M/s Sham Fashion Mall, Chandigarh V. ACIT, C-4(1), Chandigarh

ITA 780/CHANDI/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 2140 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 9 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-02-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 17-05-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Period of limitation; Time period of passing order; Condonation of delay
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI N.K. SAINI, VICE PRESIDENT& SHRIR.L NEGI, JUDICIAL MEMBER ITA NO.780/CHANDI/2019 / ASSESSMENT YEAR : 2010-11 M/S SHAM FASHION MALL, SCO 168-169, SECTOR 34-A, CHANDIGARH THE ACIT, CIRCLE 4(1), CHANDIGARH ./PAN NO: ABCFS0250R / APPELLANT /RESPONDENT HEARING THROUGH VIDEO CONFERENCING /ASSESSEE BY : SHRI TEJ MOHAN SINGH, ADVOCATE / REVENUE BY : SHRI ASHOK KUMAR, ADDL CIT /DATE OF HEARING : 17.02.2021 / DATE OF PRONOUNCEMENT : 23.02.2021 / ORDER PER R.L. NEGI JUDICIAL MEMBER: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST T HE ORDER DATED 06.02.2019 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)- 2,CHANDIGARH, [(FOR SHORT THE CIT(A)] FOR THE ASS ESSMENT YEAR 2010-11, WHEREBY THE LD. CIT(A) HAS DISMISSED THE APPEAL FIL ED BY THE ASSESSEE AGAINST THE ASSESSMENT ORDER PASSED U/S 143(3) OF T HE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT'). 2. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED BEFORE US THAT THE ASSESSEE WANTS TO SETTLE ITS DISPUTE UNDER THE PROVISIONS OF VIVAD SE VISWAS SCHEME 2020, HOWEVER, SINCE THERE IS DELAY OF 3 DAYS IN FILING APPEAL, THE ASSESSEE HAS FILED AN APPLICA TION FOR CONDONATION OF ITA NO. 780 -CHD-2019- M/S SHAM FASHION MALL, CHANDIGARH 2 DELAY DULY SUPPORTED BY AN AFFIDAVIT. THE LD. COUNS EL FURTHER SUBMITTED THAT AS PER THE CBDT CIRCULAR NO. 21/2020 DATED 4.1 2.2020, THE ASSESSEE IS ELIGIBLE TO OPT FOR THE SCHEME IF THE APPELLATE AUTHORITY CONDONES THE DELAY IN FILING OF THE APPEALS. 3. THE LD. COUNSEL FURTHER SUBMITTED THAT SHRI DAV INDER SINGH PARTNER OF THE FIRM, WHO USED TO LOOK AFTER THE AFF AIRS OF THE FIRM, COULD NOT ATTEND THE OFFICE OF THE FIRM DURING THE RELEVA NT PERIOD DUE TO ILLNESS OF HIS AGED MOTHER. WHEN HE RESUMED HIS DUTIES, THE LIMITATION PERIOD FOR FILING THE APPEAL HAD ALREADY BEEN EXPIRED. THE LD. COUNSEL FURTHER SUBMITTED THAT THE DELAY WAS NOT CAUSED DUE TO NEGL IGENCE OR INACTION ON THE PART OF THE ASSESSEE BUT WAS CAUSED DUE TO A BONA FIDE REASON. IN VIEW OF THE AFORESAID FACTS AND CIRCUMSTANCES OF TH E MATTER, THE LD. COUNSEL SUBMITTED THAT THE APPLICATION OF THE ASSES SEE MAY BE ALLOWED AND THE DELAY OF THREE DAYS IN FILING THE PRESENT A PPEAL MAY BE CONDONED AND THE APPEAL OF THE ASSESSEE MAY BE DISMISSED AS WITHDRAWN SO THAT THE ASSESSEE MAY AVAIL THE BENEFIT OF PROVISIONS UN DER VIVAD SE VISWAS ACT, 2020. 4. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESEN TATIVE OPPOSED THE APPLICATION ON THE GROUND THAT THERE WAS NO SUF FICIENT CAUSE WHICH PREVENTED THE ASSESSEE TO FILE THE PRESENT APPEAL W ITHIN LIMITATION PERIOD. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL ON RECORD. AS STATED BY THE LD. COUNSEL, SHRI DAVIN DER SINGH, PARTNER OF ITA NO. 780 -CHD-2019- M/S SHAM FASHION MALL, CHANDIGARH 3 THE ASSESSEE FIRM COULD NOT FILE THE PRESENT APPEAL WITHIN LIMITATION PERIOD AS HE REMAINED BUSY IN CONNECTION WITH THE T REATMENT OF HIS AGED MOTHER. MR. DAVINDER HAS SWORN AN AFFIDAVIT IN SUPP ORT OF THE CONTENTION OF THE ASSESSEE FIRM. 6. THE HON'BLE SUPREME COURT IN THE CASE OF COLLECTOR LAND ACQUISITION VS MST.KATIJI & ORS (1987) AIR 1353, HAS LAID DOWN THE PRINCIPLES TO BE FOLLOWED WHILE DEALING WITH THE IS SUE OF CONDONATION OF DELAY WHICH ARE AS FOLLOWS: - 1. ORDINARILY A LITIGANT DOES NOT STAND TO BENEFI T BY LODGING AN APPEAL LATE. 2. REFUSING TO CONDONE DELAY CAN RESULT IN A MERIT ORIOUS MATTER BEING THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTI CE BEING DEFEATED. AS AGAINST THIS WHEN DELAY IS CODONED THE HIGHEST THAT CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERITS A FTER HEARING THE PARTIES. 3. 'EVERY DAY'S DELAY MUST BE EXPLAINED' DOES NOT MEAN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOU R'S DELAY, EVERY SECOND'S DELAY? THE DOCTRINE MUST BE APPLIED IN A RATIONAL COMMON SENSE PRAGMATIC MANNER. 4. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDER ATIONS ARE PITTED AGAINST EACH OTHER, CAUSE OF SUBSTANTIAL JUSTICE DE SERVES TO BE PREFERRED FOR THE OTHER SIDE CANNOT CLAIM TO HAVE V ESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON-DELIBERATE DE LAY. 5. THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONE D DELIBERATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE, OR ON ACCOUNT OF MA LA 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 BU T BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. 7. IN THE PRESENT CASE, WE DO NOT FIND ANY INACTION OR NEGLIGENCE ON THE PART OF THE ASSESSEE. IN OUR CONSIDERED VIEW, T HE ASSESSEE HAD A ITA NO. 780 -CHD-2019- M/S SHAM FASHION MALL, CHANDIGARH 4 SUFFICIENT CAUSE WHICH PREVENTED IT FROM FILING THE PRESENT APPEAL WITHIN THE LIMITATION PERIOD. NO PREJUDICE IS GOING TO BE CAUSED TO THE REVENUE IN CASE THE DELAY IS CONDONED. HENCE, IN THE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE PRINCIPLES OF LAW LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF COLLECTOR LAND ACQUISITION VS MST. KATIJI & ORS (SUPRA), WE CONDONE THE DELAY OF 3 DAYS IN FILING THE PRESENT APPEAL AND DISMISS THE APPEAL OF THE ASSESS EE AS WITHDRAWN WITH A LIBERTY TO GET THE APPEAL RESTORED BY FILING M.A., IN CASE THE ISSUES ARE NOT SETTLED UNDER VIVAD SE VISWAS SCHEME . 8. IN THE RESULT, APPEALS FILED BY THE ASSESSEE ARE DISMISSED AS WITHDRAWN. ORDER PRONOUNCED ON 23.02.2021. SD/- SD/- (N. K. SAINI) (R.L. NEGI) VICE PRESIDENT JUDICIAL MEMBER DATED: . . / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. / CIT 4. ( )/ THE CIT(A) 5. , , / DR, ITAT, CHANDIGARH 6. / GUARD FILE / BY ORDER, / ASSISTANT REGISTRAR