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Income Tax Appellate Tribunal, JAIPUR BENCHES ‘B’ JAIPUR
Before: SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 16/JP/2020
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES ‘B’ JAIPUR Jh lanhi xkslkbZ] U;kf;d lnL; ,oa Jh foØe flag ;kno] ys[kk lnL; ds le{k BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 16/JP/2020 fu/kZkj.k o"kZ@Assessment Years: 2015-16,(24Q 4th Qtr.) AEN, cuke D.C.I.T., CPC Vs. Rural, AVVNL, (TDS), Colony Kishangarh, Ajmer, Ghaziabad. Rajasthan. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AACCA 8562 E vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Ankur Salagia (CA) jktLo dh vksj ls@ Revenue by : Smt. Rooni Paul (Addl.CIT) lquokbZ dh rkjh[k@ Date of Hearing : 22/02/2021 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 03/03/2021 vkns'k@ ORDER PER: SANDEEP GOSAIN, J.M. This is the appeal filed by the assessee against the order of the ld. CIT(A), Ajmer dated 01/07/2019 for the 2015-16 (24Q 4th Qtr.).
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 67 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
2 ITA No. 16/JP/2020 AEN Rural AVVNL Vs ACIT(TDS) 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 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.
In its condonation application, the assessee company has submitted as under:
“With reference to the above captioned matter, the applicant/appellant most humbly begs to submit the following reasons for your Honours' kind perusal:
That original appeal documents were filled on date 07/01/2020 with the honorable office.
That the delay in filing of Appeal is 67 day.
That the delay in filing the appeal was due to the fact that the office is in village and our consultant was situated in Ajmer, and also our Head office is situated in Ajmer for necessary approvals. resulted in delay in collecting and signed and posted later also concerned Babu/Officer Was on leave. hence the filing of the appeal was delayed.
3 ITA No. 16/JP/2020 AEN Rural AVVNL Vs ACIT(TDS) 4. That the appellant has got sincere desire and willingness to prosecute his appeal and had no intention to delay his case, and is keen to assist the Hon'ble chair in most appropriate and proper manner and there was most reasonable/sufficient cause beyond the control of the appellant which has resulted into delay in submission of appeal, if any.
The appellant cite judgment in case of in support of his contention:
(a) Improvement Trust v. Ujagar Singh [2010] 6 SCC 786
(b) Poonja Arcade v. Asstt. CIT [2010] 326 ITR 123/191 Taxman 291 (Kar.)
(c) Vedabai Vaijayanatabai Baburao Patil v. Shantaram Baburao Patil [2002] 253 ITR 798/122 Taxman 11 4 (SC)
In view of the fact that the appeal was filed after the limitation period but the same was due to the reason beyond the control of the appellant/applicant, it is requested that delay in filing the appeal be condoned.
Also the applicant/appellant cited judgment in case of State of Bihar Vs Kamshewar Prasad Singh (AIR 2000 SC 2006) wherein it was ruled that in the matter of condonation of delay, a liberal approach be adopted when such delay can result in a meritorious matter being thrown out and thus defeat the cause of justice.” 5. It was submitted by the ld AR that being a public sector undertaking, 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
4 ITA No. 16/JP/2020 AEN Rural AVVNL Vs ACIT(TDS) 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 67 days in filing the present appeal by the assessee company and the application so filed by the assessee company does not reflect any reasonable cause on the part of the assessee company for the delay in filing the present appeal. He submitted that the fact that the assessee company is a public sector undertaking will not make any difference and the test of sufficient and reasonable cause need to be equally satisfied by it. She accordingly opposed condoning the delay in filing the present appeal.
5 ITA No. 16/JP/2020 AEN Rural AVVNL Vs ACIT(TDS) 7. We have heard the rival contentions and purused the material available on record. There is no dispute and is an admitted fact that there has been a delay in filing the present appeals by 67 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 company for not presenting the appeal within the prescribed time. The explanation of the assessee company therefore becomes relevant to determine whether the same reflects sufficient and reasonable cause on its part in not presenting the present appeal within the prescribed time. In the instant case, it has been stated by the assessee company, the office is in village and our consultant was situated at Ajmer and also our head office is situated in Ajmer for necessary approvals, resulted in delay in collecting and signed and posted later, also concerned Babu/Officer was on leave, hence, the filing of the appeal was delayed. However, as soon as assessee company came to know of subsequent penalty order being passed against it, it consulted its Counsel and basis his advice, the present appeal has been filed though with a delay of 67 days.
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
6 ITA No. 16/JP/2020 AEN Rural AVVNL Vs ACIT(TDS) 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 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
7 ITA No. 16/JP/2020 AEN Rural AVVNL Vs ACIT(TDS) 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.
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.
8 ITA No. 16/JP/2020 AEN Rural AVVNL Vs ACIT(TDS) 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.
In the result, this appeal filed by the assessee is dismissed as withdrawn.
Order pronounced in the open Court on 03/03/2021.
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:- 03/03/2021 *Ranjan आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू vihykFkhZ@The Appellant- AEN, Rural, AVVNL, Ajmer. 1. 2. izR;FkhZ@ The Respondent- The D.C.I.T., CPC (TDS), Ghaziabad. 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A) विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत. 5. 6. xkMZ QkbZy@ Guard File {ITA No. 16 /JP/2020} vkns'kkuqlkj@ By order,
सहायक पंजीकार@Aेेज. त्महपेजतंत