SMT. RICHA GOYAL,JAIPUR vs. ITO, WARD-6(3), 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 01 (one) day 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 2 ITA 1371/JP/2019_ Richa Goyal Vs ITO the assessee 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 for her to take appropriate action under Vivad Se Vishwas Scheme and it was therefore requested to consider the assessee’s condonation application.

In her condonation application, the assessee has submitted as under: “Order u/s 143(3) r.w.s 147 was passed on 22nd December, 2018. Aggrieved by the said order, the assessee filed appeal before Ld. CIT(A) who dismissed the appeal of the assessee vide order dated 18th October, 2019. The assessee received the said order on 19th October, 2019 Accordingly, the appeal was filed on 18th December, 2019.

The assessee opted for Vivad se Vishwas Scheme issued by the designated authority states that there was delay in filing of the appeal. It appears that the department has made calculations from the date of issuance of order and, therefore, delay of one day in filing of appeal has taken.

Per contra, the ld. DR submitted that there is a substantial delay of 01 day 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 1371/JP/2019_ Richa Goyal 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 01 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 his part in not presenting the present appeal within the prescribed time. In the instant case, it has been stated by the assessee that the department has issued Form 3 stating that there was delay in filing of appeal. Therefore, it appears that the department has made calculation from the date when order was passed. With the said calculation a delay of 01 day has taken place.

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 1371/JP/2019_ Richa Goyal 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

Though assessment and penalty proceedings are independent proceedings but at the same time, there is a close connection between the two proceedings and where the assessee has filed the present appeal apparently to safeguard its rights in relation to the penalty proceedings, the assessee cannot be denied and deprived of his legal defence and pleadings which he may take as so advised in the course of the penalty proceedings. Therefore, without going into the merits of levy of penalty which is not the subject matter of present dispute, where the assessee wishes to plead against levy of penalty, the Tribunal cannot be oblivious of its duty by denying such right to the assessee on mere technicality of delay in filing the present appeal.

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 7 ITA 1371/JP/2019_ Richa Goyal Vs ITO 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.