T. Kishan, Secunderabad V. ACIT, Central Circle-2, Hyderabad

ITSSA 25/HYD/2011

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7507 (ITAT-HYDERABAD)
• Duration Of Justice: 8 month(s) 15 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 18-05-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 02-09-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V SRINIVAS
• Assessee Lawyers: K C DEVADAS
• Keywords: Search and seizure; Charitable institution; Opportunity of being heard; Principle of natural justice; Reasonable cause; Block assessment; Right to appeal; Condonation of delay
• Section: 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER IT(SS)A NO. 23/HYD/2011 IT(SS)A NO. 25/HYD/2011 (BLOCK PERIOD OF A.YS. 1996-97 TO 2002-03) SHRI T.KISHAN, SECUNDERABAD. PAN: ABIPT3934D V/S. ASSTT. COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE 2, HYDERABAD. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI K.C. DEVADAS RESPONDENT BY: SHRI V. SRINIVAS DATE OF HEARING: 21.03.2012 DATE OF PRONOUNCEMENT: 18.5.2012 O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: THESE TWO APPEALS BY THE ASSESSEE ARE DIRECTED AGA INST THE COMMON ORDER OF THE CIT(A)I, HYDERABAD DATED 23.8. 2004 FOR THE BLOCK PERIOD FROM 1996-97 TO 2002-03. SINCE COMMON ISSUES ARE INVOLVED, THESE APPEALS ARE CLUBBED TOGETHER, HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. FACTS LEADING TO THE FILING OF THE PRESENT APPEALS IN BRIEF ARE THAT THERE WERE SEARCH AND SEIZURE OPERATIONS ON TH E PREMISES OF THE ASSESSEE ON 5.2.2002, IN THE COURSE OF WHICH INCRIM INATING DOCUMENTS AND CASH OF RS. 1,60,000 WERE SEIZED. AS SESSEE THEREAFTER FILED BLOCK RETURN IN FORM NO. 2B ON 22. 7.2002 ADMITTING AN UNDISCLOSED INCOME OF RS. 23,15,677, ON WHICH TA X PAYABLE WAS WORKED OUT AT RS. 13,84,406. AS AGAINST THIS, THE ASSESSING OFFICER COMPLETED BLOCK ASSESSMENT DETERMINING THE TOTAL UN DISCLOSED INCOME OF THE ASSESSEE FOR THE BLOCK PERIOD AT RS. 3,32,78,152, VIDE ORDER OF ASSESSMENT DATED 27.2.2004 PASSED UNDER S. 158BC(C) OF THE ACT. IT(SS)A NO. 23 & 25 /HYD/11 SHRI T. KISH AN, SECUNDERABAD. .================== 2 3. AGGRIEVED BY THE BLOCK ASSESSMENT MADE AS ABOVE, AS SESSEE PREFERRED APPEAL BEFORE THE CIT(A). THE CIT(A), VI DE HIS ORDER DATED 23.8.2004, TAKING NOTE OF THE FACT THAT THE ASSESSE E HAS PAID TAX OF RS. 30,000 ONLY ON 10.4.2003, OBSERVED THAT THERE W AS DEFAULT ON THE PART OF THE ASSESSEE IN PAYING TAX ON THE RETURNED UNDISCLOSED INCOME. HE ACCORDINGLY ISSUED A SHOW-CAUSE NOTICE INVITING ATTENTION OF THE ASSESSEE TO SUB-SECTION (4) OF S. 249 OF THE ACT, AS PER WHICH NO APPEAL CAN BE ADMITTED UNLESS THE FULL AMOUNT OF ADMITTED TAX IS PAID AT THE TIME OF FILING AN APPEA L. THE ASSESSEE IN RESPONSE APPEARED IN PERSON ON 13.8.2004, AND STATE D THAT FULL AMOUNT OF ADMITTED TAX HAS NOT BEEN PAID TILL THEN. THE CIT(A) OBSERVED THAT EVEN AFTER THE ADJUSTMENT OF SEIZED C ASH OF RS. 1,60,000 TOWARDS ADMITTED TAX, THE AGGREGATE PAYMEN T OF TAX WORKS OUT TO RS. 1,90,000 ONLY AS AGAINST TAX DUE ON ADMI TTED UNDISCLOSED INCOME RETURNED OF RS. 13,84,406. IN THE CIRCUMSTA NCES, AFTER REFERRING TO THE BOARD CIRCULAR NO. 559 DATED 4 TH MAY, 1990, WHEREIN THE SCOPE AND EFFECT OF SUB-SECTION (4) OF S.249 HA S BEEN EXPLAINED, THE CIT(A) CONCLUDED THAT THE APPEAL OF THE ASSESSE E CANNOT BE ADMITTED. HE ACCORDINGLY DISMISSED THE SAME IN LIM INE BY THE IMPUGNED ORDER DATED 23.8.2004. 4. AGGRIEVED BY THE ABOVE ORDER OF THE CIT(A), ASSESSE E FILED APPEAL IT(SS)A NO.25/HYD/11 BEFORE US, ON 2.9.2011, WITH A DELAY OF 2491 DAYS. 5. IN THE MEANWHILE, THE ASSESSEE FILED A PETITION DAT ED 14.3.2011 BEFORE THE CIT(A), INFORMING THE PAYMENT OF ADMITTE D TAX FOR THE BLOCK PERIOD ON 17.2.2011, AND EXPLAINING THE REASO NS FOR THE DELAY IN THE PAYMENT OF ADMITTED TAX, PRAYED FOR RESTORAT ION OF THE APPEAL AND FOR DISPOSING OF THE SAME ON MERITS. THE CIT(A ), VIDE HER LETTER DATED 14.7.2011, REJECTED THIS PETITION OF THE ASS ESSEE OBSERVING AS FOLLOWS- IT(SS)A NO. 23 & 25 /HYD/11 SHRI T. KISH AN, SECUNDERABAD. .================== 3 2.0 THE ORDER OF THE CIT(A) HAS BEEN PASSED AFTER DUE CONSIDERATION OF THE FACTS OF THE CASE. THE RESTORA TION OF THE APPEAL, AFTER IT HAS BEEN DISMISSED FOR VIOLATI ON OF SEC. 249(4) IS NOT A RECTIFIABLE ERROR APPARENT FORM REC ORD. THERE IS NO PROVISIONS FOR RESTORATION OF APPEAL, A S IS BEING SOUGHT BY THE ASSESSEE. 6. AGGRIEVED BY THE ABOVE COMMUNICATION OF THE CIT(A) REJECTING THE PETITION OF THE ASSESSEE SEEKING RESTORATION OF APPEAL AND ADJUDICATION OF THE SAME ON MERITS, ASSESSEE PREFER RED THE OTHER APPEAL, IT(SS)A NO. 23/HYD/2011 BEFORE US. 7. IN THE APPEAL WHICH IS DIRECTED AGAINST THE ORDER O F THE CIT(A) PASSED UNDER S.250 OF THE ACT DATED 23.8.2004, VIZ. IT(SS)A. NO. 25/HYD/2011, WHICH IS FILED WITH A DELAY OF 2491 D AYS, GROUNDS TAKEN BY THE ASSESSEE ARE AS FOLLOWS- 1. THE ORDER OF THE COMMISSIONER OF INCOME- TAX(APPEALS)-I, HYDERABAD IN DISMISSING THE APPEAL IN LIMINE AS THE ADMITTED TAX WAS NOT PAID BY THE APPELLANT IS WHOLLY UNSUSTAINABLE IN LAW AND ON FAC TS. 2. THE LEARNED CIT(A)-I HYDERABAD FAILED TO NOTE TH AT THE SHORTFALL IN PAYMENT OF ADMITTED TAX WAS DUE TO REASONS BEYOND THE CONTROL OF THE APPELLANT AND THEREFORE, THE CIT(A)-I, HYDERABAD, ERRED IN DISMIS SING THE APPEAL IN LIMINE. 3. AY OTHER GROUND OR GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING. 8. AT THE OUTSET, WE MAY NOTE THAT THE ASSESSEE HAS FI LED A PETITION IN THE FORM OF AN AFFIDAVIT SEEKING CONDON ATION OF DELAY OF AS MUCH AS 2491 DAYS, WHICH HAS OCCURRED IN THE FILING OF THIS APPEAL. THE SAID AFFIDAVIT ELABORATELY DISCUSSED THE REASON S FOR THE DELAY IN THE FILING OF THE APPEAL, AND STATED INTER ALIA THA T THE ASSESSEE WAS UNDER A BONA FIDE IMPRESSION THAT THE APPEAL WOULD BE RESTORED ON THE FILE OF THE CIT(A), ON THE BASIS OF HIS APPLICA TION DATED 17.3.2011 SEEKING SUCH RESTORATION AND DISPOSAL ON MERITS, SU BMITTED AFTER PAYMENT OF ADMITTED TAXES, AND IT IS ONLY WHEN SUCH A THING HAS NOT IT(SS)A NO. 23 & 25 /HYD/11 SHRI T. KISH AN, SECUNDERABAD. .================== 4 HAPPENED, THAT HE HAS FILED THE PRESENT APPEAL. HE HAS ALSO MENTIONED IN GREAT DETAIL THE PERSONAL SUFFERING AN D MENTAL AGONY WHICH HE SUFFERED DURING THE YEARS OF DELAY INVOLVE D. HE SUBMITTED THAT THERE WAS REASONABLE CAUSE FOR THE ASSESSEE FO R NOT PAYING THE ADMITTED TAX, WHICH IS ELABORATELY EXPLAINED IN THE AFFIDAVIT SEEKING CONDONATION OF DELAY. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE IS, IN THAT PROCESS, A REASONA BLE CAUSE FOR DELAY IN FILING OF THE APPEAL BY THE ASSESSEE, AND AS SUC H THE SAME MAY BE CONDONED AND THE APPEAL BE DISPOSED OF ON MERITS. HE SUBMITTED THAT IF THE DELAY IS NOT CONDONED, THE ASSESSEE WOU LD NOT HAVE ANY OPPORTUNITY TO PUT FORTH ITS CASE ON MERITS IN THE FACE OF HUGE TAX DEMAND THRUST ON HIM AND THERE WOULD BE GROSS VIOLA TION OF THE PRINCIPLES OF NATURAL JUSTICE. 9. WITH REGARD TO THE OTHER APPEAL, VIZ. IT(SS)A NO. 2 3/HYD/2011, WHICH IS FILED AGAINST THE COMMUNICATION OF THE CIT (A) DECLINING TO RESTORE THE APPEAL AND ADJUDICATE UPON THE SAME ON MERITS, IN VIEW OF THE FACT THAT THE ASSESSEE HAS PAID THE ADMITTED TAXES, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED, THAT EVEN THOU GH THERE IS NO MISTAKE APPARENT ON RECORD IN THE ORDER OF THE CIT( A) DATED 23.8.2004, WHICH WAS PASSED IN TERMS OF S.249(4) OF THE ACT, DISMISSING THE APPEAL IN LIMINE ON ACCOUNT OF NON-P AYMENT OF ADMITTED TAXES, SINCE THE CIT(A) HAS NOT ADJUDICATE D UPON THE GROUNDS URGED BY THE ASSESSEE IN THE APPEAL, INASMU CH AS IT WAS DISMISSED IN LIMINE, SUCH AN APPLICATION OF THE ASS ESSEE FOR RESTORING THE APPEAL AND ADJUDICATING THE SAME ON MERITS IS A DMISSIBLE, AND THE CIT(A) WAS NOT JUSTIFIED IN REJECTING THE SAME. IT IS SUBMITTED THAT THERE WAS A REASONABLE CAUSE FOR THE NON-PAYME NT OF ADMITTED TAXES BY THE ASSESSEE. THE APPEAL OF THE ASSESSEE B EFORE THE CIT(A) REMAINED DEFECTIVE ON ACCOUNT OF NON-PAYMENT OF TAX ES. THAT IS ONLY A CURABLE DEFECT, AND AS AND WHEN THE DEFECT IS CUR ED, THE ASSESSEE IS ENTITLED TO APPROACH THE APPELLATE AUTHORITY TO ADM IT THE APPEAL AND DISPOSE OF THE SAME ON MERITS. THAT BEING SO, ONCE THE DEFECT IS IT(SS)A NO. 23 & 25 /HYD/11 SHRI T. KISH AN, SECUNDERABAD. .================== 5 CURED BY MAKING PAYMENT OF ADMITTED TAXES, THE ASSE SSEE IS ENTITLED FOR DISPOSAL OF ITS APPEAL ON MERITS, SUBJECT TO CO NDONATION OF DELAY BY THE CIT(A), IN CURING THE DEFECT BY THE ASSESSEE . 10. IN SUPPORT OF THE ABOVE CONTENTIONS, LEARNED COUNSE L FOR THE ASSESSEE PLACED RELIANCE ON THE FOLLOWING DECISIONS - (A) IMPROVEMENT TRUST V/S. UJAGAR SINGH(SC) (B) POONJA ARCADE V/S. ACIT (326 ITR 123)-KAR. (C) SRINIVASA CHARITABLE TRUST V/S. DCIT (280 ITR 357)- MAD. (D) AUTO CENTRE V/S. STATE OF UTTAR PRADESH (278 ITR 29 1)-ALL. (E) GANGA SAHAI RAMSWARUP V/S. ITAT (271 ITR 512)-ALL. (F) CIT V/S. ORISSA CONCRETE AND ALLIED INDUSTRIES LTD. (264 ITR 186)-CAL. (G) VEDA BAI @ VAIJAYANATABAI BABURAO PATIL V/S. SAHNTA RAM BABURAO (253 ITR 798)-SC (H) VENKATARDRI TRADERS LTD. V/S. CIT(248 ITR 681)-MAD . (I) VOLTAS LTD. V/S. DY. CIT (241 ITR 471)-AP (J) SOCIETY OF DEVINE PROVIDENCE (235 ITR 339)-MP (K) CIT V/S. SHANMUGHAVEL NADAR(153 ITR 596)-MAD. (L) ROYAL AIRWAYS LTD. V/S. ADDITIONAL DIRECTOR OF INCO ME-TAX(98 ITD 259)-DEL. (M) ALL INDIA PRIMARY TEACHERS FEDERATION V/S. DIT(EXEM PTION)(93 TTJ 155)-DEL. (N) KAMAL JEWELLERS V/S. ITO (55 ITD 451)-DEL. (O) KADUR VIDHYA PRATISHTANA (15 SOT 75)-BANG (P) ANGELA I KAZI V/S. ITO (10 SOT 139)-BOM. (Q) COLLECTOR LAND ACQUISITION V/S. KATIJI (167 ITR 471 ) (SC) (R) RAMESHWARI DEVI AND ANOTHER V/S. SANSAR CHAND AND O THERS (AIR 1986 HIMACHAL PRADESH 67) (S) ORDER OF HYDERABAD BENCH B OF THE TRIBUNAL DATED 13.10.2011 IN CHIDA SPINNING MILLS V/S. ACIT(ITA NO.1068/HYD/2003 ) 11. RELIANCE IS ALSO PLACED ON THE DECISION OF HYDERABA D BENCH A OF THIS TRIBUNAL DATED 5.6.2009 IN LAVU EDUCATIONAL SOCIETY V/S. CIT VIJAYAWADA (IN ITA NO. 648/ HYD/2009). 12. THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE OTHE R HAND, STRONGLY SUPPORTED THE APPELLATE ORDER OF THE CIT(A ) AND SUBMITTED THAT PAYMENT OF ADMITTED TAX IS MANDATORY AND THER E IS NO VIOLATION OF PRINCIPLES OF NATURAL JUSTICE ON ACCOUNT OF DISM ISSAL OF APPEAL IN LIMINE IN TERMS OF S.249(4) OF THE ACT, IT(SS)A NO. 23 & 25 /HYD/11 SHRI T. KISH AN, SECUNDERABAD. .================== 6 13. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSE D THE ORDERS OF THE LOWER AUTHORITIES IMPUGNED IN THESE A PPEALS. AS FAR AS THE DELAY IN FILING THE APPEAL BY 2491 DAYS AGAINST THE APPELLATE ORDER OF THE CIT(A), VIZ. IT(SS)A NO. 25/HYD/2011 I S CONCERNED, ONE HAS TO ADMIT THAT THE DELAY INVOLVED IS INORDINATE AND NOT MARGINAL. THE DELAY COULD NOT HAVE BEEN MITIGATED TO ANY GREA T EXTENT, SINCE THE ADMITTED TAXES ON THE RETURNED INCOME WAS PAID ONLY ON 17.2.2011, AND TILL SUCH PAYMENT, THE APPEAL BEFOR E THE CIT(A) COULD NOT HAVE BEEN SOUGHT TO BE RESTORED ON THE GROUND O F HAVING CURED THE DEFECT. PERSONAL PROBLEMS OR FINANCIAL CONSTRAI NTS PER SE COULD NOT CONSTITUTE A REASONABLE CAUSE FOR NON-PAYMENT O F ADMITTED TAXES, AND THE APPELLATE AUTHORITY CANNOT BE EXPECTED TO K EEP THE APPEAL PENDING ADJUDICATION ON MERITS INDEFINITELY, IN THE HOPE OF THE DEFECT BEING CURED BY THE ASSESSEE AT HIS OWN CONVENIENCE AFTER OVERCOMING ALL HIS PERSONAL DIFFICULTIES. IT IS SETTLED POSIT ION OF LAW THAT IT IS ONLY MARGINAL DELAYS THAT CAN BE CONDONED, AND NOT INORD INATE DELAYS RUNNING INTO SEVERAL YEARS. WE MAY AT THIS JUNCTUR E, REFER TO THE THIRD MEMBER DECISION OF TRIBUNAL (CHENNAI) IN THE CASE OF JT. CIT V/S. TRACTORS & FARMS LTD. ( 104 ITD 149)-TM, WHERE IN DRAWING OUT A DISTINCTION BETWEEN NORMAL DELAY AND INORDINATE D ELAY, IT HAS BEEN OBSERVED, VIDE HEAD-NOTE ON PAGE 150 OF THE REPORTS (104 ITD) AS FOLLOWS- A DISTINCTION MUST BE MADE BETWEEN A CASE WHERE TH E DELAY IS INORDINATE AND A CASE WHERE THE DELAY IS O F A FEW DAYS. WHEREAS IN THE FORMER CASE, THE CONSIDERATIO N OF PREJUDICE TO THE OTHER SIDE WILL BE A RELEVANT FAC TOR, SO THE CASE CALLS FOR MORE CAUTIOUS APPROACH, IN THE LATTE R CASE, NO SUCH CONSIDERATION MAY ARISE AND SUCH A CASE DESERVES A LIBERAL APPROACH. NO HARD AND FAST RULE CAN BE LAID DOWN IN THIS REGARD. THE COURT HAS TO EXERCISE THE DISCRETION ON THE FACTS OF EACH CASE, KEEPING IN MI ND THAT IN CONSIDERING THE EXPRESSION SUFFICIENT CAUSE, T HE PRINCIPLE OF ADVANCING SUBSTANTIAL JUSTICE IS OF PR IME IMPORTANCE. IT(SS)A NO. 23 & 25 /HYD/11 SHRI T. KISH AN, SECUNDERABAD. .================== 7 14. THAT BEING SO, THE CASE-LAW RELIED BEFORE US BY THE LEARNED COUNSEL FOR THE ASSESSEE HAS NO APPLICATION TO THE FACTS OF THE PRESENT CASE. FURTHER WE MAKE IT CLEAR THAT THERE IS NO HAR D AND FAST RULE WHICH CAN BE LAID DOWN IN THE MATTER OF CONDONATION OF DELAY AND COURTS SHOULD ADOPT A PRAGMATIC APPROACH AND DISCRE TION ON THE FACTS OF EACH CASE KEEPING IN MIND THAT IN CONSIDER ING THE EXPRESSION SUFFICIENT CAUSE THE PRINCIPLES OF ADVANCING SUBS TANTIAL JUSTICE IS OF PRIME IMPORTANCE AND THE EXPRESSION SUFFICIENT CAU SE SHOULD RECEIVE A LIBERAL CONSTRUCTION. A LIBERAL VIEW OUGHT TO BE TAKEN IN TERMS OF DELAY OF FEW DAYS. HOWEVER, WHEN THERE IS INORDINA TE DELAY, ONE SHOULD BE VERY CAUTIOUS WHILE CONDONING THE DELAY. THE DELAY OF 2491 CANNOT BE CONDONED SIMPLY BECAUSE THE ASSESSEE S CASE IS HARD AND CALLS FOR SYMPATHY OR MERELY OUT OF BENEVOLENCE TO THE PARTY SEEKING RELIEF. IN GRANTING THE INDULGENCE AND CON DONING THE DELAY, IT MUST BE PROVED BEYOND THE SHADOW OF DOUBT THAT THE ASSESSEE WAS DILIGENT AND WAS NOT GUILTY OF NEGLIGENCE WHATSOEVE R. THE SUFFICIENT CAUSE WITHIN THE CONTEMPLATION OF THE LIMITATION PR OVISION MUST BE A CAUSE WHICH IS BEYOND THE CONTROL OF THE PARTY INVO KING THE AID OF THE PROVISIONS. THE SUPREME COURT IN THE CASE OF RAMLA L V. REWA COALFIELDS LTD., AIR 1962 SC 361 HAS HELD THAT THE CAUSE FOR THE DELAY IN FILING THE APPEAL WHICH BY DUE CARE AND AT TENTION COULD HAVE BEEN AVOIDED CANNOT BE A SUFFICIENT CAUSE WITHIN TH E MEANING OF THE LIMITATION PROVISION. WHERE NO NEGLIGENCE, NOR INA CTION, OR WANT OF BONA FIDES CAN BE IMPUTED TO THE ASSESSEE A LIBERAL CONSTRUCTION OF THE PROVISIONS HAS TO BE MADE IN ORDER TO ADVANCE S UBSTANTIAL JUSTICE. SEEKERS OF JUSTICE MUST COME WITH CLEAN H ANDS. IN THE PRESENT CASE, THE REASONS ADVANCED BY THE ASSESSEE DO NOT SHOW ANY GOOD AND SUFFICIENT REASON TO CONDONE THE DELAYS. THE DELAYS ARE NOT PROPERLY EXPLAINED BY THE ASSESSEE. THERE IS NO RE ASON FOR CONDONING SUCH DELAY IN THIS CASE. THE DELAY IS NOTHING BUT NEGLIGENCE AND INACTION OF THE ASSESSEE WHICH COULD HAVE BEEN VERY WELL AVOIDED BY THE EXERCISE OF DUE CARE AND ATTENTION. THERE EXIS TS NO SUFFICIENT OR GOOD REASON FOR CONDONING INORDINATE DELAYS OF MORE THAN 2491 DAYS IT(SS)A NO. 23 & 25 /HYD/11 SHRI T. KISH AN, SECUNDERABAD. .================== 8 IN FILING APPEAL BEFORE US. ACCORDINGLY, THIS APPE AL IS DISMISSED AS BARRED BY LIMITATION. 15. WE ACCORDINGLY DECLINE TO CONDONE THE DELAY OF 2491 DAYS, AND DISMISS THIS APPEAL OF THE ASSESSEE AS BARRED BY LI MITATION. 16. NOW WE WILL TAKE UP IT(SS)A NO. 23/HYD/2011 FOR ADJUDICATION. THIS APPEAL IS AGAINST THE COMMUNICA TION OF THE CIT(A) DATED 14.7.2011, DECLINING TO RESTORE THE APPEAL OF THE ASSESSEE, AND THEREBY REJECTING THE PETITION OF THE ASSESSEE. IN THIS CASE THE ASSESSEE HAD FILED AN APPEAL ON 12.4.2004 AGAINST T HE BLOCK ASSESSMENT DATED 27.02.2004 PASSED U/S. 158BC OF TH E IT ACT. THE SAME WAS DISMISSED BY THE CIT(A) IN LIMINE AS THE A DMITTED TAX WAS NOT PAID. THE ASSESSEE VIDE LETTER DATED 14.3.2011 REQUESTED THE CIT(A) TO RESTORE THE APPEAL AS THE ADMITTED TAX HA S BEEN PAID BY THAT TIME. HOWEVER, THE CIT(A) REFUSED THE SAME BY HOLDING THAT THERE IS NO PROVISION UNDER THE ACT TO RESTORE THE APPEAL WHICH IS DISMISSED FOR VIOLATION OF PROVISIONS OF SECTION 24 9(4) OF THE I.T. ACT. AGAINST THIS THE ASSESSEE IS IN APPEAL BEFORE US. 17. IT IS AN ADMITTED FACT THAT AS ON THE DATE OF PASSI NG OF THE IMPUGNED ORDER DATED 23.8.2004 BY THE CIT(A), ADMIT TED TAX WAS NOT PAID AND THE APPEAL WAS DEFECTIVE IN TERMS OF S.249 (4) OF THE ACT. THAT BEING SO, THE CIT(A) DISMISSED THE APPEAL AS N ON-MAINTAINABLE. HOWEVER, AT THE TIME OF FILING THE PETITION BEFORE THE CIT(A) ON 14.3.2011 FOR RESTORATION OF THE APPEAL, THE ADMITT ED TAX HAS BEEN PAID. BEFORE US, THE LEARNED AR PRAYED FOR RESTORA TION OF APPEAL AS THE ADMITTED TAX HAS BEEN PAID AND SOUGHT DIRECTION FROM US TO THE CIT(A) TO DECIDE THE APPEAL ON MERIT. 18. THE DR SUBMITTED THAT THERE IS NO MISTAKE APPARENT ON RECORD IN THE ORDER OF THE CIT(A) DATED 23.8.2004, WARRANT ING RECALL OF THE SAID ORDER. THERE IS NO APPEALABLE ORDER IN THIS C ASE. IT(SS)A NO. 23 & 25 /HYD/11 SHRI T. KISH AN, SECUNDERABAD. .================== 9 19. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS. FROM THE PERUSAL OF RECORD AND ON CONSIDERATION OF RESPECTIV E ARGUMENTS, FOLLOWING POINTS HAVE EMERGED OUT FOR OUR ADJUDICAT ION: (1) WHETHER THE TRIBUNAL HAS POWERS UNDER SECTION 254(1) TO GIVE A FINDING THAT, AN APPEAL FILED IN VIOLATIO N OF SECTION 249(4) WOULD BE TERMED AS DEFECTIVE ONE AND THE MOM ENT THE DEFECT IS CURED BY MAKING PAYMENT OF AGREED TAX, TH E APPEAL CAN BE DECIDED ON MERIT SUBJECT TO LIMITATION PROVI DED IN SECTION 249(2) AND ITS CONDONATION THEREOF AS PER S ECTION 249(3). (2) WHETHER NON-AVAILABILITY OF FUNDS FOR MAKING P AYMENT OF AGREED TAXES WITH THE ASSESSEE COULD BE CONSIDERED AS A REASONABLE CAUSE FOR FILING DEFECTIVE APPEALS IN VI OLATION OF SECTION 249(4) OF THE ACT. (3) WHETHER SUFFICIENT REASON EXISTS FOR CURING TH IS DEFECT AFTER EXPIRY OF LIMITATION PROVIDED IN SECTION 249( 2) OF THE ACT. 20. IT IS UNDISPUTED PROPOSITION OF LAW THAT APPEAL IS A CONTINUATION OF THE ORIGINAL PROCEEDINGS AND RIGHT OF APPEAL IS NOT AN INHERENT RIGHT BUT IT IS A STATUTORY RIGHT. IT IS O PEN TO THE LEGISLATURE TO GIVE OR NOT TO GIVE A RIGHT OF APPEAL AGAINST DE CISIONS MADE BY AUTHORITIES. THE RIGHT OF APPEAL WHEREVER CONFERRED BY STATUTE HAS TO BE EXERCISED STRICTLY IN CONFORMITY WITH THE STATUT ORY PROVISIONS, WHICH CREATE IT. IF THE STATUTE PUT ANY RESTRICTION S THEN, SUCH RIGHT WOULD BE AVAILABLE ALONG WITH SUCH RESTRICTIONS. IT IS ALSO NOT DISPUTED BEFORE US THAT ASSESSEE HAD MADE THE PAYME NT OF AGREED TAX DURING THE PENDENCY OF THESE APPEALS. BEFORE EM BARKING UPON THE JURISDICTION OF THE TRIBUNAL WHETHER THESE APPE ALS CAN BE RESTORED BACK TO THE CIT(A) OR NOT, IT IS SALUTARY TO TAKE NOTE OF SUB- SECTIONS (3) AND (4) OF SECTION 249 AND SUB-SECTION (1) OF SECTION 254 BECAUSE THESE PROVISIONS HAVE DIRECT BEARING ON THE CONTROVERSY : SECTION 249(3) : 'THE CIT(A) MAY ADMIT AN APPEAL AF TER THE EXPIRATION OF THE SAID PERIOD IF HE IS SATISFIED TH AT THE APPELLANT HAD SUFFICIENT CAUSE FOR NOT PRESENTING IT WITHIN T HAT PERIOD.' IT(SS)A NO. 23 & 25 /HYD/11 SHRI T. KISH AN, SECUNDERABAD. .================== 10 SECTION 249(4) : 'NO APPEAL UNDER THIS CHAPTER SHAL L BE ADMITTED UNLESS AT THE TIME OF FILING OF THE APPEAL ,-- (A) WHERE A RETURN HAS BEEN FILED BY THE ASSESSEE, THE ASSESSEE HAS PAID THE TAX DUE ON THE INCOME RETURNE D BY HIM; OR (B) WHERE NO RETURN HAS BEEN FILED BY THE ASSESSEE , THE ASSESSEE HAS PAID AN AMOUNT EQUAL TO THE AMOUNT OF ADVANCE TAX WHICH WAS PAYABLE BY HIM : PROVIDED THAT, IN A CASE FILLING UNDER CLAUSE (B) A ND ON AN APPLICATION MADE BY THE APPELLANT IN THIS BEHALF, T HE CIT(A) MAY, FOR ANY GOOD AND SUFFICIENT REASON TO BE RECOR DED IN WRITING, EXEMPT HIM FROM THE OPERATION OF THE PROVI SIONS OF THAT CLAUSE.' SECTION 254(1) : 'THE TRIBUNAL MAY, AFTER GIVING BO TH THE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD , PASS SUCH ORDERS THEREON AS IT THINKS FIT.' 21. FOR CONSIDERING THE POWERS OF TRIBUNAL CONTEMPLATED IN SUB- SECTION (1) OF SECTION 254, IT WOULD BE IMPERATIVE FOR US TO REFER THE JUDGMENT OF THE HON'BLE SUPREME COURT RENDERED IN T HE CASE OF HUKUMCHAND MILLS LTD. V. CIT (1967) 63 ITR 232 (SC) WHEREIN THE HON'BLE SUPREME COURT HAD CONSIDERED THE AMBIT AND SCOPE OF THE EXPRESSION 'PASS SUCH ORDERS THEREIN AS IT THINKS F IT', USED IN SECTION 33(4) OF IT ACT, 1922, WHICH IS ANALOGOUS TO 254(1) IN INCOME-TAX ACT, 1961. AT PAGE 237, THE HON'BLE SUPREME COURT MADE F OLLOWING OBSERVATION : 'THE WORD 'THERE OF, OF COURSE, RESTRICTS THE JURI SDICTION OF THE TRIBUNAL TO THE SUBJECT-MATTER OF THE APPEAL. T HE WORDS 'PASS SUCH ORDERS AS THE TRIBUNAL THINKS FIT' INCLUDE ALL THE POWERS (EXCEPT POSSIBLY THE POWER O F ENHANCEMENT) WHICH ARE CONFERRED UPON THE AAC BY SECTION 31 OF THE ACT. CONSEQUENTLY, THE TRIBUNAL H AS AUTHORITY UNDER THIS SECTION TO DIRECT THE AAC OR T HE ITO TO HOLD A FURTHER ENQUIRY AND DISPOSE OF THE CASE ON T HE BASIS OF SUCH ENQUIRY.' 22. THEN AGAIN THIS EXPRESSION CAME FOR CONSIDERATION B EFORE THE HON'BLE SUPREME COURT IN THE CASE OF CIT V. ASSAM T RAVELS SHIPPING IT(SS)A NO. 23 & 25 /HYD/11 SHRI T. KISH AN, SECUNDERABAD. .================== 11 SERVICE. (199 ITR 1) (SC). IN THIS CASE, ASSESSEE F ILED THE RETURN LATE FOR ASST. YRS. 1963-64 AND 1964 65. THUS, VIOLATED SECTION 271(1)(A)(2) OF THE ACT. THE LEARNED AO LEVIED THE PENALTY. HOWEVER, WHILE CALCULATING THE PENALTY, HE WORKED OUT THE AM OUNT AT A VERY LOWER FIGURE. HE LEVIED THE PENALTY AT RS. 6,494 AN D RS. 70,118 FOR ASST. YRS. 1963-64 AND 1964-65 RESPECTIVELY AS AGAI NST THE AMOUNT OF RS. 65,700 AND RS. 93,564. THE ASSESSEE CHALLENG ED THIS LEVY OF PENALTY BEFORE THE CIT(A). THE LEARNED CIT(A) QUASH ED THE PENALTY ON THE GROUND THAT THE AO LEVIED THE PENALTY CONTRARY TO THE PROVISIONS OF SECTION 271(1). THE MATTER FURTHER TRAVELLED TO THE TRIBUNAL. THE TRIBUNAL HAS ALSO DISMISSED THE APPEAL OF THE DEPAR TMENT BY CONFIRMING THE ORDER OF THE CIT(A) ON THE GROUND TH AT TRIBUNAL HAS NO POWER TO ENHANCE THE PENALTY. IN SUCH A SITUATIO N, IT CAN DO NOTHING EXCEPT AFFIRMING THE ORDER OF THE CIT(A). U LTIMATELY, THE MATTER WENT UP BEFORE THE HON'BLE SUPREME COURT. TH E HON'BLE. SUPREME COURT HAS OBSERVED AS UNDER WHILE ELABORATI NG THE SCOPE OF EXPRESSION 'PASS SUCH ORDERS THEREON AS IT THINKS F IT.' : 'THE EXPRESSION 'AS IT THINKS FIT' IS, WIDE ENOUGH TO INCLUDING THE POWER OF REMAND TO THE AUTHORITY COMPETENT TO MAKE THE REQUISITE ORDER IN ACCORDANCE WITH LAW IN SUCH A CASE EVEN TH OUGH THE TRIBUNAL ITSELF COULD NOT HAVE MADE THE ORDER ENHAN CING THE AMOUNT OF PENALTY. THE POWER OF THE AAC UNDER SECTION 251( 1)(B) INCLUDES THE POWER EVEN TO ENHANCE THE PENALTY SUBJECT TO TH E REQUIREMENT OF SUB-SECTION (2) OF SECTION 251 OF A REASONABLE OPPO RTUNITY OF SHOWING CAUSE AGAINST SUCH ENHANCEMENT BEING GIVEN TO THE APPELLANT ASSESSED. THIS COULD HAVE BEEN DONE IN TH E ASSESSEE'S APPEAL ITSELF FILED IN THE PRESENT CASE. THE POWER OF THE TRIBUNAL TO MAKE AN ORDER OF REMAND IN SUCH A SITUATION IS WELL -SETTLED IN HUKUMCHAND MILLS LTD. V. CIT (1967) 63 ITR 232 (SC) .' 23. ON PLAIN READING OF SUB-SECTION (3) OF SECTION 249 SHALL REVEAL THAT IF THE ASSESSEE SHOWED SUFFICIENT REASONS FOR LATE FILING OF HIS APPEALS, THEN SUCH DELAY CAN BE CONDONED AND CONTRO VERSY WOULD BE SILENCED ON MERIT. SIMILARLY, FOR SAKE OF EXPLANATI ON, IF AN ASSESSEE DID NOT HAVE SUFFICIENT FUNDS FOR COMPLYING THE REQ UIREMENT OF SECTION 249(4) AND HAS NOT FILED THE APPEAL WITHIN THE TIME PROVIDED UNDER SECTION 249(2), SUBSEQUENT TO EXPIRY OF LIMIT ATION, HE MADE IT(SS)A NO. 23 & 25 /HYD/11 SHRI T. KISH AN, SECUNDERABAD. .================== 12 COMPLIANCE OF SECTION 249(4) AND FILED THE APPEAL W ITH A PRAYER OF CONDONATION OF DELAY THEN IT WOULD BE IN DISCRETION OF THE FIRST APPELLATE AUTHORITY TO SEE WHETHER SUFFICIENT REASO NS FOR LATE FILING OF APPEAL EXIST OR NOT. IF THE LEARNED CIT(A) ARRIVED AT A CONCLUSION THAT SUFFICIENT REASONS EXIST THEN AGAIN THE CONTROVERSY WOULD BE DECIDED ON MERIT. THUS, ON CONJOINT READING OF SUB-SECTIONS (3) AND (4), IT IS INFERRED THAT DEFECT ARISES DUE TO NON-COMPLIANCE O F SECTION 249(4) IS A CURABLE ONE AND IN A GIVEN CASE IF THE TRIBUNAL I S SATISFIED THAT THERE EXIST SUFFICIENT REASONS FOR CURING SUCH DEFE CTS AFTER EXPIRY OF LIMITATION, IT WOULD BE IN THE REALM OF TRIBUNAL'S DISCRETION TO RESTORE SUCH MATTERS TO THE FILE OF THE CIT(A) FOR DECIDING THE CONTROVERSY ON MERIT BECAUSE SUB-SECTION (1) OF SECTION 254 PROVID ES WIDE POWERS TO THE TRIBUNAL FOR PASSING SUCH ORDERS THEREON AS IT THINKS FIT IN THE INTEREST OF JUSTICE. 24. THERE IS NO DISPUTE THAT THE ASSESSEE HAS DISCHARGE D THE HUGE TAX LIABILITY ON 17.2.2011 VIDE CHALLAN NO. 788, IN DIAN BANK, HIMAYATNAGAR BRANCH, HYDERABAD, BSR CODE 0260025 WH ICH IS EVIDENT FROM THE DOCUMENT FILED BY THE ASSESSEE. TH US, IT WOULD BE TOTALLY UNFAIR FOR NOT PROVIDING AN OPPORTUNITY TO HIM FOR DISPUTING THE ADDITIONS MADE BY THE AO ON MERIT. THE HON'BLE FULL BENCH OF DELHI HIGH COURT IN J.T. (INDIA) EXPORTS AND ANR. V . UNION OF INDIA AND ANR. (2003) 262 ITR 269 (DEL)(FB), WHILE ELABOR ATING THE PRINCIPLE OF NATURAL JUSTICE ALONG WITH THE LEGAL J USTICE, HAS OBSERVED AS UNDER : 'NATURAL JUSTICE IS ANOTHER NAME FOR COMMONSENSE JU STICE. RULES OF NATURAL JUSTICE ARE NOT CODIFIED CANONS. BUT THEY A RE PRINCIPLES INGRAINED INTO THE CONSCIENCE OF MAN. NATURAL JUSTI CE IS THE ADMINISTRATION OF JUSTICE IN A COMMONSENSE LIBERAL WAY. JUSTICE IS BASED SUBSTANTIALLY ON NATURAL IDEALS AND HUMAN VAL UES. THE ADMINISTRATION OF JUSTICE IS TO BE FREED FROM THE N ARROW AND RESTRICTED CONSIDERATIONS WHICH ARE USUALLY ASSOCIATED WITH A FORMULATED LAW INVOLVING LINGUISTIC TECHNICALITIES AND GRAMMATICAL NICETIES. IT IS THE SUBSTANCE OF JUSTICE WHICH HAS TO DETERMINE ITS FOR M. IT(SS)A NO. 23 & 25 /HYD/11 SHRI T. KISH AN, SECUNDERABAD. .================== 13 25. THE EXPRESSION, 'NATURAL JUSTICE AND LEGAL JUSTICE' DO NOT PRESENT A WATER-TIGHT CLASSIFICATION. IT IS THE SUB STANCE OF JUSTICE WHICH IS TO BE SECURED BY BOTH, AND WHENEVER LEGAL JUSTICE FAILS TO ACHIEVE THIS SOLEMN PURPOSE, NATURAL JUSTICE IS CAL LED IN AID OF LEGAL JUSTICE. NATURAL JUSTICE RELIEVES LEGAL JUSTICE FRO M UNNECESSARY TECHNICALLY, GRAMMATICAL PEDANTRY OR LOGICAL PREVAR ICATION. IT SUPPLIES THE OMISSIONS OF A FORMULATED LAW. 26. THE ADHERENCE TO PRINCIPLE OF NATURAL JUSTICE AS RE COGNIZED BY ALL CIVILIZED STATES IS OF SUPREME IMPORTANCE WHEN A QUASI-JUDICIAL BODY EMBARKS ON DETERMINING DISPUTES BETWEEN THE PA RTIES.' 27. FROM THE JUDGMENT OF HON'BLE DELHI HIGH COURT, IT I S CLEAR THAT WHENEVER LEGAL JUSTICE FAILS TO ACHIEVE THE SOLEMN PURPOSE OF SECURING JUSTICE THEN NATURAL JUSTICE IS CALLED IN AID OF LE GAL JUSTICE. FROM THE DETAILS SUBMITTED BY THE ASSESSEE IN THE PAPER BOOK AS EXTRACTED BY US, IT REVEALS THAT ASSESSES KEPT ON MAKING THE PAY MENT OF TAX ALONG WITH INTEREST IN INSTALMENTS. HAD THE ASSESSEE WAS HAVING SUFFICIENT FUND WITH HIM, THEN NO PRUDENT BUSINESSMAN WOULD AL LOW TO SWELL THE LIABILITY OF INTEREST IN SUCH A WAY. FOR EXAMPL E, THE TOTAL TAX REQUIRED TO BE PAID BY THE ASSESSEE IN ASST. YR. 19 91-92 ON THE AGREED RETURN ALONG WITH INTEREST WAS RS. 17,30,273 . AGAINST IT, BY THE END OF DECEMBER, 1997, ASSESSEE HAS PAID RS. 26 ,09,843. THUS, IT CLEARLY INDICATES THAT ASSESSEE WAS NOT HAVING S UFFICIENT FUNDS AT THE RELEVANT TIME FOR COMPLIANCE OF SECTION 249(4) WHICH RENDERED THE APPEALS OF THE ASSESSEE AS DEFECTIVE ONE. IN TH E INTEREST OF JUSTICE, WE ARE OF THE OPINION THAT THESE APPEALS DESERVE TO BE ALLOWED BY SETTING ASIDE THE IMPUGNED ORDER OF THE CIT(A) AND RESTORING THE SAME BEFORE THE LEARNED FIRST APPELLATE AUTHORITY F OR ADJUDICATION ON MERIT. FOR OUR ABOVE VIEW, WE ARE SUPPORTED BY THE DECISION OF HON'BLE ORISSA HIGH COURT GIVEN IN THE CASE OF CIT V. KALIPADA GHOSE (1987) 167 ITR 173 (ORI). THOUGH THE ISSUE BEFORE T HE HON'BLE HIGH COURT WAS ON A LITTLE DIFFERENT FOOTING, BUT AN INF ERENCE CAN BE DRAWN IT(SS)A NO. 23 & 25 /HYD/11 SHRI T. KISH AN, SECUNDERABAD. .================== 14 FROM THE JUDGMENT THAT IN SUCH CASES THE RIGHT COUR SE WOULD BE RESTORING THE APPEAL BEFORE THE CIT(A). BEFORE THE HON'BLE ORISSA HIGH COURT, THE ISSUE RELATES TO ASST. YRS. 1974-75 AND 1975-76. THE LEARNED AO DETERMINED THE INCOME OF ASSESSEE AT RS. 17,500 AND RS. 30,000. AGAINST THIS ORDER, THE APPEALS WERE FILED BEFORE THE FIRST APPELLATE AUTHORITY ON 29TH OCT., 1975. BY THEN SEC TION 249 HAS BEEN AMENDED BY INCORPORATING SUB-SECTION (4) W.E.F . 1ST OCT., 1975. THE LEARNED FIRST APPELLATE AUTHORITY DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE ON THE GROUND THAT ASSESSEE FAIL ED TO PAY THE AGREED TAX AT THE TIME OF FILING OF THE APPEAL. DUR ING THE PENDENCY OF APPEAL BEFORE THE TRIBUNAL, THE ASSESSEE PAID AGREE D TAX ON 15TH JUNE, 1976, THE TRIBUNAL SET ASIDE THE ORDER OF THE LEARNED CIT(A) AND RESTORED THE MATTER BACK TO THE FILE OF FIRST A PPELLATE AUTHORITY. THE REVENUE HAS CHALLENGED THE ORDER OF THE TRIBUNA L ON THE GROUND THAT DECISION GIVEN BY THE FIRST APPELLATE AUTHORIT Y WAS NOT ONE UNDER SECTION 250 OF THE ACT AND, THEREFORE, NO APPEAL WO ULD LIE TO THE TRIBUNAL AND THE TRIBUNAL HAS NO JURISDICTION UNDER SECTION 253 FOR SETTING ASIDE THE ORDER OF FIRST APPELLATE AUTHORIT Y AND DIRECTING THE FIRST APPELLATE AUTHORITY TO DECIDE THE ISSUE AFRES H ON MERIT. THE HON'BLE HIGH COURT REJECTED THE CONTENTION OF THE R EVENUE AND UPHELD THE ORDER OF THE TRIBUNAL. WHILE DOING SO, T HE HON'BLE HIGH COURT AT P. 176 OBSERVED AS UNDER : 'ON THE AFORESAID ANALYSIS, IT HAS TO BE HELD THAT THE ORDER OF THE AAC DISMISSING THE APPEALS FOR NON-COMPLIANCE WITH SECT ION 249(4) OF THE ACT CAME WITHIN THE AMBIT OF SECTION 250 OF THE ACT AND WAS APPEALABLE BEFORE THE TRIBUNAL UNDER SECTION 253 OF THE ACT. THE TRIBUNAL, THEREFORE, COMMITTED NO ILLEGALITY IN ENT ERTAINING THE APPEALS AND IN CONDONING THE DELAY ON BEING SATISFI ED, ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THAT THERE WAS SUFFI CIENT CAUSE FOR THE ASSESSEE'S FAILURE TO COMPLY WITH SECTION 249(4) OF THE ACT AND IN REMITTING THE CASES TO THE FIRST APPELLATE FORUM FO R DISPOSAL ON MERITS. ACCORDINGLY, THE QUESTION REFERRED IS ANSWERED IN T HE AFFIRMATIVE.' 28. THUS, WE ARE FORTIFIED FOR OUR VIEW BY THE ABOVE DE CISION OF THE HON'BLE HIGH COURT. IT(SS)A NO. 23 & 25 /HYD/11 SHRI T. KISH AN, SECUNDERABAD. .================== 15 29. THE NEXT ISSUE FOR OUR ADJUDICATION IS WHETHER SUFF ICIENT REASONS EXIST FOR CURING DEFECT AFTER EXPIRY OF LIM ITATION PROVIDED UNDER SECTION 249(2) OF THE ACT. SINCE, WE HAVE HEL D IN THE UPPER PART OF THE ORDER THAT APPEAL FILED IN VIOLATION OF SECTION 249(4) WOULD BE TERMED AS A DEFECTIVE ONE AND THE MOMENT DEFECT IS CURED THEN THOSE CAN BE DISPOSED OF ON MERIT SUBJECT TO LIMITA TION. THE COURTS AND THE QUASI-JUDICIAL BODIES ARE EMPOWERED TO COND ONE THE DELAY IF A LITIGANT SATISFIES THE COURT THAT THERE WERE SUFF ICIENT REASONS FOR AVAILING THE REMEDY AFTER EXPIRY OF LIMITATION. SUC H REASONING SHOULD BE TO THE SATISFACTION OF THE COURT. THE EXPRESSION 'SUFFICIENT CAUSE OR REASON', AS PROVIDED IN SUB-SECTION (3) OF SECTI ON 249 OF THE ACT, IS USED IN IDENTICAL POSITION IN A NUMBER OF STATUTES AND THE HON'BLE SUPREME COURT AS WELL AS THE HON'BLE HIGH COURTS HA VE TIME AND AGAIN HELD THAT EXPRESSION 'SUFFICIENT CAUSE' FOR C ONDONATION OF A DELAY SHOULD RECEIVE A LIBERAL CONSTRUCTION SO AS T O ADVANCE SUBSTANTIAL JUSTICE WHEN NO NEGLIGENCE OR INACTION OR WANT OF BONA FIDE IS IMPUTABLE TO A PARTY BECAUSE THE JUDICIARY IS EXPECTED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHN ICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING T HE DELAY OR BREACHING ANY PROVISION OF A STATUTE. THE HON'BLE, SUPREME COURT IN COLLECTOR, LAND ACQUISITION V. MST. KATIJI AND O RS. (1987) 167 1TR 471 (SC) HAS OBSERVED THAT WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS ARE PITTED AGAINST EACH OTHER, THE C AUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED, FOR THE OTHER SID E CANNOT CLAIM TO HAVE A VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON- DELIBERATE DELAY. THUS, CONSIDERING THE HARDSHIP OF THE ASSESSEE, WE ARE OF THE OPINION THAT THERE EXIST SUFFICIENT REAS ONS FOR NOT FILING A VALID EFFECTIVE APPEAL BEFORE THE CIT(A). IT IS APT LY SAID THAT FACTS SHOULD BE VIEWED IN A NATURAL PERSPECTIVE HAVING RE GARD TO THE COMPULSION OF CIRCUMSTANCES OF A CASE WHERE IT IS P OSSIBLE TO DRAW INFERENCES, FROM THE FACTS AND WHERE THERE IS NO EV IDENCE OF ANY DISHONEST OR IMPROPER MOTIVE ON THE PART OF THE ASS ESSEE IT WOULD BE IT(SS)A NO. 23 & 25 /HYD/11 SHRI T. KISH AN, SECUNDERABAD. .================== 16 JUST AND EQUITABLE TO DRAW SUCH INFERENCE IN SUCH A -MANNER THAT WOULD LEAD TO EQUITY AND JUSTICE. TOO HYPER TECHNIC AL OR LEGALIZED APPROACH SHOULD BE AVOIDED IN LOOKING AT A PROVISIO N WHICH MUST BE EQUITABLY INTERPRETED AND JUSTLY ADMINISTERED. HENC E, TAKING INTO CONSIDERATION THE OVERALL FACTS AND CIRCUMSTANCES O F THE CASE WE ARE OF THE OPINION THAT THESE APPEALS DESERVE TO BE ALL OWED AND, ACCORDINGLY, ALLOWED. WE SET ASIDE THE ORDER OF THE LEARNED CIT(A) AND RESTORE THE MATTERS BEFORE HIM FOR DECIDING THE CON TROVERSY ON MERIT. 30. IN THE RESULT, IT(SS)A NO. 25/HYD/2011 IS DISMISSED AND IT(SS)A NO. 23/HYD/2011 IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH MAY, 2012 SD/- (ASHA VIJAYARAGHAVAN) SD/- (CHANDRA POOJARI) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDERABAD, DATED THE 18 TH MAY, 2012 COPY FORWARDED TO: 1. SHRI T.KISHAN, C/O. M/S. SEKHAR & CO., CHARTERED ACCOUNTANTS, 133/4, R.P.ROAD, SECUNDERABAD.. 2. ASST . COMMISSIONER OF INCOME - TAX CENTRAL CIRCLE - 2, HYDERABAD 3. COMMISSIONER OF INCOME - TAX(APPEALS) I , HYDERABAD. 4. COMMISSIONER OF INCOME - TAX CENTRAL , HYDERABAD 5. DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S/TPRAO