ATULKUMAR KIRTILAL SHAH,,AHMEDABAD vs. ITO, WARD-5(3)(1),, AHMEDABAD

In response to the notice of hearing, none has come present on behalf of the assessee. With the assistance of the ld.DR, we have gone through the record carefully and proceded to dispose of the appeal ex parte qua the assessee.

It is discernible from the record that there was delay of 28 days in filing appeal before the ld.CIT(A). The ld.CIT(A) did not condone the delay and dismissed the appeal being time barred. The ld.CIT(A) has reproduced relevant part of application for condonation of delay on page no.2 of the impugned order. With the assistance of the ld.DR we have gone through the explanation given by the assessee. The assessee has pleaded that on account of ill-health, he could not file appeal well in time. We have considered contentions of the assessee. Sub-section (3) of section 249 contemplates that the ld.CIT(A) may admit an appeal after expiry of relevant period of limitation, if he satisfies that there was a sufficient cause for not present it within that period. The expression “sufficient” cause employed in sub-section 5 of section 253 which authorise Tribunal to condone the delay in filing appeal or permit filing of memorandum of cross objection. Similarly, it has been used in section 5 of Indian Limitation Act, 1963. Whenever interpretation and construction of this expression has fallen for consideration before Hon’ble High Court as well as before the Hon’ble Supreme Court, then, Hon’ble Court were unanimous in their conclusion that this expression is to be used liberally. We may make reference to the following observations of the Hon’ble Supreme court from the decision in the case of Collector Land Acquisition Vs. Mst. Katiji & Others, 1987 AIR 1353:

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.

"Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, 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.

There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.”

Similarly, we would like to make reference to authoritative pronouncement of Hon’ble Supreme Court in the case of N.Balakrishnan Vs. M. Krishnamurthy (supra). It reads as under:

In the light of the above, if we examine the explanation of the assessee, then it would reveal that small delay of 28 days occurred in filing appeal on account of ill-health. The assessee has pleaded that he has not made its appeal time barred by adopting delay tactics as a strategy to avoid litigation with the department. In other words, there is no mala fide intention at the end of the assessee for not filing appeal well in time. The ld.CIT(A) ought to have a taken a sympathetic view while considering application for condonation of delay. Therefore, we condone the delay and set aside the impugned order of the

In the result, appeal of the assessee is allowed for statistical purpose.