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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
ITA Nos. 302 & 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.
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
ITA Nos. 302 & 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.
ITA Nos. 302 & 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.
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.
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.
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
ITA Nos. 302 & 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.
Sd/- Sd/- (R.L.NEGI) ( ANNAPURNA GUPTA) Accountant Member Judicial Member Dated : “आर.के.” आदेशक���त�ल�पअ�े�षत/ Copy of the order forwarded to : 1. अपीलाथ�/ The Appellant 2. ��यथ�/ The Respondent 3. आयकरआयु�त/ CIT 4. आयकरआयु�त (अपील)/ The CIT(A) 5. �वभागीय��त�न�ध, आयकरअपील�यआ�धकरण, च�डीगढ़/ DR, ITAT, CHANDIGARH 6. गाड�फाईल/ Guard File
आदेशानुसार/ By order, सहायकपंजीकार/ Assistant Registrar