RAM KISHORE KHANDELWAL,JAIPUR vs. ITO, WARD-6(2), JAIPUR

The hearing of the appeal was concluded through video conference in view of the prevailing situation of Covid-19 Pandemic.

In this appeal, there is delay of 53 days in filing the present appeal. In this appeal also, the assesse has applied for withdrawal of this appeal. During the course of hearing, the ld AR submitted that the assessee has filed the present appeal against the order passed by the ld. CIT(A) alongwith an application seeking condonation of delay. It was submitted that the assessee

2 ITA 269/JP/2020_ Sh. Ram Kishore Khandelwal Vs ITO wishes to resolve this matter and has since moved an application under Vivad Se Vishwas Scheme, 2020. The A.O. has enquired about the status of the condonation of delay application filed before the Tribunal in order to take appropriate action under Vivad Se Vishwas Scheme and it was therefore requested to consider the assessee’s condonation application.

In his condonation application, the assessee has submitted as under:

It was submitted by the ld AR that there was no malafide or deliberate delay in filing the present appeal and in the interest of substantial justice, the delay in filing the present appeal may be condoned and the appeal be admitted for adjudication. It was further submitted that there is no prejudice

Per contra, the ld. DR submitted that there is a substantial delay of 53 days in filing the present appeal by the assessee and the application so filed by the assessee does not reflect any reasonable cause on the part of the assessee for the delay in filing the present appeal. She accordingly opposed condoning the delay in filing the present appeal.

We have heard the rival contentions and pursued the material available on record. There is no dispute and is an admitted fact that there has been a delay in filing the present appeal by 53 days. There is also no dispute that 4 ITA 269/JP/2020_ Sh. Ram Kishore Khandelwal Vs ITO under section 253(5) of the Act, the Tribunal may admit an appeal filed beyond the period of limitation where it is satisfied that there exists a sufficient cause on the part of the assessee for not presenting the appeal within the prescribed time. The explanation of the assessee therefore becomes relevant to determine whether the same reflects sufficient and reasonable cause on her part in not presenting the present appeal within the prescribed time. In the instant case, it has been stated by the assessee that due to lock down imposed by the State Government from 23th of March, 2020 and thereafter by the Central Government from 25th of March, 2020 due to Covid 19 which later got extended by the Government from time to time. Due to which, the appeal could not be filed on time before the Tribunal.

In case of Collector, Land Acquisition vs MST Katiji (Supra), the Hon'ble Supreme Court has held that the expression ‘Sufficient Cause’ employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner to sub-serves the ends of justice that being the life-purpose of the existence of the institution of Courts. It was further held by the Hon’ble Supreme Court that such liberal approach is adopted on one of the principles that 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 5 ITA 269/JP/2020_ Sh. Ram Kishore Khandelwal Vs ITO parties. Another principle laid down by the Hon’ble Supreme Court is that when substantial justice and technical considerations are pitted against each other, the 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. It was also held by the Hon’ble Supreme Court that there is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of male fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk. In the instant case, applying the same principles, we find that there is no culpable negligence or malafide on the part of the assessee in delayed filing of the present appeal and it does not stand to benefit by resorting to such delay more so considering the fact that it has applied for settlement of present dispute and payment of appropriate taxes. Therefore, in the factual matrix of the present case, we find that there exists sufficient and reasonable cause for condoning the delay in filing the present appeal and as held by the Hon’ble Supreme Court, where substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserved to be preferred.

In light of aforesaid discussions, in exercise of powers under section 253(5) of the Act, we hereby condone the delay in filing the present appeal as we are satisfied that there was sufficient cause for not presenting the 6 ITA 269/JP/2020_ Sh. Ram Kishore Khandelwal Vs ITO appeal within the prescribed time and the appeal is hereby admitted for adjudication on merits.

Since, the assessee has applied for withdrawal of this appeal on the ground that the assessee has opted Vivad Se Vishwas Scheme and the department has issued Form No. 3, therefore, we permit the assessee to withdraw this appeal.

In the result, this appeal filed by the assessee is dismissed as withdrawn.