BHARATI RANI SAHA,KOLKATA vs. I.T.O., WARD - 61(3), KOLKATA, KOLKATA

The Registry has pointed out that appeal is time-barred by 1943 days. In order to explain the delay, the assessee has filed an application for condonation of delay and also annexed an affidavit of Smt Bharati Rani Saha the assessee. The affidavit of the assessee reads as under:-

The ld. Counsel for the assessee submitted that the ld CIT(A) disposed off The ld. Counsel for the assessee submitted that the ld CIT(A) disposed off The ld. Counsel for the assessee submitted that the ld CIT(A) disposed off these appeals by ex-parte orders as no one appeared parte orders as no one appeared on the dates fixed for on the dates fixed for hearings. The counsel of the assessee submitted that assessee’s tax counsel Shri C.A. Ramakant e submitted that assessee’s tax counsel Shri C.A. Ramakant e submitted that assessee’s tax counsel Shri C.A. Ramakant Pradhan was bed ridden and suffering from serious ailments. Then the assesse Pradhan was bed ridden and suffering from serious ailments. Then the assesse Pradhan was bed ridden and suffering from serious ailments. Then the assesse engaged another counsel C.A. Himansu Shekar Das by handing over all the engaged another counsel C.A. Himansu Shekar Das by handing over all the engaged another counsel C.A. Himansu Shekar Das by handing over all the documents to him and signed the a documents to him and signed the appeal papers around 28.02.2017 ppeal papers around 28.02.2017 but again these appeal were not filed by the tax counsel who ultimately expired on 13.06.2022 appeal were not filed by the tax counsel who ultimately expired on 13.06.2022 appeal were not filed by the tax counsel who ultimately expired on 13.06.2022 When

On the other hand, ld. D.R. contended that the assessee should be vigilant about all the issues relating to income-tax proceedings. The ld Dr argued that the delay in filing the appeal is not property explained and therefore the appeals amy kindly be dismissed.

We have duly considered the rival contentions and gone through the record carefully. We are mindful of the provisions of sub-section 5 of Section 253 which contemplates that the Tribunal may admit an appeal or permit filing of memorandum of cross-objections after expiry of relevant period, if it is satisfied that there was a sufficient cause for not presenting it within that period. This expression "sufficient cause" employed in this Section has also been used identically in sub-Section 3 of Section 249 of the Act, which provides power to the Id. Commissioner to condone the delay in filing of the appeal before the Commissioner. Similarly, it has been used in Section 5 of the Indian Limitation Act, 1963. Whenever interpretation and consideration of this expression has fallen for consideration before the Hon'ble High Courts as well as before the Hon'ble Supreme Court then, the Hon'ble Courts were unanimous in their conclusion that this expression has to be construed 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. 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.

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" 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 tliat 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

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 delay, then such reasons are to be construed with a justice oriented approach.

In the light of above, if we examine the facts of the present case, then it would reveal that basically the appeal has been filed after 1943 days of the ld. CIT’s order but almost two years is attributable to COVID period, i.e. 23.02.2020 upto March, 2022. This appeal has been presented before the Tribunal on 26.07.2022. If credit of number of days allowed by the Hon’ble Supreme Court in its order dated September 23, 2021 in Miscellaneous Application No. 665 of 2021 in SMW(C) No. 3 of 2020 regarding cognizance for extension of limitation, even then there is substantial delay at the part of the assessee but we are of the view that the delay is for sufficient and reasonable cause. Moreover, making the appeal time-barred has not been used by the assessee as a tactics to avoid the litigation with the Revenue because such strategy would not give any benefit to the assessee in this type of litigation. Therefore, we condone the delay and proceed to decide the appeal on merit.

At the outset, the Ld. Counsel for the assessee submitted that the Ld. CIT(A) has decided the appeal ex-parte as the assessee could not appear on various dates when the Ld. CIT(A) fixed the appeal for hearing. The Ld. Counsel submitted that the notices sent by the Ld. CIT(A) were not received by the assessee and therefore the appeal of the assessee remained unattended resulting into passing of ex-parte order by the Ld. CIT(A). The ld. Counsel of the assessee prayed before the Bench that the

The Ld. D.R on the other hand strongly objected the prayers of the Ld. A.R by submitting that despite several opportunities granted, the assessee did not appear and therefore the said request of the counsel of the assessee may kindly be dismissed.

With assistance of the Ld. Representatives of both the sides, we have gone through the records carefully. There is no dispute with regard to the fact that the assessee did not turn up before the Ld. CIT(A) in response to the notices issued fixing the date of hearing but it is pertinent to note that sub-section (6) of Section 250 contemplates that the Ld. First Appellate Authority would formulate the points for determination and thereafter the record reasons on such points. The facility of reference we take note of sub-section (6) of section 250 which read as under:

With the above observation, all the appeals of the assessee are allowed for statistical purposes.