M/S GEETANJALI ESTATE PVT LTD,PATNA vs PR. CIT-1, PATNA

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 present appeal is directed at the instance of assessee against the order of ld. Principal Commissioner of Income Tax-1, Patna dated 19th March, 2018 passed in A.Y. 2013-14.

ITA No. 20/PAT/2019 Assessment Year: 2013-2014 M/s. Geetanjali Estate Pvt. Ltd. 2. The present appeal is time barred by 243 days. In order to explain the delay in filing the appeal, the assessee has filed an application, which reads as under:-

ITA No. 20/PAT/2019 Assessment Year: 2013-2014 M/s. Geetanjali Estate Pvt. Ltd. 3. A perusal of the above application would reveal that only plea of the assessee is that the impugned order was not served upon it and, therefore, it could not file the appeal. We have directed the ld. CIT (DR) to call for a status report from the ld. CIT whether the impugned order was served or not. The ld. CIT(DR) has filed a written submission along with copy of the letter written by ITO (Hqrs.) (Admn.) [For: Pr. Commissioner of Income Tax-1, Patna] as well as copy of the Speed Post receipt exhibiting the issuance of the copy of the order on the address given by the assessee. The written submission filed by the ld. CIT(DR) is reproduced as under:-

ITA No. 20/PAT/2019 Assessment Year: 2013-2014 M/s. Geetanjali Estate Pvt. Ltd.

In response to this letter, ld. Counsel for the assessee has filed written submission. He was also placed on record copy of the order-sheets of the ld. CIT. 5

ITA No. 20/PAT/2019 Assessment Year: 2013-2014 M/s. Geetanjali Estate Pvt. Ltd. 5. With the assistance of the ld. Representatives, 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 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

ITA No. 20/PAT/2019 Assessment Year: 2013-2014 M/s. Geetanjali Estate Pvt. Ltd. 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 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

ITA No. 20/PAT/2019 Assessment Year: 2013-2014 M/s. Geetanjali Estate Pvt. Ltd. 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 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 8

ITA No. 20/PAT/2019 Assessment Year: 2013-2014 M/s. Geetanjali Estate Pvt. Ltd. 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”.

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, we have examined the record carefully. The stand of the ld. Counsel for the assessee is that in the Interim Order-sheet, nowhere it has been recorded that copy was served upon the assessee. The alleged Postal receipts do not depict that order was actually been served upon the assessee or not. Therefore, the delay in filing the appeal be condoned.

ITA No. 20/PAT/2019 Assessment Year: 2013-2014 M/s. Geetanjali Estate Pvt. Ltd. 9. On due consideration of the record, we find that Shri N.K. Sinha, Advocate, attended the proceeding undertaken under section 263 by the ld. CIT. After the revisional order passed by the ld. CIT, ld. Assessing Officer has commenced the assessment proceeding in order to give effect to the directions of the ld. Commissioner under section 263 of the Income Tax Act. He has issued a notice to the assessee, which was duly replied in the second attempt. Shri N.K. Sinha duly appeared before the ld. Assessing Officer. It means that the assessee has participated the proceedings. Thereafter dissatisfied with the assessment order, the assessee filed an appeal before the ld. CIT(Appeals).

10.

As far as the objection of the ld. Counsel for the assessee on Postal receipt is concerned, we find that the order was issued on the address given by the assessee in the revenue report. This is the address on which show- cause notice under section 263 was issued and in response to that ld. Counsel Shri N.K. Sinha participated the revisional proceeding before the ld. CIT. The ld. Counsel for the assessee at the time of hearing took us through this Postal receipt and submitted that it mentions an expression “Collection Agent Code”. This expression does not indicate whether this order was given to the Postal Authority by the Department or not. It is pertinent to note that it appears there is a practice in the

ITA No. 20/PAT/2019 Assessment Year: 2013-2014 M/s. Geetanjali Estate Pvt. Ltd. Government Office, where authorized postal agents collect the post. It is being available in ITAT Kolkata also. The Registry would prepare a list of letters recorded them in a register and then handed over all the envelops alongwith list, which is being collected by some authorized agents and deposited in the Post Office. The agents would give due receipts issued by the Postal Authorities along with the list and the receipts of letters are re-consigned by the staff in the Office. The order was served upon the assessee.

11.

It is also pertinent to note that the assessee was always in the knowledge of this order because it has participated the revisional proceeding before the ld. CIT. It has again participated the assessment proceeding in pursuance of revisional order of the ld. CIT passed under section 263. Therefore, this conduct shows that every time it was in the knowledge of the assessee. That such an order has been passed against it. The written submission filed by the ld. CIT (DR) indicates that there was scrutiny assessment in the first round, which was passed on 18.02.2016 when the second round of assessment order is being undertaken by the ld. Assessing Officer, then assessee must be having knowledge that earlier assessment order has been set aside in the 263 proceedings. Therefore, there is no plausible explanation at the end of the assessee to condone the delay. We do not

ITA No. 20/PAT/2019 Assessment Year: 2013-2014 M/s. Geetanjali Estate Pvt. Ltd. find any merit in the application of the assessee for condonation of delay. This appeal is dismissed on the ground that it is time barred by 243 days.

12.

In the result, the appeal of the assessee is dismissed. Order pronounced in the open Court on 05.07.2024.

Sd/- Sd/- (Manish Borad) (Rajpal Yadav) Accountant Member Vice-President Kolkata, the 5th day of July, 2024 Copies to :(1) M/s. Geetanjali Estate Pvt. Ltd., Pal Market, Raja Bazar, Bailey Road, Patna

(2) Principal Commissioner of Income Tax-1, Patna (3) Commissioner of Income Tax- ; (4) The Departmental Representative (5) Guard File TRUE COPY By order

Assistant Registrar, Income Tax Appellate Tribunal, Kolkata Benches, Kolkata Laha/Sr. P.S.

M/S GEETANJALI ESTATE PVT LTD,PATNA vs. PR. CIT-1, PATNA