SHRI KALU RAM JAT,JAIPUR vs. ADDITIONAL COMMISSIONER OF INCOME TAX, JAIPUR

It was submitted by the ld AR that the appellant has opted for Vivid Se Vishwas Scheme in this case, which has been approved/accepted and Form 3 has been issued but with the condition that order of condonation of delay be filed along with Form 4 in due course. It was submitted that the order of CIT(A) in this case was passed on 12.1.2015 however it was not served on the appellant in due course, hence an application for obtaining the 2 Kalu Ram Jat, Jaipur vs. Addl. CIT, Jaipur certified copy of the order was made to the authorities, and thus a certified true copy of the order was issued on 28.11.2017. Thereafter, the second appeal before the Tribunal was filed on 25.1.2018, which is thus filed within the prescribed time limit of 60 days from the date of order being appealed is communicated, in terms of the provisions of section 253(3) of the Income Tax Act. It was submitted that there was thus no delay in filing the present appeal. It was further submitted that even where it is held that there has been a delay, 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 and which has also been accepted in-principle by the competent authority and Form 3 has been issued though with a condition that the order for condonation of delay may be filed along with Form 4. 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. 3 Kalu Ram Jat, Jaipur vs. Addl. CIT, Jaipur 3. Per contra, the ld. DR submitted that there is a substantial delay 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 company for the delay in filing the present appeal. She accordingly opposed condoning the delay in filing the present appeal. At the same time, she fairly submitted that the Form 3 has been issued by the Competent Authority accepting the eligibility of the assessee for the settlement of dispute as per prescribed VSV scheme of settlement and determining the amount of tax liability which has to be deposited by the assessee and only condition which has been stated is that “Form 3 is issued conditionally subject to the applicant obtaining order of condonation of delay from the relevant appellate authority.”

We have heard the rival contentions and purused the material available on record. In the instant case, it has been stated on behalf of the assessee that the order so passed by the ld CIT(A) has not been served on him and thereafter, the assessee sought a certified copy of the order so passed which was issued on 28.11.2017 and thereafter, the appeal was filed before the Tribunal on 25.1.2018 which is well within the limitation period. The limitation period for filing the appeal before the Tribunal is 60 days from the date when the order being appealed against was communicated to the assessee. The emphasis therefore is on communication of the order. In the instant case, it has been contended that the order so passed by the ld CIT(A) was only communicated or served on the assessee by way of a certified copy on 28.11.2017 and not earlier and therefore, the appeal so filed is within the limitation period as so prescribed. However, on perusal of the certified copy so obtained by the assessee, we find that there is a 4 Kalu Ram Jat, Jaipur vs. Addl. CIT, Jaipur assertion by the ld CIT(A) that the original order has been dispatched through registered A.D on 16.01.2015 and now as requested, a certified copy has been provided to the assessee. The question is whether the said order sent through registered A.D has been delivered at the given address or has been returned undelivered and where the same has not returned unserved, a presumption will arise that the same has been communicated to the assessee at the time of dispatch. There is however no sufficient material on record as to whether the original order has returned back unserved by the postal department. Therefore, the plea of the assessee that the original order has not been served on him cannot be decided and is left open in absence of requisite material on record.

Having said that, we find that as soon as the assessee became aware of the passing of the aforesaid order, he applied for a certified copy and filed the present appeal, there is thus no culpable negligence or malafide on the part of the assessee in delayed filing of the present appeal and he does not stand to benefit by resorting to such delay more so considering the fact that he has applied for settlement of present dispute and payment of appropriate taxes. Further, no prejudice is being caused to the Revenue where the present appeal is admitted as the competent authority has accepted the assessee’s petition and given its in-principle approval for settlement of tax dispute and Form 3 has been issued. 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 Courts, where substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred. In the 5 Kalu Ram Jat, Jaipur vs. Addl. CIT, Jaipur instant case, the cause of substantial justice will be served by allowing the assessee to avail the benefits of the settlement scheme to which the competent authority has already given its in-principle approval.

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.

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