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Income Tax Appellate Tribunal, ‘SMC’ BENCH, KOLKATA
Before: Shri Sanjay Garg, J & Dr. Manish Borad
Per Dr. Manish Borad, Accountant Member:- This appeal at the instance of assessee for assessment year 2013-14 is directed against the order of
(A.Y. 2013-14) Micro Capitals Pvt. Limited ld. Commissioner of Income Tax (Appeals)-5, Kolkata dated 19.05.2017, which is arising out of the order under section 144 of the Act on 22.03.2016 framed by ld. ITO, Ward-15(3), Kolkata.
2. The present appeal has been filed before the Tribunal on 21.07.2023. The Registry has pointed out that appeal is time-barred by 2193 days.
During the course of hearing, ld. Counsel for the assessee referring to the contents of condonation application stated that the assessee was prevented for sufficient cause for filing the appeal within the statutory time limit. Reliance was placed on the judgment of the Hon’ble Supreme Court in the case of Senior Bhosale Estate (HUF) –vs.- ACIT reported in (2019) 112 taxmann.com 134 (SC) and the judgment of the Hon’ble Calcutta High Court in the case of Vijay Kumar Ruia –vs.- CIT reported in (2011) 15 taxmann.com 310 (Allahabad). In support of this contention for condonation of delay, relevant extract of the condonation petition is extracted below:-
(A.Y. 2013-14) Micro Capitals Pvt. Limited (A.Y. 2013-14) Micro Capitals Pvt. Limited (A.Y. 2013-14) Micro Capitals Pvt. Limited
4. On the other hand, ld. D.R. opposed the request of ld. Counsel for the assessee for condoning the delay. Ld. D.R. contended that the assesee should be more vigilant and should have filed the appeal within the time limit provided in the Act.
We have heard the rival contentions, perused the relevant records placed before us and the judgments referred and relied therein. We find merit in the contention of the ld. Counsel for the assessee and are of the view that there was sufficient reason, for (A.Y. 2013-14) Micro Capitals Pvt. Limited which the assessee was restrained from filing the appeal before this Tribunal within the statutory time limit. Sub-section 5 of Section 253 contemplates that the Tribunal may admit an appeal or permit filing of memorandum of cross- objections after expiry of relevant period, if it is satisfied that there was a sufficient cause for not presenting it within that period. This expression sufficient cause employed in the section has also been used identically in sub-section 3 of section 249 of Income Tax Act, which provides powers to the ld. Commissioner to condone the delay in filing the appeal before the Commissioner. Similarly, it has been used in section 5 of Indian Limitation Act, 1963. Whenever interpretation and construction of this expression has fallen for consideration before Honble High Court as well as before the Honble Supreme Court, then, Honble Court were unanimous in their conclusion that this expression is to be used liberally. We may make reference to the following observations of the Hon’ble Supreme court from the decision in the case of Collector Land Acquisition Vs. Mst. Katiji & Others, 1987 AIR 1353: 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 6
(A.Y. 2013-14) Micro Capitals Pvt. Limited 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 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.
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 (A.Y. 2013-14) Micro Capitals Pvt. Limited because it is capable of removing injustice and is expected to do so.
Similarly, we would like to make reference to authoritative pronouncement of Honble Supreme Court in the case of N. Balakrisknan Vs. M. Krishnamurtky (supra). It reads as under: “Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi lain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn 8
(A.Y. 2013-14) Micro Capitals Pvt. Limited down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss”.
We do not deem it necessary to re-cite or recapitulate the proposition laid down in other decisions. It is suffice to say that the Honble Courts are unanimous in their approach to propound that whenever the reasons assigned by an applicant for explaining the condonation of delay, then such reasons are to be construed with a justice oriented approach.
In the light of the above, we are of the view that while making this appeal time barred, the assessee will not gain anything. The delay has not been adopted by the assessee as a strategy to litigate with the Revenue. The delay is the result of human lapses and we find merit in the contention of the ld. Counsel for the assessee and are of the view that there was sufficient reason, which the assessee was restrained from filing the appeal before this Tribunal within the statutory time limit. Therefore, in the interest of justice, we condone the said delay of 2193 days and admit the appeal for adjudication on merit. 9
(A.Y. 2013-14) Micro Capitals Pvt. Limited 9. On due consideration of the above facts and circumstances, we are of the view that sub-section (6) of section 250 contemplates that ld. CIT(Appeals) would state the points in dispute and thereafter record reasons in support of her conclusion on those points. A perusal of the impugned order would reveal that this mandatory procedure has not been followed by the ld. CIT(Appeals). Hence, the impugned order is not sustainable, and is set aside. The issues agitated by the assessee in the grounds of appeal extracted supra are remitted back to the ld. CIT(Appeals) for fresh adjudication on merit after providing assessee sufficient opportunity of being heard. The ld. Assessing Office having jurisdiction over the assessee would ensure the transmission of this record to the competent authority for allocation of this appeal to CIT(Appeals) through alleged National Faceless Disposal of the appeal.
10. In the result, the appeal of the assessee is treated as allowed for statistical purposes. Order pronounced in the open Court on 13th September, 2023. Sd/- Sd/- (Sanjay Garg) (Manish Borad) Judicial Member Accountant Member Kolkata, the 13th day of September, 2023 Copies to :(1) Micro Capitals Pvt. Limited, Shop No. 35, Sonam Shopping Center, Old Golden Nest, Phase-6, Mira Bhayander East, Thane-401105, Maharashtra
(A.Y. 2013-14) Micro Capitals Pvt. Limited