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Income Tax Appellate Tribunal, ‘B’ BENCH : BANGALORE
Before: SHRI CHANDRA POOJARI & SMT. BEENA PILLAI
Date of hearing : 10.10.2023 Date of Pronouncement : 10.10.2023 O R D E R Per Chandra Poojari, Accountant Member
This appeal by the assessee is directed against the order of the NFAC, Delhi dated 15/6/2023 for the for the assessment year 2016-2017.
The assessee raised the following grounds of appeal:-
“1. The impugned Appellate order dated: 15-06-2023 passed by the National Faceless Appeal Centre (NFAC), Delhi is opposed to law, facts and circumstances of the case.
2. The Ld. NFAC erred in law and on facts in not condoning he delay for filing the appeal even though there is a sufficient and reasonable cause for such delay.
3. The Ld. NFAC erred in not appreciating the fact that the appellant had filed condonation application vide submissions dated 05-06-2020 and Ld. NFAC disregarding the submissions has dismissed the appeal on the ground that the appellant has not submitted any supporting documents in support of delay in filing the appeal in terms of section 249(2) of the Act.
4. The Ld. NFAC failed to appreciate that the Appellant ought not have been denied remedy by way of appeal on mere technicalities in view of the landmark Supreme Court judgment in Collector, Land Acquisition vs. Mst. Katiji reported in 167 ITR 471 (1987) and ought to have exercised he discretion vested as per the provisions of section 249(3) of the Act in the most judicious manner to promote and uphold he substantial cause of justice on the facts and circumstance of the case 5. The Ld. NFAC erred in not adjudicating the Appeal on the merits of the case.
6. The Appellant craves leave to add, alter, amend and delete any of the grounds at the time of hearing.”
It was noted by the NFAC, Delhi that there was a delay of 204 days in filing the appeal before the NFAC, Delhi. Further, it was stated before NFAC, Delhi, the assessee has filed condonation petition by way of an Affidavit. The assessment order was passed on 4/7/2019 and the assessee has to file appeal before the NFAC, Delhi within 30 days from the receipt of copy of the assessment order i.e on or before 4.8.2019. However, it was filed on 22/02/2020 thereby causing a delay of 204 days in filing the appeal before the NFAC, Delhi which was explained before the NFAC, Delhi that the assessee was busy due to ill health of his mother, who was repeatedly hospitalized and finally she expired on 12/01/2020. To support this claim, the assessee has filed a copy of death certificate of his mother Smt. Vimala Dhanaraj, which is placed on record at page no.8 of the assessee’s paper book. It was submitted before NFAC, Delhi that the assessee has no malafide intention in filing the appeal belatedly and assessee was prevented by ‘sufficient cause’ in filing the appeal belatedly before NFAC, Delhi and prayed to condone the delay. The NFAC, Delhi over looked the condonation petition filed by the assesee along the death certificate of assessee’s mother and dismissed the appeal of the assessee in limine without adjudicating on merit of the issues raised by the assessee.
Hence, the assessee filed appeal before us.
The ld.AR submitted that there was short delay of 204 days in filing the appeal before the NFAC, Delhi which was due to ill health of assessee’s mother Smt. Vimala Dhanaraj and assessee was busy in taking medical care of his mother when she was hospitalized and finally she was expired on 12/1/2020. The assessee filed condonation petition and filed an Affidavit to this effect. In our opinion, there was ‘sufficient cause’ in filing the appeal belatedly before the NFAC, Delhi and advancement of substantial justice is the prime factor while considering the reasons for condoning the delay. In this case, the assessee explained the delay i.e due to ill health of his mother and who was finally expired on 12/1/2020, therefore, in our opinion, there is no malafide intention in filing the appeal belatedly by the assesee before the NFAC, Delhi and the judgment in the case of Collector, Land Acquisition vs. Mst. Katiji reported in 167 ITR 471 (1987) (SC) is support the case of the assessee, wherein, it was held as under:-
1. 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 con- doned 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 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.
6. 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.
Hence, when substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right for injustice being done because of non-deliberate delay. Moreover, no counter-affidavit was filed by the revenue denying the submission made by the assessee. It is not the case of the revenue that the appeal was not filed deliberately. Therefore, we have to prefer substantial justice rather than technicality in deciding the issue. As observed by Apex Court, if the application of the assessee for condoning the delay is rejected, it would amount to legalise injustice on technical ground when the Tribunal is capable of removing injustice and to do justice. Therefore, this Tribunal is bound to remove the injustice by condoning the delay on technicalities. If the delay is not condoned, it would amount to legalising an illegal order which would result in unjust enrichment on the part of the State by retaining the tax relatable thereto. Under the scheme of Constitution, the Government cannot retain even a single pie of the individual citizen as tax, when it is not authorised by an authority of law.
Being so, considering the facts and circumstances of the case, we are inclined to condone the delay of 204 days in filing the appeal before the NFAC, Delhi. After condoning the delay, in our opinion, it is appropriate to remit the issue to the file of NFAC, Delhi for fresh consideration to decide the issue on merits.