Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, JAIPUR BENCHES “B”, JAIPUR
Before: SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 12/JP/2020
ORDER PER: SANDEEP GOSAIN, J.M. This appeal has been filed by the assessee against the order of the ld. CIT(A), Ajmer dated 26/09/2019 for the A.Y. 2011-12.
The hearing of the appeal was concluded through video conference in view of the prevailing situation of Covid-19 Pandemic.
3. In this appeal, there is delay of 38 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 12/JP/2020_ Manju Devi Jain 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.
4. In her condonation application, the assessee has submitted as under:
“1. That being aggrieved by the order of ld. Commissioner (Appeals) dated 26.09.2019 the appellant is being filed the appeal under section 253 of the Income Tax Act, before the Hon'ble Income-tax Appellate Tribunal.
2. That the copy of the order dated 26.09.2019 passed by the Learned CIT (A) was received by the assesse Appellant on 30.09.2019.
That assesse could not deliver such order to counsel to prepare and filling appeal against such with in due time due to her over sight- ness, when department pressed demand upon her then she contacted to the counsel for preparing and filling the appeal, an affidavit is being attached to this effect marked as Annexure-'1',
That in the aforesaid circumstances due to which the delay in filing the appeal was caused, was un-intentional and inadvertent.
It is humbly submitted that it is in the interest of justice that the delay in filing the appeal may kindly be condoned.
That this Hon'ble ITAT may kindly pass such order & further order as it may deem fit & proper in the facts and circumstances of the case.”
3 ITA 12/JP/2020_ Manju Devi Jain Vs ITO 5. 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 which will be caused to the department as the assessee has already moved an application for settlement of present dispute and payment of taxes. In support, reliance was placed on the Hon’ble Delhi High Court’s decision in case of HL Malhotra & Company Pvt. Ltd. Vs DCIT, Circle-12, New Delhi (ITA No. 211/2020 & CM Appeals 32045-32047/2020 dated 22nd December, 2020) wherein delay of 498 days in filing was condoned by the Hon’ble Delhi High Court and it was held that in absence of anything male fide or deliberate delay as a dilatory tactic, the Court should normally condone the delay as the intent is always to promote substantial justice following the Hon’ble Supreme Court decisions in the case of Collector, Land Acquisition, Anantnag & Anr. Vs Mst. Katiji and others (1987) 2 SCC 107 and N. Balakrishnan Vs M. Krishnamurthy 1998 (7) SCC 123.
Per contra, the ld. DR submitted that there is a substantial delay of 38 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 4 ITA 12/JP/2020_ Manju Devi Jain Vs ITO 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 38 day. There is also no dispute that 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 the assesse could not deliver order to counsel to prepare and filling appeal within due time due to her oversight-ness, when department pressed demand upon her then she contacted to the counsel for preparing and filling the appeal.
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 5 ITA 12/JP/2020_ Manju Devi Jain Vs ITO 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 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
6 ITA 12/JP/2020_ Manju Devi Jain Vs ITO 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 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.
Order pronounced in the open court on 22nd June, 2021.