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Income Tax Appellate Tribunal, ‘B’ BENCH, KOLKATA
Before: Shri Rajpal Yadav, Vice-(KZ) & Shri Girish Agrawal
Per Rajpal Yadav, Vice-President (KZ):- The assessee is in appeal before the Tribunal against the order of ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi dated 10.08.2021 passed for A.Y. 2011-12.
The grievance of the assessee is that ld. CIT(Appeals) has erred in confirming the penalty of Rs.10,000/-, which was imposed by the ld. Assessing Officer under section 271(1)(b) of the Income Tax Act on account of non-appearance of the assessee is in response to the notice issued under section 142(1) of the Income Tax Act by the ld. Assessing Officer.
The Registry has pointed out that appeal is time-barred by 475 days. In order to explain the delay, assessee has filed an application, which reads as under:-
ITA No. 68/KOL/2023 Assessment Year: 2011-2012 Shri Rahul Todi
With the assistance of the ld. Representative, we have gone through the record carefully. 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 3
ITA No. 68/KOL/2023 Assessment Year: 2011-2012 Shri Rahul Todi 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 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 4
ITA No. 68/KOL/2023 Assessment Year: 2011-2012 Shri Rahul Todi 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.
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:
ITA No. 68/KOL/2023 Assessment Year: 2011-2012 Shri Rahul Todi “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 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 6
ITA No. 68/KOL/2023 Assessment Year: 2011-2012 Shri Rahul Todi 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, let’s examine the explanation given by the assessee in the above application. Out of these 475 days, roughly 375 days are attributable to COVID period and the rest of 100 days is required to be explained by the assessee. A perusal of the above application would reveal that basically the appeal could not be filed before the Tribunal on account of old age of the Tax Consultant and the pandemic situation due to COVID. Therefore, we condone the delay in filing the appeal and proceed to decide the appeal on merit.
Before us, the assessee has filed a complete list of events exhibiting his response on each date. Such evens read as under:-
ITA No. 68/KOL/2023 Assessment Year: 2011-2012 Shri Rahul Todi
A perusal of the above, we are satisfied that though the assessee failed to respond only on one notice, but ultimately submitted the necessary details required for his assessment of
ITA No. 68/KOL/2023 Assessment Year: 2011-2012 Shri Rahul Todi income under section 147 read with section 143(3) of the Income Tax Act. For one default, the ld. Assessing Officer should have adopted a lenient view and should have not visited the assessee with penalty. We allow the appeal of the assessee and delete the penalty. 10. In the result, the appeal of the assessee is allowed. Order pronounced in the open Court on 13thMarch, 2023. Sd/- Sd/- (Girish Agrawal) (Rajpal Yadav) Accountant Member Vice-President (KZ) Kolkata, the 13th day of March, 2023 Copies to :(1) Shri Rahul Todi, 2/2B, Sarat Bose Road, Kolkata-700020 (2) Deputy Commissioner of Income Tax, Circle-5(1), Kolkata, Aayakar Bhawan, P-7, Chowringhee Square, Kolkata-700069 (3) Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi; (4) Commissioner of Income Tax- , Kolkata; (5) The Departmental Representative (6) Guard File TRUE COPY By order Assistant Registrar, Income Tax Appellate Tribunal, Kolkata Benches, Kolkata Laha/Sr. P.S.