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Income Tax Appellate Tribunal, MUMBAI BENCH “C”, MUMBAI
Before: SHRI VIKAS AWASTHY & SHRI AMARJIT SINGH
ORDER PER BENCH: These eleven appeals by the assessee are filed against the order of Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi passed under section 200A of the Income Tax Act, 1961 [in short ‘the Act’]. TO- 37/MUM/2022(A.Y.2015-16) ITA NO.38TO41/MUM/2022(A.Y.2014-15) ITA NO.42TO44/MUM/2022(A.Y.2013-14)
The appeals in to 37/Mum/2022 are for the quarters falling under assessment year 2015-16. The appeals in ITA No.38 to 41/Mum/2022are for the quarters falling under assessment year 2014-15 and appeals in ITA NO.s 42 to 44/Mum/2022 are for the three quarters falling under assessment year 2013-14. Since, identical issue has been raised in all these appeals, these appeals are taken up together for adjudication and are decided by this common order.
These eleven appeals filed by assessee are time barred by three days. Shri Bharat Kumar appearing on behalf of the assessee submitted that there is no delay in filing of the appeal. The ld. Authorized Representative for the assessee submitted that the time period for filing of the appeal was extended by the Hon'ble Supreme Court of India by general order consequent to unprecedented situation caused by COVID -19 Pandemic. The appeals have been filed within the extended time, hence, there is no delay in filing of these appeals.
Shri R.A.Dhyani representing the Department raised no objection for condonation of delay , if any, in filing of these appeals.
Both sides heard on the limited issue of delay in filing of the present set of appeals. We find that the impugned orders were passed on 08/11/2021 and 09/11/2021. The assessee had 60 days time from the date of communication of the order to file appeal before the Tribunal. The assessee filed appeal on 11/01/2022. The Hon’ble Apex Court on its own motion after taking cognizance of the hardship caused by the Pandemic extended limitation for filing of the appeals for a period of 90 days from 30/10/2021[ Cognizance for TO- 37/MUM/2022(A.Y.2015-16) ITA NO.38TO41/MUM/2022(A.Y.2014-15) ITA NO.42TO44/MUM/2022(A.Y.2013-14)
Extension of Limitation, 132 taxamann.com 123(SC)]. Thus, in the light of aforesaid decision of Hon’ble Apex Court, the present appeals have been filed by the assessee within the extended period of limitation, hence, no delay.
6. The ld.Authorized Representative for the assessee submitted that the CIT(A) has dismissed the appeals of the assessee inlimine on the ground of limitation. The ld.Authorized Representative for the assessee submitted that admittedly all the appeals were filed before the CIT(A) against the order passed u/s. 200A of the Act with a delay of more than 2000 days. The CIT(A) without appreciating bona-fide reasons causing delay in filing of the appeal has dismissed the appeals. The assessee had filed application for condonation of delay in each of the appeals giving detailed reasons resulting in delay in filing of the appeals. The CIT(A) taking hyper-technical approach has dismissed the appeals of the assessee on the ground of limitation. The assessee has prima facie good case in its favour. The ld. Authorized Representative for the assessee prayed that if delay is condoned and appeals are restored to the file of CIT(A), the assessee would be able to make out its case on merits.
Per contra, the ld. Departmental Representative vehemently defended the impugned orders. The ld. Departmental Representative submitted that assessee has filed appeals before the CIT(A) after inordinate delay of more than 2000 to 2750 days. The assessee has not been able to show valid reasons causing delay in filing of the appeals. The ld. Departmental Representative prayed for dismissing appeals of the assessee and upholding the orders of CIT(A) . TO- 37/MUM/2022(A.Y.2015-16) ITA NO.38TO41/MUM/2022(A.Y.2014-15) ITA NO.42TO44/MUM/2022(A.Y.2013-14)
We have heard the submissions made by rival sides and have examined the orders of authorities below. We find that the learned CIT (A) has passed the impugned orders for different quarters in similar manner therefore, for the sake of conveniences in deciding the issue identical in all appeals, reference is made only to the impugned order in ITA No.34/Mum/2022. A perusal of the impugned order for assessment year 2015-16 in (supra) shows that the CIT(A) in first instance (Para - 2.8) has observed that the assessee has not filed any application seeking condonation of delay. However, in the subsequent paras the CIT(A) has mentioned that the assessee has tried to explain the delay but no affidavit along with documentary evidence has been filed by the assessee explaining delay. The ld. Authorized Representative for the assessee has drawn our attention to the response to Notice ID 100039907452 at page 26 of the paper book to show that the assessee has e- filed application seeking condonation of delay. This clearly reflects that the observations of the CIT(A) in para -2.8 are contrary to the facts.
The Hon'ble Supreme Court of India in the case Ramnath Sao vs. Gobardhan Sao and Others reported as 2002 AIR 1201 while dealing with the application seeking condonation of delay held as under:
“In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependant upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bona fide can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like TO- 37/MUM/2022(A.Y.2015-16) ITA NO.38TO41/MUM/2022(A.Y.2014-15) ITA NO.42TO44/MUM/2022(A.Y.2013-14) manner. However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. Which considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way.” [Emphasised by us] 10. The Hon’ble Apex Court in the case of N. Balakrishnan vs. M. Krishnamurthy reported as (1998) 7 SC Cases 123 has held as under:
“9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory.”
The Hon’ble Apex Court in the case of Collector, Land Acquisition vs. MST Katiji reported as 167 ITR 471 has held that a liberal approach should be adopted while considering explanation furnished causing delay. The broad principle laid down by the Hon’ble Apex Court to be kept in mind while considering application seeking condonation of delay are as under:
“ 4. And such a liberal approach is adopted on principle as it is realized that :
1. 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. 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 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 TO- 37/MUM/2022(A.Y.2015-16) ITA NO.38TO41/MUM/2022(A.Y.2014-15) ITA NO.42TO44/MUM/2022(A.Y.2013-14) 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 a serious risk.
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.”
Taking into consideration facts of the case, without commenting on merits we deem it appropriate to restore this appeal back to the file CIT(A) for considering assesee’s application for condonation of delay in the light of the principles expounded by Hon’ble Apex Court for dealing with application for condonation of delay.
In the result, impugned orders are set-aside and the appeals by assessee are allowed for statistical purpose.