appeal has been filed before the Tribunal on 21.07.2023. The Registry has pointed out that appeal is time-barred by 2193 days. 3. During the course of hearing, ld. Counsel for the assessee referring to the contents of condonation application stated that the assessee was prevented for sufficient cause for filing the appeal within the statutory time limit. Reliance was placed on the judgment of the Hon’ble Supreme Court in the case of Senior Bhosale Estate (HUF) –vs.- ACIT reported in (2019) 112 taxmann.com 134 (SC) and the judgment of the Hon’ble Calcutta High Court in the case of Vijay Kumar Ruia –vs.- CIT reported in (2011) 15 taxmann.com 310 (Allahabad). In support of this contention for condonation of delay, relevant extract of the condonation petition is extracted below:- ITA No.742/KOL/2023 (A.Y. 2013-14) Micro Capitals Pvt. Limited 3 ITA No.742/KOL/2023 (A.Y. 2013-14) Micro Capitals Pvt. Limited 4 ITA No.742/KOL/2023 (A.Y. 2013-14) Micro Capitals Pvt. Limited 5 4. On the other hand, ld. D.R. opposed the request of ld. Counsel for the assessee for condoning the delay. Ld. D.R. contended that the assesee should be more vigilant and should have filed the appeal within the time limit provided in the Act. 5. We have heard the rival contentions, perused the relevant records placed before us and the judgments referred and relied therein. We find merit in the contention of the ld. Counsel for the assessee and are of the view that there was sufficient reason, for ITA No.742/KOL/2023 (A.Y. 2013-14) Micro Capitals Pvt. Limited 6 which the assessee was restrained from filing the appeal before this Tribunal within the statutory time limit. Sub-section 5 of Section 253 contemplates that the Tribunal may admit an appeal or permit filing of memorandum of cross- objections after expiry of relevant period, if it is satisfied that there was a sufficient cause for not presenting it within that period. This expression sufficient cause employed in the section has also been used identically in sub-section 3 of section 249 of Income Tax Act, which provides powers to the ld. Commissioner to condone the delay in filing the appeal before the Commissioner. Similarly, it has been used in section 5 of Indian Limitation Act, 1963. Whenever interpretation and construction of this expression has fallen for consideration before Honble High Court as well as before the Honble Supreme Court, then, Honble Court were unanimous in their conclusion that this expression is to be used liberally. We may make reference to the following observations of the Hon’ble Supreme court from the decision in the case of Collector Land Acquisition Vs. Mst. Katiji & Others, 1987 AIR 1353: 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 ITA No.742/KOL/2023 (A.Y. 2013-14) Micro Capitals Pvt. Limited 7 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 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 ITA No.742/KOL/2023 (A.Y. 2013-14) Micro Capitals Pvt. Limited 8 because it is capable of removing injustice and is expected to do so. 6. Similarly, we would like to make reference to authoritative pronouncement of Honble Supreme Court in the case of N. Balakrisknan Vs. M. Krishnamurtky (supra). It reads as under: “Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi lain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn ITA No.742/KOL/2023 (A.Y. 2013-14) Micro Capitals Pvt. Limited 9 down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss”. 7. We do not deem it necessary to re-cite or recapitulate the proposition laid down in other decisions. It is suffice to say that the Honble Courts are unanimous in their approach to propound that whenever the reasons assigned by an applicant for explaining the condonation of delay, then such reasons are to be construed with a justice oriented approach. 8. In the light of the above, we are of the view that while making this appeal time barred, the assessee will not gain anything. The delay has not been adopted by the assessee as a strategy to litigate with the Revenue. The delay is the result of human lapses and we find merit in the contention of the ld. Counsel for the assessee and are of the view that there was sufficient reason, which the assessee was restrained from filing the appeal before this Tribunal within the statutory time limit. Therefore, in the interest of justice, we condone the said delay of 2193 days and admit the appeal for adjudication on merit. ITA No.742/KOL/2023 (A.Y. 2013-14) Micro Capitals Pvt. Limited 10 9. On due consideration of the above facts and circumstances, we are of the view that sub-section (6) of section 250 contemplates that ld. CIT(Appeals) would state the points in dispute and thereafter record reasons in support of her conclusion on those points. A perusal of the impugned order would reveal that this mandatory procedure has not been followed by the ld. CIT(Appeals). Hence, the impugned order is not sustainable, and is set aside. The issues agitated by the assessee in the grounds of appeal extracted supra are remitted back to the ld. CIT(Appeals) for fresh adjudication on merit after providing assessee sufficient opportunity of being heard. The ld. Assessing Office having jurisdiction over the assessee would ensure the transmission of this record to the competent authority for allocation of this appeal to CIT(Appeals) through alleged National Faceless Disposal of the appeal. 10. In the result, the appeal of the assessee is treated as allowed for statistical purposes. Order pronounced in the open Court on 13 th September, 2023. Sd/- Sd/- (Sanjay Garg) (Manish Borad) Judicial Member Accountant Member Kolkata, the 13 th day of September, 2023 Copies to :(1) Micro Capitals Pvt. Limited, Shop No. 35, Sonam Shopping Center, Old Golden Nest, Phase-6, Mira Bhayander East, Thane-401105, Maharashtra ITA No.742/KOL/2023 (A.Y. 2013-14) Micro Capitals Pvt. Limited 11 (2) Deputy Commissioner of Income Tax, Central Circle-4(3), Kolkata, Aayakar Bhawan Poorva, 110, Shanti Pally, E.M. Bypass, Kolkata-700107 (3) Commissioner of Income Tax (Appeals)-5, Kolkata; (4) Commissioner of Income Tax- ; (5) The Departmental Representative (6) Guard File TRUE COPY By order Assistant Registrar, Income Tax Appellate Tribunal, Kolkata Benches, Kolkata Laha/Sr. P.S.