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Income Tax Appellate Tribunal, AHMEDABAD – BENCH ‘SMC’
Before: SHRI RAJPAL YADAV & SHRI RIFAUR RAHMAN
आदेश/O R D E R
PER RAJPAL YADAV, JUDICIAL MEMBER:
Present appeal by the assessee is against order of the ld.CIT(A)-5, dated 18.7.2016 passed for the Asstt.Year 2012-13.
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.
ITA No.2485/Ahd/2017 2
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:
“1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
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.
ITA No.2485/Ahd/2017 3
"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:
“Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause"
ITA No.2485/Ahd/2017 4 under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi lain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss.”
We do not deem it necessary to re-cite or recapitulate the proposition laid down in other decisions. It is suffice to say that the Hon’ble Courts are unanimous in their approach to propound that whenever the reasons assigned by an applicant for explaining the condonation of delay, then such reasons are to be construed with a justice oriented approach.
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
ITA No.2485/Ahd/2017 5 ld.CIT(A). The ld.CIT(A) is directed to decide the appeal of the assessee on merit after providing reasonable opportunity of hearing to the assessee in accordance with law.
In the result, appeal of the assessee is allowed for statistical purpose.
Order pronounced in the Court on 18th June, 2019.
Sd/- Sd/- (RIFAUR RAHMAN) (RAJPAL YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER