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Income Tax Appellate Tribunal, “SMC” BENCH, AHMEDABAD
Before: SHRI PRADIP KUMAR KEDIA & SHRI MAHAVIR PRASAD
आदेश/O R D E R
PER PRADIP KUMAR KEDIA - AM:
The captioned appeals have been filed at the instance of the Assessee against the respective quantum and penalty orders of the Commissioner of Income Tax (Appeals)-5, Ahmedabad (‘CIT(A)’ in short), dated 21.03.2016 & 23.03.2016 arising in the assessment order dated 27.12.2013 and penalty order dated 27.05.2014 passed by the Assessing Officer (AO) under s. 143(3) r.w.s. 147 and under s. 271(1)(c) of the Income Tax Act, 1961 (the Act) concerning AY 2010-11.
ITA Nos. 1305 & 1306/Ahd/16 [Smt. Rinaben Sunit Choksi vs. ITO] A.Y. 2010-11 - 2 - 2. When the matter was called for hearing, the learned AR for the assessee submitted with reference to ITA No. 1305/Ahd/2016 that CIT(A) has refused to adjudicate the appeal on merits on the ground that appeal has been filed belatedly by five months. In the context, the learned AR submitted that the assessee has filed affidavit narrating the reasons for small delay and further submitted that the CIT(A) ought to have admitted the appeal by exercising the statutory discretion vested in it for condonation of delay.
We have perused the affidavit dated 16.11.2018 filed by the assessee in this regard. As per the sworn affidavit statement, the assessee is a housewife and did not have any taxable income for the AY 2010-11. It was affirmed that the responsible person handling the income tax matters has not forwarded the order passed by the AO under s.143(3) r.w.s. 147 of the Act dated 27.12.2013 to the assessee due to old age and peculiar health problem. This has resulted in delay of five months. We find that the assessee has given reasonable explanation having regard to the background of the assessee. The hon’ble High Court in the case of Collector of land acquisition vs. Mst. Katiji & Ors. 167 ITR 471 (SC) has laid down the guiding principles for adopting a liberal approach in the matter of condonation of delay. The principles laid down by the Hon’ble Supreme Court are reproduced hereunder:
“1. Ordinarily, a litigant does not stand to benefit by lodging an appeal late. 2. 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. 1. " Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had
ITA Nos. 1305 & 1306/Ahd/16 [Smt. Rinaben Sunit Choksi vs. ITO] A.Y. 2010-11 - 3 - sufficient cause for not preferring the appeal or making the application within such period." 3. "Every day's delay must be explained” does not mean that 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 and pragmatic manner. 4. 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. 5. 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 serious risk. 6. It must be grasped that the 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.”
The principles enunciated by the Hon’ble Courts say it all.
In the light of facts and circumstances, we are of the view that the assessee has sufficiently discharged its burden for small delay. Consequently, we direct the CIT(A) to condone the delay occurred in filing the appeal before it and admit the appeal for adjudication on merits in accordance with law. Accordingly, appeal in ITA No. 1305/Ahd/2016 is restored to the file of the CIT(A) for de novo adjudication on merits in accordance with law after giving fair opportunity to the assessee.
In the result, quantum appeal of the assessee in ITA No. 1305/Ahd/2016 is allowed for statistical purposes.
The appeal in ITA No. 1306/Ahd/2016 is with reference to penalty under s.271(1)(c) of the Act arising from the quantum appeal dismissed in limine as appealed in ITA No. 1305/Ahd/2016. In the light of the restoration of the quantum appeal, the penalty order
ITA Nos. 1305 & 1306/Ahd/16 [Smt. Rinaben Sunit Choksi vs. ITO] A.Y. 2010-11 - 4 - passed by the CIT(A) is also set aside and restored back for fresh adjudication having regard to the findings obtained in the quantum proceedings and in accordance with law after giving reasonable opportunity to the assessee.
In the result, penalty appeal of the assessee in ITA No. 1306/Ahd/2016 is also allowed for statistical purposes.
In the combined result, both the appeals filed by the assessee are allowed for statistical purposes.
This Order pronounced in Open Court on 15/02/2019
Sd/- Sd/- (MAHAVIR PRASAD) (PRADIP KUMAR KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad: Dated 15/02/2019 S. K. SINHA आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. राज�व / Revenue 2. आवेदक / Assessee 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त- अपील / CIT (A) 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड� फाइल / Guard file. By order/आदेश से,
उप/सहायक पंजीकार आयकर अपील�य अ�धकरण, अहमदाबाद ।