GEETHA MAHADEV GOWDA,BENGALURU vs. INCOME TAX OFFICER, WARD-2(1)(3), BANGALORE

PER KESHAV DUBEY, JUDICIAL MEMBER:

3. At the outset, there is a delay of 133 days in filing the appeal before the ld. CIT(A)/NFAC. The ld. A.R. of the assessee drew our attention to an application filed for condonation of delay in filing the appeal before the ld. CIT(A)/NFAC mentioning the reasons for the delay which are as follows:

4. The main reason cited by the assessee is the severe health problem. The ld. CIT(A)/NFAC was of the opinion that without evidence viz., certificate from a registered medical practitioner or from a recognized hospital etc such a general explanation can never be accepted. Further, in spite of several notices, there was neither any clarification nor any response from the assessee. The ld. CIT(A)/NFAC following the various judicial pronouncements & considering the entirety of the facts and circumstances of the case, did not condone the delay. Moreover, the ld. CIT(A)/NFAC also 5. Aggrieved by the order of ld. CIT(A)/NFAC dated 09/12/2024, the assessee is in appeal before us.

Smt. Geetha Mahadev Gowda, Bangalore Page 5 of 8 7. Ld. D.R. on the other hand strongly opposed in condoning the delay in filing the appeal before this Tribunal by submitting that assessee is very callous in its approach in filing the appeal not only before this Tribunal but also before the ld. CIT(A)/NFAC.

8.1 While considering a similar issue the Apex Court in the case of Collector, Land Acquisition v. Mst. Katiji and Ors. (167 ITR 471) laid down six principles. For the purpose of convenience, the principles laid down by the Apex 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 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, commonsense and pragmatic manner.

(4) When substantial justice and technical consideration 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 nondeliberate delay.

Smt. Geetha Mahadev Gowda, Bangalore Page 6 of 8 (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. (6) It must be grasped that the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

8.2 When substantial justice and technical consideration are pitted against 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. Therefore, we have to prefer substantial justice rather than technicality in deciding the issue. As observed by Apex Court, if the application of the assessee for condoning the delay is rejected, it would amount to legalize injustice on technical ground when the Tribunal is capable of removing injustice and to do justice. Therefore, this Tribunal is bound to remove the injustice by condoning the delay on technicalities. If the delay is not condoned, it 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. Therefore, if we refuse to condone the delay, that would amount to legalize an illegal and unconstitutional order passed by the lower authority.

8.3 Further, in the case of People Education & Economic Development Society Vs/ ITO reported in 100 ITD 87 (TM) (Chen), wherein held that “when substantial justice and technical consultation 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 non-deliberate delay”.

Smt. Geetha Mahadev Gowda, Bangalore Page 7 of 8 8.4 The next question may arise whether delay was excessive or inordinate. There is no question of any excessive or inordinate when the reason stated by the assessee was a reasonable cause for not filing the appeal. We have to see the cause for the delay. When there was a reasonable cause, the period of delay may not be relevant factor. In fact, the Madras High Court in the case of CIT vs. K.S.P. Shanmugavel Nadai and Ors. (153 ITR 596) considered the condonation of delay and held that there was sufficient and reasonable cause on the part of the assessee for not filing the appeal within the period of limitation. Accordingly, the Madras High Court condoned nearly 21 years of delay in filing the appeal. When compared to 21 years, just 17 days cannot be considered to be inordinate or excessive. Furthermore, the Chennai Tribunal by majority opinion in the case of People Education and Economic Development Society (PEEDS) v. ITO (100 ITD 87) (Chennai) (TM) condoned more than six hundred days delay. Therefore, in our opinion, by preferring the substantial justice, the delay of 17 days has to be condoned and accordingly we condone the delay and admit the appeal for adjudication.