HIMANSHU BHOGILAL PATEL,AHMEDABAD vs. ITO, WARD-5(2)(1), AHMEDABAD

O R D E R

PER Ms. MADHUMITA ROY - JM:

2. The fact relating to the case is this that there is a delay of 37 days in filing the first appeal before the Ld. CIT(A). The appellant, therefore, made an application for condonation of delay on 24.02.2018. The appellant is a Non-Resident Indian, living in USA who got the copy of the order passed by the Ld. ITO from his neighbor and then appointed the Chartered

Himanshu Bhogilal Patel vs. ITO Asst. Year –2010-11 - 2 - Accountant for taking steps in the matter. The copy of the invoices of share transaction being the documentary proof of transaction in question for F.Y. 2006-07 as required by the said Chartered Accountant was received late from the share broker of the appellant. He, therefore, was not able to file the appeal before the Ld. CIT(A) within the prescribed time as of the explanation made by the assessee. However, such contention of the assessee was not found feasible and the application for condonation of delay was rejected. Consequently, the addition was confirmed. The assessee has come up in appeal before us challenging the said order.

On the other hand, the Ld. DR relied upon the order passed by the authorities below.

Himanshu Bhogilal Patel vs. ITO Asst. Year –2010-11 - 3 - discussed in the preceding paragraph though not explained the delay on day to day basis. The said explanation could have been accepted by the Ld. CIT(A) at least taking into consideration the short period of 37 days only. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an equitable manner. Furthermore, the legislature has conferred the power to condone delay by enacting Section 51 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to the parties by disposing of matters on ‘merits’. The expression ‘sufficient cause’ employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. Therefore, it is expected that the authority also should have a justifiably liberal approach in matters filed before it. In this respect we would like to refer the judgment passed by the Hon’ble Apex Court in the matter of Collector Land Acquisition vs. Mst. Katiji & Ors 1987 AIR 1353, 1987 SCR (2) 387. Where while condoning the delay the Hon’ble Apex Court observed as follows:-

Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908. may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

Himanshu Bhogilal Patel vs. ITO Asst. Year –2010-11 - 4 -

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.

4. 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 because it is capable of removing injustice and is expected to do so.

Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a liti-gant, are accorded the same treatment and the law is admin- istered in an even handed manner. There is no warrant for according a stepmotherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experi- ence shows that on account of an impersonal machinary (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the in- herited bureaucratic methodology imbued with the note-mak-ing, file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more diffi-cult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "suffi-cient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on mertis in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time barred, is therefore. set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides. Appeal is allowed accordingly. No costs.”

Since we have already observed that the explanation rendered by the assessee for filing the appeal beyond limitation period seems to be genuine meaning thereby ‘sufficient cause’ being reflected from such explanation which demands such delay to be condoned. Keeping in view

Himanshu Bhogilal Patel vs. ITO Asst. Year –2010-11 - 5 - the litigant pain our such finding is further been strengthen by the essence enumerated from the ratio laid down and the observation made in the judgment as cited above and hence respectfully relying upon the same we condone the delay in preferring the appeal by the assessee before the Ld. CIT(A).

Since the appeal is not decided on merit we set-aside the issue to the file of the Ld. CIT(A) to adjudicate the same afresh upon giving a reasonable opportunity of being heard to the assessee and also upon taking into consideration the evidence which the assessee may choose to file before the Ld. CIT(A).