NAINA DEVI MERCHANTS (P) LTD,KOLKATA vs. ITO, WARD-1(2), KOLKATA

The Registry has pointed out that appeal is time-barred by 1048 days. In order to explain the delay, the assessee has filed an application for condonation of delay and

The ld. Counsel for the assessee submitted that the ld CIT(A) disposed off The ld. Counsel for the assessee submitted that the ld CIT(A) disposed off The ld. Counsel for the assessee submitted that the ld CIT(A) disposed off these appeals by ex-parte orders as no one appeared on the dates fixed for hearings. parte orders as no one appeared on the dates fixed for hearings. parte orders as no one appeared on the dates fixed for hearings. The counsel of the assessee submitted that assessee’s tax counsel e submitted that assessee’s tax counsel Shri Shri Paras Kochar Advocate was engaged by the assesse to attend the appeal before the ld CIT(A) who Advocate was engaged by the assesse to attend the appeal before the ld CIT(A) who Advocate was engaged by the assesse to attend the appeal before the ld CIT(A) who could not attend the hearing due to his being could not attend the hearing due to his being sick and bed ridden due to bed ridden due to serious

On the other hand, ld. D.R. contended that the assessee should be vigilant about all the issues relating to income-tax proceedings. The ld Dr argued that the delay in filing the appeal is not property explained and therefore the appeals may kindly be dismissed.

We have duly considered the rival contentions and gone through the record carefully. We are mindful of the provisions of sub-section 5 of Section 253 which 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 this Section has also been used identically in sub-Section 3 of Section 249 of the Act, which provides power to the Id. Commissioner to condone the delay in filing of the appeal before the Commissioner. Similarly, it has been used in Section 5 of the Indian Limitation Act, 1963. Whenever interpretation and consideration of this expression has fallen for consideration before the Hon'ble High Courts as well as before the Hon'ble Supreme Court then, the Hon'ble Courts were unanimous in their conclusion that this expression has to be construed 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.

Similarly, we would like to make reference to authoritative pronouncement of Hon'ble Supreme Court in the case of N.Balakrishnan Vs. M. Krishnamurthy (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 tliat in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn

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 Hon'ble Courts are unanimous in their approach to propound that whenever the reasons assigned by an applicant for explaining the 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 basically the appeal has been filed after 1048 days of the ld. CIT’s order but almost two years is attributable to COVID period, i.e. 23.02.2020 upto March, 2022. This appeal has been presented before the Tribunal on 03.03.2022. If credit of number of days allowed by the Hon’ble Supreme Court in its order dated September 23, 2021 in Miscellaneous Application No. 665 of 2021 in SMW(C) No. 3 of 2020 regarding cognizance for extension of limitation, even then there is substantial delay at the part of the assessee but we are of the view that the delay is for sufficient and reasonable cause. Moreover, making the appeal time-barred has not been used by the assessee as a tactics to avoid the litigation with the Revenue because such strategy would not give any benefit to the assessee in this type of litigation. Therefore, we condone the delay and proceed to decide the appeal on merit.

At the outset, the Ld. Counsel for the assessee submitted that the Ld. CIT(A) has decided the appeal ex-parte as the assessee could not appear on the various occasions when the Ld. CIT(A) fixed the appeals for hearing. The Ld. Counsel submitted that the notices sent by the Ld. CIT(A) were not received by the assessee

The Ld. D.R on the other hand strongly objected the prayers of the Ld. A.R by submitting that despite several opportunities granted the assessee did not appear and therefore the said request of the counsel of the assessee may kindly be dismissed.

After hearing the rival parties and perusing the material on record, we observe that the assessee’s appeal was decided ex-parte when the assessee failed to turn up on the dates fixed for hearings and now therefore in the interest of justice and fair play, the assessee deserves to be given one more opportunity to defend its case before the Ld. CIT(A) on merits. Accordingly we restore the appeal to the file of the Ld. CIT(A) with the directions to decide the same on merits after affording the assessee a reasonable opportunity of hearing to the assessee. Simultaneously we also direct the assessee to cooperate in the disposal of this appeal.

In the result, the appeal of the assessee is allowed for statistical purposes.