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आदेश/Order
Per Bench:
The assessee has filed the captioned appeals against order dated 25.01.2017 passed by the Commissioner of Income Tax (Appeals)-3, Gurgaon [(for short ‘the CIT(A)’] and order dated 7.6.2019 passed by CIT(A)-3, Gurgaon. Vide first order, the Ld. CIT(A) has partly allowed the appeal filed by the assessee against the assessment order u/s 144 read with section 143(3) of the Act (for short ‘the Act’) and vide second order the Ld. CIT(A) has dismissed the appeal file by the assessee & 303-c-20- Shimla Medicos, Chandigarh
2 against the penalty order passed by the Assessing Officer u/s 271(1)(c) of the Act.
The ld. Counsel for the assessee submitted before us that the assessee wants to opt for Vivad Se Viswas Scheme, 2020, however, since there is a delay in filing of these appeals and as per Circular No. 21/2020 dated 4.12.2020 issued by the CBDT, the assessee will be eligible in such cases if the competent authority condones the delay in filing the appeals.
3. The Ld. counsel further submitted that there is a delay of 1189 days in filing the appeal against quantum order passed by the ld. CIT(A) and there is a delay of 307 days in filing the appeal against the order confirming penalty imposed by the AO u/s 271(1)(c) of the Act. The Ld. Counsel further submitted that assessee has filed separate applications for condonation of delay duly supported by affidavits. The Ld. Counsel further submitted that appellant is a partnership firm and had a contract to run Chemist Shop in PGI Chandigarh. The terms of the said contract had expired earlier to 2015 and the firm had to vacate the premises.
During pendency of the appeal before the Ld. CIT(A), the firm closed all its operations due to which order passed by the Ld. CIT(A) was never served on the appellant firm. It was only during the proceedings u/s 271 (1)(c) of the Act, the assessee came to know about the passing of the impugned appellate order. Thereafter, the partners authorized to sign the & 303-c-20- Shimla Medicos, Chandigarh
3 appeal on behalf of the appellant-assessee, who was not keeping good health was admitted to PGI Chandigarh for treatment. The Ld. Counsel invited our attention to the copy of medical card issued by PGI Chandigarh attached along with the application for condonation of delay. Accordingly, the Ld. counsel submitted that since the delay was caused due to the reason beyond the control of the appellant and bona fide, the applications may be allowed and the delay may be condoned in both the appeal and that both the appeals maybe dismissed as withdrawn.
The Ld. DR submitted that the delay in both the cases are inordinate and the assessee has failed to prove sufficient cause for condonation of such delay. However, the ld. DR further submitted that since the assessee wants to opt for Vivad Se Vishwas Scheme 2020, a lenient view may be taken and the appeals may be decided accordingly.
We have heard the submissions made by both the sides and perused the material on record. As pointed out by the ld. Counsel, since the assessee had closed its business operations the assessee could not receive the order passed by the Ld. CIT(A). The department has not rebutted these fats. Further, the assessee could not file the appeals within limitation period as the partner of the assessee had to undergo medical treatment due to his ill health. & 303-c-20- Shimla Medicos, Chandigarh
4 6. The Hon'ble Supreme Court in the case of Collector, Land Acquisition vs Mst. Katiji & Ors (1987) AIR 1353, 1987 SCR (2) 387 has laid down the principles to be followed while dealing with the issue of condonation of delay which are as follows:-
“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 condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
"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.
It must be grasped that 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.”
In the present cases, although the delay is inordinate, yet, in view of the fact that the assessee wants to avail the benefit of the provisions of Vivad Se Viswas Act, 2020 and the assessee has explained the cause & 303-c-20- Shimla Medicos, Chandigarh
5 of delay in filing the present appeals, we are of the considered view that no prejudice is going to be caused to the revenue in case the delay is condoned in both the cases. Accordingly, in view of the principles laid down by the Hon'ble Supreme Court in the case of Collector, Land Acquisition vs Mst. Katiji & Ors (supra) we take a lenient view and allow the applications for condonation delay and dismiss both the cases of the assessee as withdrawn with the liberty to file M.As. for restoration of the appeals in case the issues involved are not settled under the provisions of Vivad Se Visvas Act, 2020. In the result, both the appeals of the assessee are dismissed. Order pronounced on 28.01.2021.