VIJAY JAIKISHAN MASSAND,KOTA vs. ASSISTANT COMMISSIONER OF INCOME TAX, KOTA

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ITA 280/JPR/2018Status: DisposedITAT Jaipur16 March 2021AY 2011-127 pages
AI SummaryWithdrawn

What did the Tribunal hold?

The Tribunal condoned the delay, finding sufficient cause for the delay and prioritizing substantial justice over technicalities. However, since the assessee opted for the Vivad Se Vishwas Scheme and applied for withdrawal, the appeal was dismissed as withdrawn.

What were the facts?

The assessee filed an appeal with a delay of 263 days, citing depression and travel for treatment as reasons. The assessee also applied for the Vivad Se Vishwas Scheme to resolve the dispute.

What were the issues?

Whether the delay in filing the appeal can be condoned due to sufficient cause, and whether the appeal should be dismissed as withdrawn due to opting for the Vivad Se Vishwas Scheme.

Which sections of the Income-tax Act were involved?

Section 253(5)

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Income Tax Appellate Tribunal, JAIPUR BENCHES “A”, JAIPUR

Before: SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 280/JP/2018

For Appellant: Shri Saurabh Harsh (CA) jktLo dh vksj ls@
Hearing: 16/03/2021Pronounced: 16/03/2021

ORDER PER: SANDEEP GOSAIN, J.M. This appeal has been filed by the assessee against the order of the ld. CIT(A), Kota dated 21/03/2017 for the A.Y. 2011-12.

1.

2. 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 263 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 280/JP/2018_ Vijay Jaikishan Massand Vs ACIT 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 him to take appropriate action under Vivad Se Vishwas Scheme and it was therefore requested to consider the assessee’s condonation application.

4. In its condonation application, the assessee has submitted as under:

“The humble assessee appellant respectfully prays for the condonation of delay in the filling of Appeal for the following reason: 1. That the ld. CIT (Appeals) passed his order on 21.03.2017 which was served upon the assessee applicant on 11.04.2017.

2.

That the assessee appellant applicant is suffering from Agitating Depression and he was in Mumbai for his treatment during the time of service of the order passed by the ld. CIT (Appeal) and due to his travelling he failed to discuss the next step to be taken with his counsel.

3.

That immediately after returning to Kota and receipt of appeal order of ld. CIT(A), without any further delay, at the first opportunity, the assessee with the help of his counsels has filed this appeal before the Hon'ble Income Tax Appellate Tribunal, Jaipur Bench, Jaipur on 28.02.2018 with delay of 263 days.

4.

An Affidavit duly sworn in this regard with copies of medical record are also enclosed herewith. With this background, we request your honour to take stock of the situation in totality, take a lenient and human approach towards the humble assessee appellant as the delay was not intentional and was purely because of shortage of time due to travel and lack of understanding of the income tax proceedings.

3 ITA 280/JP/2018_ Vijay Jaikishan Massand Vs ACIT That in these circumstances we request your honour's to kindly condoned the delay and oblige.”

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.

6.

Per contra, the ld. DR submitted that there is a substantial delay of 263 days in filing the present appeal by the assessee and the application so filed

4 ITA 280/JP/2018_ Vijay Jaikishan Massand Vs ACIT 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.

7.

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 263 days. 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 is suffering from Agitating Depression and he was in Mumbai for his treatment during the time of service of the order passed by the ld. CIT (Appeal) and due to his travelling he failed to discuss the next step to be taken with his counsel, hence, the filing of the appeal was delayed. Immediately after returning to Kota and receipt of appeal order of ld. CIT(A), without any further delay, at the first opportunity, the assessee with the help of his counsels has filed this appeal before Bench on 28.02.2018 with delay of 263 days.

5 ITA 280/JP/2018_ Vijay Jaikishan Massand Vs ACIT 8. 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 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

6 ITA 280/JP/2018_ Vijay Jaikishan Massand Vs ACIT 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.

9.

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.

10.

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 7 ITA 280/JP/2018_ Vijay Jaikishan Massand Vs ACIT appeal within the prescribed time and the appeal is hereby admitted for adjudication on merits.

11.

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.

12.

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

Order pronounced in the open court on 16th March, 2021.

Sd/- Sd/- ¼foØe flag ;kno½ ¼lanhi x®lkÃa½ (VIKRAM SINGH YADAV) (SANDEEP GOSAIN) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:-16/03/2021 *Ranjan आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू vihykFkhZ@The Appellant- Shri Vijay Jaikishan Massand, Kota. 1. izR;FkhZ@ The Respondent- The A.C.I.T., Circle-2, Kota. 2. vk;dj vk;qDr@ CIT 3. vk;dj vk;qDr¼vihy½@The CIT(A) 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA No. 280/JP/2018) 6. vkns'kkuqlkj@ By order,

सहायक पंजीकार@Aेेज. त्महपेजतंत

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