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Income Tax Appellate Tribunal, “SMC” “A’’ BENCH: BANGALORE
Before: SHRI CHANDRA POOJARI
PER CHANDRA POOJARI, ACCOUNTANT MEMBER:
This appeal by assessee is directed against the order of CIT(A) dated 7.9.2021. There was a delay of 13 days in filing the appeal before Ld. CIT(A), which was not condoned and he dismissed the appeal in limine. Against this, the assessee is in appeal before us by way of following grounds:- 1. “The Ld. CT(A) erred in dismissing the appeal holding the explanation given for 13 days delay in filing of appeal does not hold water. Hence, the non admission of the appeal u/s 249(3) be held as erroneous.
Page 2 of 4 2. The learned CIT(A) erred in not adjudicating on the grounds of appeal of the appellant, in particular Ground No.3 which is covered in appellant’s favour by Coordinate bench of the Tribunal.”
The assessee explained the delay as follows:-
“I received the Rectification order dated 27.11.2019 on 19.12.2019 through e-mail and forwarded the same immediately to my CAs Rao and Swami to file an appeal against the said order. I understand from their office that they could not take up my appeal immediately as they were occupied with time barring assessments in December and thereafter there were many appeals to be filed based on the assessment orders passed in December 2019. Hence, it was not possible for the appeal papers to be ready within the due date of 18.1.2020. The appeal has been further delayed as I also was out of station for official work. Hence, I kindly request you to condone the delay of 13 days in filing of this and admit my appeal.”
Against this assessee is in appeal before us.
I have heard the rival submissions and perused the materials available on record. There was a delay of 13 days in filing the appeal before Ld. CIT(A). The assessee explained the delay by petition as above. Thus, there was a short delay of 13 days in filing appeal before Ld. CIT(A). As seen from the above explanation, the assessee explained the delay in filing the appeal by sufficient cause.
In my opinion, the expression “sufficient cause” should be interpreted to advance substantial justice. Therefore, advancement of substantial justice is the prime factor while considering the reason for condoning the delay. In this case in our hand, the delay is very short of 13 days. It is also submitted before us that issue raised by assessee on merit before Ld. CIT(A) stands covered in favour of the assessee by various judgements. Therefore, because of technical defect, the appeal could not be dismissed in limine holding that there was reasonable cause for filing the appeal belatedly. The revenue has not filed any counter affidavit to deny the reasons explained by assessee in its petition neither before us nor before Ld. CT(A). When substantial justice and technical considerations are pitted against
Anand Padmanabhan, Bengaluru Page 3 of 4 each other, the cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right for injustice being done because of non-deliberate delay. It was not the case of revenue that the appeal was not filed deliberately. Therefore, we have to prefer substantial justice rather technicality in deciding the issue. If the application of the assessee for condoning the delay is rejected, it would amount to legalized injustice on technical ground when the Tribunal is capable of removing the injustice and to do justice. Therefore, we are bound to remove the injustice by condoning the delay technicalities. If the delay is not condoned which would amount to legalizing an illegal order, which would result in unjust enrichment on the part of the state by retaining the tax relatable thereto. Under the scheme of constitution, the Government cannot retain even a single pie of the individual citizen as tax, when it is not authorized by an authority of law. In this case, in our opinion, Ld. CIT(A) is unjustified in not condoning the short delay of 13 days in filing the appeal before him. Accordingly, we condone the delay of 13 days in the interest of justice and remit the entire issue of dispute on merit to the file of Ld. CIT(A) to decide the same since there is no ground before us on merit, we are not commenting on merit at this stage.
In the result, the appeal filed by the assessee is allowed. Order pronounced in the open court on 6th June, 2022
Sd/- (Chandra Poojari) Accountant Member Bangalore, Dated 6th June, 2022. VG/SPS
Anand Padmanabhan, Bengaluru Page 4 of 4