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Income Tax Appellate Tribunal, KOLKATA-PATNA ‘e-COURT’, KOLKATA
Before: Shri Rajpal Yadav, Vice-(KZ) & Dr. Manish Borad
Per Rajpal Yadav, Vice-President (KZ):- The assessee has filed the present Stay Application with a prayer to grant stay of the outstanding demand amounting to Rs.17,26,016/-.
With the assistance of ld. Representatives, we have gone through the record carefully. A perusal of the impugned order would reveal that ld. CIT(Appeals) has not adjudicated the appeal on merit, rather dismissed it for want of prosecution. Therefore, instead of granting any stay, we deem it appropriate to hear the appeal itself along with this Stay Application. There is no objection qua this step at the end of the parties. Therefore, present Stay Application is dismissed.
3. The present appeal is directed at the instance of assessee against the order of ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi dated 12th August, 2023 passed for A.Y. 2017-18.
4. The Registry has pointed out that the appeal is time barred by 300 days. The assessee has filed an application for condonation of delay. In the application, the assessee has pleaded
S.A. No. 9/PAT/2024 (A.Y. 2017-2018) (in Assessment year: 2017-2018 Lal Bahadur Pandey that he came to know about the impugned order of the ld. CIT(Appeals) on 20.07.2024 and after consulting his Counsel, this appeal has been filed before the Tribunal. We find that the stand of the assessee is that the impugned order was not served upon him physically and he could not lay his hands on the impugned order earlier in time.
We have heard both the parties on the application for condonation of delay. 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
S.A. No. 9/PAT/2024 (A.Y. 2017-2018) (in Assessment year: 2017-2018 Lal Bahadur Pandey 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.
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.
When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot
S.A. No. 9/PAT/2024 (A.Y. 2017-2018) (in Assessment year: 2017-2018 Lal Bahadur Pandey 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.
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 5
S.A. No. 9/PAT/2024 (A.Y. 2017-2018) (in Assessment year: 2017-2018 Lal Bahadur Pandey 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 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”.
S.A. No. 9/PAT/2024 (A.Y. 2017-2018) (in Assessment year: 2017-2018 Lal Bahadur Pandey 7. 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 above, if we examine the facts of the present case, then it would reveal that the impugned order of the ld. CIT(Appeals) is not sustainable on merit because ld. CIT(Appeals) failed to adhere the mandatory procedure contemplated in sub- clause (6) of section 250. It is also not discernable whether this order served upon the assessee or not. Since it was an ex-parte order, it can easily be construed that it must have not been served upon the assessee. There will be no gain to the assessee, if he intentionally makes this appeal time barred. Therefore, we condone the delay and proceed to decide the appeal on merit.
Sub-section (6) of section 250 contemplates that ld. CIT would state the point in dispute and thereafter record reasons on those points in support of his conclusion. In the present case, ld. CIT(Appeals) failed to call for the assessment record and other material. He simply dismissed the appeal for want of prosecution. It is not a right course. Therefore, we set aside the impugned order of the ld. CIT(Appeals) and set aside all these issues to the file of 7
S.A. No. 9/PAT/2024 (A.Y. 2017-2018) (in Assessment year: 2017-2018 Lal Bahadur Pandey ld. CIT(Appeals) for fresh adjudication. The ld. CIT(Appeals) shall decide the appeal on merit after providing due opportunity of hearing to the assessee.