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Income Tax Appellate Tribunal, HYDERABAD BENCHES “B ”: HYDERABAD
Before: SHRI SATBEER SINGH GODARA & SHRI LAXMI PRASAD SAHU
O R D E R PER L.P. SAHU, A.M.: This appeal is filed by the assessee is directed against CIT(A) - 3 Hyderabad’s order dated 07/08/2020 for AY 2011-12 involving proceedings u/s 143(3) r.w.s. 147of the Income- Tax Act, 1961; in short “the Act”.
2. The grounds raised in this appeal are against the action of the CIT(A) in dismissing the appeals by not condoning the delay in filing the appeal before him.
In the course of hearing, it was pointed out by the learned counsel of the assessee that the learned CIT(A) had decided the matters ex-parte and dismissed the appeal without condoning the delay. Therefore, it would be in the interest of justice, the matter may be restored to his file for deciding various grounds of appeals on merits.
4.1 He further submitted that similar issue came up for consideration before the coordinate bench of this Tribunal in assessee’s own case along with other assessees’ in and others for AY 2009-10 vide order dated 08/09/2021 and the Tribunal remitted the issue back to the file of the CIT(A) with a direction to condone the delay and decide the appeals on merits.
The learned DR agreed with the aforesaid statement of the learned AR.
Considered the rival submissions and perused the material on record. As submitted by the ld. AR of the assessee, similar issue came up for consideration before the coordinate bench in assessee’s own case along with other assessees’ vide order dated 08/09/2021 cited supra, wherein the coordinate bench has held as under: 5. Considered the rival submissions and perused the material facts on record. By all possibilities, no one can deny that there are delays in filing the appeal. Every person has a right to appeal and specifically in the case
of company, which depends in the efficiency of various individuals. In the given case, the junior accountant has not brought to the notice of senior management. One cannot deny the above possibility. Merely because the company is professionally managed, we cannot assure that they cannot make any mistake. There is saying that there is dark under the light. Therefore, in the interest of justice, we restore the matters back to the file of the CIT(A) with a direction to condone the delays in filing these appeals before him and decide various grounds of appeal of the assessee on merits. Accordingly, the CIT(A) is directed to afford reasonable opportunity of being heard to the assessees and thereafter decide the appeals on merits. Our view is supported by the following judgements: 5.1. The judgement of the Hon’ble Supreme Court in the case of Collector, Land Acquisition Vs. MST. Katiju and others, [1987]167 ITR 471, wherein the Hon’ble Apex Court has held as under: “3. The legislature has conferred the power to condone delay by enacting s. 5 of the Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on "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 other Courts in the hierarchy.
4. And such a liberal approach is adopted on principle as it is realized that:
Ordinarily, a litigant does not stand to benefit by lodging an appeal late.
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 and pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, the 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 the 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.” 5.2. The decision in the case of CIT Vs. K.F. Bioplant (P) Ltd., (Bom) 233 Taxman 74, wherein the Hon’ble Bombay High Court has held as under: “8. We have considered the application for condonation of delay keeping in mind the following observations of the Apex Court in State of M.P. v. Pradeep Kumar [2000] 7 SCC 372: 'It is true that the pristine maxim "Vigilantibus Non Dormientiobus Jura Subveniunt (Law assists those who are vigilant and not those who sleep over their rights). But, even a vigilant litigant is prone to commit mistakes. As the aphorism "to err is human" is more a practical notion of human behaviour than an abstract philosophy, the unintentional lapse on the part of a litigant should not normally cause the doors of judicature permanently closed before him . . .' This we counter-balanced by the likely prejudice to the other side on account of condoning the delay. We are of the view that in view of revenue's mistake the delay of 1845 days in taking out the present motion be condoned and we also set aside the order dated 7.11.2009 and restore the Appeal to the file of this Court. However, a mistake on the part of the revenue would have been averted if appropriate care had been taken by them. Thus, the lack of care which led to a mistake of 1845 days cannot be without costs. Therefore, the delay is condoned subject to the Appellant-revenue paying a cost of Rs.20,000/- to the respondent- assessee on or before 30.3.2015. Needless to state the appellant will also remove the office objections on or before 30.3.2015.”
6. We direct the assessees to appear before CIT(A) with all the relevant evidences; at their own risk and responsibilities to be followed by three effective opportunities of hearing.
7. In the CIT(A) dismissed the appeal on the ground of non appearance by the assessee. In the interest of justice, we restore the matter back to the file of the CIT(A) with a direction to decide the appeal on merits. We direct the assessees to appear before CIT(A) with all the relevant evidences; at her own risk and responsibilities to be followed by three effective opportunities of hearing. 8. In the result, all the appeals under consideration are treated as allowed for statistical purposes in above terms. A copy of this common order be placed in the respective case files.
6.1 Since the issue is materially identical to the assessee’s own case cited supra, following the decision of the coordinate bench, we remit the issue to the file of the CIT(A) with a direction to condone the delay and decide the appeal on merits after affording opportunity to the assessee in the matter. We direct the assessee to appear before CIT(A) with all the relevant evidences; at her own risk and responsibilities to be followed by three effective opportunities of hearing. Accordingly, grounds raised by the assessee are treated as allowed for statistical purposes.
In the result, appeal of the assessee is allowed for statistical purposes in above terms. Pronounced in the open court on 14th December, 2021.