M/S EMSONS ORGANICS LTD.,CHANDIGARH vs. DCIT, CC-1, CHANDIGARH

आदेश/ORDER PER DIVA SINGH

These five appeals have been filed by the assessee against the separate orders dated 26.09.2016 of CIT(A)-3 Gurgaon pertaining to 2005-06, 2009-10, 2010-11, 2011-12 and 2012-13 assessme nt years on identical grounds.

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submitted that the delay has occurred in view of the peculiar

facts and circumstances wherein the two Directors Shri Rajeev

Goyal and Smt. Alka Goyal have remained pre-occupied on

account of the illness and health related problems of Shri

Rajeev Goyal. It was submitted that the assessee company lying

closed since 2012 had only these two Directors who were

husband and wife. On account of the serious multiple life

threatening health problems of the husband Shri Rajeev Goel,

the wife necessarily also travelled for surgery, medical

treatment, care etc. and hence also re mained unable in a

position to address the affairs of the assessee company.

Referring to the material on record, it was submitted that Shri

Rajeev Goyal was suffering over a period of time from multiple

life threatening diseases since 2013 which included cancer

related treatment etc. and consequently had been travelling to

U.S. and Canada for surgeries etc. The fact that the impugned

order dated 26.09.2016 is an ex-parte order and even in the

assessme nt proceedings, the assessee could not effectively

participate, it was submitted, would bear out these facts. It was

submitted that since both the Directors become so pre-occupied

and unavailable to attend to the company affairs, it became

necessary for the assessee to execute a GPA in favour of Shri

G.K.Bhola. Referring to the copy of the G.PA executed in favour

of Shri B.K. Bhola on record, it was submitted that it was

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executed as at the relevant point of time Shri Rajiv Goel was in

Canada. In order to ensure representation at the appropriate

Forum, the G.PA was executed in favour of Shri Bhola

mandating him to do all the acts necessary for assessee's

representation before the tax authorities, Excise & Taxation etc.

Acting on the said authority, it was submitted, Shri Bhola has

been looking after the proceedings before the tax authorities. It

was also his submission that the assessee company had been

lying defunct since 2012 and consequently no business had

been conducted by the assessee company, consequently the

company existed on the strength of one semi-literate employee

Shri Deepak Uniyal. It was submitted, that Shri Deepak Uniyal

as a caretaker of sorts would communicate the orders, notices

etc. received by the assessee company. Arguments to the said

effect had been made on 8 t h July,2019, 25 t h July,2019 and

finally on 30 t h July,2019. On the last two dates Shri D.Uniyal

was present in the Court. Relying on the affidavits of Shri G.K.

Bhola and Shri Deepak Uniyal, the ld. AR on the last two dates

offered that in case statement of Shri D.Uniyal was to be

recorded or the Re venue wanted to cross-question him qua the

contents of his affidavit, he was present and available. The

CIT-DR waived the need to cross question him. Reverting back

to his argume nts relying upon the revised condonation of delay

application and the affidavits, the ld. AR submitted that due to

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some communication gap between the assessee company,

Departme nt and the GPA holder Shri B.K. Bhola, the delay has

occurred inadvertently. Supporting docume nts including the

affidavits of Shri B.K. Bhola and Shri Deepak Uniyal alongwith

the medical history of Shri Rajiv Goyal and e-mail

communications etc. between the respective parties were relied

upon.

3.1 Referring to the same, it was his submission that the delay

has occurred on account of the inadvertent mis-communication

arising out of the peculiar facts and circumstances where the

Directors remained pre-occupie d. Accordingly, it was his

submission that the delay may be condoned.

assessee before the AO has also remained unrepresented and

even the impugned order is also an ex-parte order. In these

circumstances, the delay it was his submission demonstrates

the carelessness on the part of the assessee. However,

considering the medical record as now pleaded on affidavits and

the submissions, a view, it was submitted, may be taken.

before the tax authorities is not disputed. The fact on the

contrary, supports the assessee's submissions as that the

impugned order is an ex-parte order precisely for this reason.

The impugned order, it was submitted, is dated 26.09.2016 and

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when it is considered as per the medical history placed on

record of Shri Rajiv Goyal, Director of the company, he and his

wife have remained engrossed with multiple surgeries and

cancer related problems of Shri Rajeev Goel since 2013 on

account of which fact, they have been travelling to USA and

Canada etc. It was re-iterated that the assessee company has

been lying defunct since 2012 and only Mr. Deepak Uniyal was

looking after the affairs. The said employee, it was submitted,

was incapable of understanding the relevance and the

consequences of the orders which he hap-hazardly followed

through in good faith. Mr. Uniyal, it was submitted, was

present in the Court and in case the Revenue or the Court

wants to ascertain his education level or capacity to

understand, be made a prayer that he may be examined. The

concerned gentle man identifying himself as Deepak Uniyal stood

up and made himself available. However, the ld. CIT-DR waived

the opportunity stating that he was referring to the facts on

record and would not want to cross-question him. The ld. AR

continuing his arguments submitted that in the eventuality

delay is condoned, he would be praying for a re mand back of

the issues to the AO as the Appellate Forum of the CIT(A) may

not be the appropriate Forum as evidences will need to be filed

which before the CIT(A) would constitute fresh evidences and as

per law, will necessitate a remand back to the AO.

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objection to the condonation of delay and agreed that the

matter may be remanded to the AO and not to CIT(A) as

admittedly the assessee has not been able to participate in the

proceedings.

merits, it is necessary first to address the facts se t out in the

revised condonation of delay application dated 27.07.2019

placed on re cord by the assessee. The application is extracted

hereunder for the sake of completeness:

Respectfully submitted as under:- 1. That the Income Tax Appeals against the orders dated 26.09.2016 of the Commissioner of Income Tax (Appeals)-3, Gurgaon relating to assessment years 2005-06, 2009-10, 2010-11, 2011-12 and 2012-13 were filed on 23.08.2018 which were late by 615 days. 2. That the appellate orders were received on 17.10.2016 in the office of the company being attended to only by an office supervisor of the group companies Sh. Deepak Uniyal who in turn handed over the documents to CA Alok Krishan who was at that point of time looking after the affairs of the group companies. He was also sent an e-mail on 17.10.2016 vide official email ID ho@suryapharma.com attaching therewith copies of the appellate orders passed by the CIT(A)-3, Gurgaon. Copy of the same is annexed herewith at Page 1. 3. That the auditors of the Company stationed at New Delhi inquired about the details of assessments framed for the purpose of incorporating the details of outstandings of the Income Tax Department and for that purpose, Sh. Deepak Uniyal contacted the office of CA Alok Krishan. The copies of the impugned orders passed by CIT(A) were forwarded to Sh. Deepak Uniyal on his personal email ID on 18.05.2017 by CA Alok Krishan as the email ID ho@suryapharma.com had became inoperative who further forwarded the same to Ms. Alka Goyal., the director of the Company on the same date. Copy of the mail is annexed at Page 35. 4. That again the next year, the auditors of the Company stationed at New Delhi inquired about the details of assessments framed for the purpose of incorporating the details of outstandings of the Income Tax Department and for that purpose, Sh. Deepak Uniyal forwarded the copies of the impugned orders passed by CIT(A) to the official email ID campusdelhil23@gmail.com on 18.06.2018.. Copy of the mail is annexed at Page 36. 5. That Sh. Rajeev Goyal and Smt. Alka Goyal are the directors of the company. 6. That the Company has been lying defunct since 2012 and no business is being conducted. 7. That I B. K. Bhola, the undersigned has the GPA from Sh. Rajeev Goyal to sign appeal and other related documents on his behalf. Copy of the same is annexed herewith at Page 2. 8. That Sh. Rajeev Goyal is suffering from Cancer and multiple diseases since 2013 and has been travelling to USA since 2013 for surgeries. 9. That he alongwith his wife Smt. Alka Goyal have been in the USA and Canada since March 2014 and have not travelled to India since then. Copy of brief medical history alongwith record is annexed herewith at Pages 3-28. 10. That even the office space SCO 141-143, Sector 43B, Chandigarh was taken over by the bankers on 24.03.2017. Copy of notice for sale of office premises issued by SBI is annexed at Page 29.

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7.1 It is seen that the application is accompanied by the

following supporting documents which have been annexed:

Sr. No. Description of documents 1. Copy of the e-mail dated 17.10.2016 2. Copy of the General Power of Attorney in favour of Shri B. K. Bhola issued by the Director of the assessee-company. 3. Brief Medical History of Shri Rajiv Goyal, Director of the Company. 4. Copy of the notice for sale of office premises issued by the SBI. 5. Copy of the affidavit ofShri B. K. Bholla dated 29.05.2019 filed alongwith the original application for condonation of delay. 6. Copy of the affidavit of Shri Deepak Uniyal dated 29.05.2019filed alongwith the original application for condonation of delay. 7. Copy of the e-mail dated 18.05.2017. 8. Copy of the e-mail dated 18.06.2018. 9. Copy of the affidavit of Shri B. K. Bholla dated 27/29.07.2019. 10 Copy of the affidavit of Shri Deepak Uniyal dated 27/29.07.2019. 7.2 The medical history of Shri Rajiv Goyal, Director on facts

has been addressed separately in the extract on which the ld.

AR has relied. It is also extracted hereunder for the sake of

completeness :

“ Sending a brief medical history for your knowledge & records along with reports Brief history Rajiv Goyal was diagnosed with Ulceritis Colitis in Sep 2013 and some neuro endocrine carcinoid tumors were also seen in his Deudonam (the area from where small intestines connect with stomach and all ducts like Pancreas, Gall Bladder and Liver meet as part of digestion system) in India. He went through series of tests, like CT Scans, MRTs, Pet Scan, etc. and was advised Whipple (an 8 hour surgery in which the small intestine is cut and all ducts are shifted to jeujonam) surgery by 2 Ex- Heads of Surgery Deptt. of PG1 Chandigarh. Looking at the results of various tests, certain expert doctors strongly advised that he should get himself checked at Memorial Sloan Kettering Hospital in New York, USA. He went to USA in October 2013 and got his medical check ups done all over again, and was diagnosed with cancer in Thyroid, which was removed through surgery in November 2013. He could return to India only in Dec 2013, and while the chemotherapy of the Thyroid was being done in

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March 2014 in USA , it was found that the tumours in the Deudonam had also doubled in size and had to be urgently removed through surgery which took place in New York on April 5, 2014 It was unfortunate for him when it was discovered during the Thyroid surgery that the cancer had spread to one of his lymph nodes and also ,in his Deudanom surgery margins were not found to be clear, which meant that both the cancers can relapse. He is currently undergoing various tests and treatments to bring himself into safety zone. Also, the root cause of persistent pain in the abdomen is still not known. It is actually very painful and taxing on his health/ body to undergo so many surgeries/procedures ,investigations,tests etc. in such a short span as he already had two major surgeries of Thyroid & Duodenum. It was very unfortunate that during the Duodenum surgery the margins were not clear and there is possibility of a relapse anytime. The thyroid tumuors had also spread to lymph nodes due to which he had to take radio active iodine therapy (chemotherapy) and is under constant observation. Some tumours have been observed on the liver too, which are also under constant observation & may have to be removed by another major surgery . In August 2015 he underwent surgery of Colorectal & which didnot go well...Post surgery he had to be on bed for almost 4 months and underwent many tests ..Then Doc scheduled another surgery for 12th Jan 16 ( surgery date attached ) which could not be done because he had developed shingles (like small pox) on my body & had developed other complications also. The surgeiy was postponed for April 25,h,2016.& during these 4 months again he had terrible time because he underwent multiple tests like Neck ultrasound ,Abdomen contrast cystoscopy, Bone image study ,Ct scan of right foot as he has developed cyst there. On April 25th he underwent surgery & post surgery problems. He is also going through major depression and undergoing treatment for the same at BC Cancer Agency On Dec 22nd Whole body Scan was done which shows some some changes in the adjacent sclerotic foci noted in the inter trochantric area of the proximal left femur with mildly increased activity .A sclerotic metastasis would not be ruled out & will be best identified on the Spect Ct tomographic imaging for which test to get the date. IN 2017 he again underwent through series of tests like MRI,CT scan foot ,Ct scan of Chest, Hip & various other tests to rale out bone cancer because of multiple problems ....cyst in foot & cyst under the lobes & arthritis in the body for which the reports have been sent in last mail. In Chest Ct Scan 3 pulmonary nodules are seen & findings are metastatic disease is not excluded & will be under observation with a follow up test in 3 months again. Following up with Dr Jaiswal in BC Cancer agency hospital for Thyroid and continue his dose of Synthroid ( 225.5 meg ) to suppress the cancer activity . Thyroglobulin level is continuously elevating for which the tandem mass spectrometry test has been suggested before the next visit. He has been under constant observation because of two major surgeries of cancer of Thyroid & duodenum & now facing multiple problem which could be related to cancer .That is the reason for undergoing lot of Pet scan,MRI,Ct Scan, & other tests because he has developed cysts at various places like liver, foot ,hip, chest. Now as per latest reports there is increase in Throglobulin level & Chromogranin level in his body which indicates relapse of both the cancers (Thyroid & Deudonam) for which further investigations are on & he is still under major depression due to which he could not devote time for official matters. 7.3 On account of these facts, GPA in favour of Shri B.K. Bhola

has been executed who was looking out for the affairs of the

company. Shri B.K. Bhola was kept informed of notices/orders etc.

received at the factory premises by Shri D. Uniyal, only employee at

both of the defunct company. The contents of the affidavit of Shri

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B.K. Bhola and Shri Deepak Uniyal are also extracted hereunder for

the sake of completeness :

AFFIDAVIT I, B. K. Bhola son of Shri Om Parkash Bhola aged 54 years resident of H. No 2389, Sector 71, Mohali do hereby solemnly affirm and declare as under: - 1. That I am the Authorised Signatory of M/s Emsons Organics Limited being GPA holder of Sh. Rajeev Goyal, Director. 2. That the Income Tax Appeals against the orders dated 26.09.2016 of the Commissioner of Income Tax (Appeals)-3, Gurgaon relating to assessment years 2005-06, 2009-10, 2010-11, 2011-12 and 2012-13 were filed on 23.08.2018 which were late by 615 days. 3. That the appellate orders were received on 17.10.2016 in the office of the company being attended to only by an office supervisor of the group companies Sh. Deepak Uniyal who in turn handed over the documents to CA Alok Krishan who was at that point of time looking after the affairs of the group companies. He was also sent an e-mail on 17.10.2016 vide official email ID ho@suryapharma.com attaching therewith copies of the appellate orders passed by the CIT(A)-3, Gurgaon. 4. That the auditors of the Company stationed at New Delhi inquired about the details of assessments framed for the purpose of incorporating the details of outstandings of the Income Tax Department and for that purpose, Sh. Deepak Uniyal contacted the office of CA Alok Krishan. The copies of the impugned orders passed by CIT(A) were forwarded to Sh. Deepak Uniyal on his personal email ID on 18.05.2017 by CA Alok Krishan as the email ID ho@suryapharma.com had became inoperative who further forwarded the same to Ms. Alka Goyal., the director of the Company on the same date. 5. That again the next year, the auditors of the Company stationed at New Delhi inquired about the details of assessments framed for the purpose of incorporating the details of outstandings of the Income Tax Department and for that purpose, Sh. Deepak Uniyal forwarded the copies of the impugned orders passed by CIT(A) to the official email ID campusdelhil23@gmail.com on 18.06.2018. 6. That Sh. Rajeev Goyal and Smt. Alka Goyal are the directors of the company. 7. That the Company has been lying defunct since 2012 and no business is being conducted. 8. That I B. K. Bhola, the undersigned has the GPA from Sh. Rajeev Goyal to sign appeal and other related documents on his behalf. 9. That Sh. Rajeev Goyal is suffering from Cancer and multiple diseases since 2013 and has been travelling to USA since 2013 for surgeries. 10. That he alongwith his wife Smt. Alka Goyal have been in the USA and Canada since March 2014 and have not travelled to India since then. 11. That even the office space SCO 141-143, Sector 43B, Chandigarh was taken over by the bankers on 24.03.2017. 12. That I was called by the Assessing Officer for deposit of outstanding demand in the month of August 2018 and at that juncture, I enquired about the filing of appeal from Sh. Deepak Uniyal. He informed that he had handed over the documents to CA Alok Krishan, Sector 34, Chandigarh. 13. Thereafter, we contacted CA Alok Krishan but he informed that he had forgotten to file the appeals against the appellate orders. 14. That all this while, we were under the impression that the appeals against the impuged orders would have been filed since the original orders had been given to their counsels CA Alok Krishan. 15. That immediately corrective measures were initiated and the appeals were filed though belatedly on 23.08.2018 through Sh. Tejmohan Singh Advocate. 16. That the delay was due to multiplicity of problems with the company being defunct, no regular employee, the director suffering from cancer and out of the country with his wife who was the other director and mistake of the Chartered Accountant who was representing the group companies. Sd/- Deponent Verified that the above noted contents of my affidavit are true and correct to the best of my knowledge and belief and nothing has been concealed therein. Chandigarh Sd/- Dated 27.7.2019. Deponent

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7.4 Contents of Affidavit of Shri Deepak Uniyal : AFFIDAVIT I, Deepak Uniyal, son of Shri B. D. Uniyal aged 28 years resident of House No. 280, Hallomajra, Chandigarh do hereby solemnly affirm and declare as under: - 1. That the Income Tax Appeals against the orders dated 26.09.2016 of the Commissioner of Income Tax (Appeals)-3, Gurgaon relating to assessment years 2005-06, 2009-10, 2010-2011,2011-12 and 2012- 13 were filed on 23.08.201S which were late by 615 days. 2. That the appellate orders were received on 17.10.2016 in the office of the company being attended to only by me. 3. That I handed over the documents to CA Alok Krishan who was at that point of time looking after the affairs of the group companies. He was also sent an e-mail on 17.10.2016 vide official email ID ho@suryapharma.com attaching therewith copies of the appellate orders passed by the CIT(A)-3, Gurgaon. 4. That the auditors of the Company stationed at New Delhi inquired about the details of assessments framed for the purpose of incorporating the details of outstandings of the Income Tax Department and for that purpose, I contacted the office of CA Alok Krishan. The copies of the impugned orders passed by CIT(A) were forwarded to me on my personal email ID on 18.05.2017 by CA Alok Krishan as the email ID ho@suryapharma.com had became inoperative and I further forwarded the same to Ms. Alka Goyal the director of the Company on the same date. 5. That again the next year, the auditors of the Company stationed at New Delhi inquired about the details of assessments framed for the purpose of incorporating the details of outstandings of the Income Tax Department and for that purpose, I forwarded the copies of the impugned orders passed by CIT(A) to the official email ID campusdelhil23@gmail.com on 18.06.2018. Sd/- Deponent Verification :- Verified that the above noted contents of my affidavit are true and correct to the best of my knowledge and belief and nothing has been concealed therein. Chandigarh Sd/- Dated 27.7.2019. Deponent

7.5 We find when the submissions based on the material

available on record, contents of which have been extracted

hereinabove, it is seen that the assessee admittedly during the

period infact much prior to the period was incapacitated. The

assessee has stayed alive and alert to his responsibilities by

executing a GPA in favour of Shri Bhola to ensure that the

assessee remains represe nted. We find that the assessee's G.PA

holder relying on the communication made with Shri D.Uniyal

followed these through. It is seen that there was some

miscommunication between Shri Deepak Uniyal and the

erstwhile C.A. which lapse was noticed by the auditors and

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promptly addressed. Infact the gap during this period shows

that the appeal filed against the impugned order was preceded

by lack of representation even before the CIT(A) also. This

lapse is pleaded to be arising due to communication gaps etc.

between Shri D.Uniyal and the erstwhile C.A. wherein Mr. Goel

the other Director was also being kept in the loop and some e-

mail Id created for communication between the erstwhile C.A.

and the company operated by Shri D.Uniyal became inoperative.

Shri D. Uniyal relying on past practice understood that

communication was complete which it appears was not accessed

by the erstwhile C.A. In the said background, we are required

to adjudicate on the issue whether in these peculiar facts and

circumstances should the assessee after having taken all

possible steps to ensure that it is represented in the various

forums be allowed to succeed in demonstrating “sufficient

cause” or should the assessee fail on technicalities. When the

contents of the Condonation of Delay Application extracted

above are considered, alongwith the contents of the affidavit of

Shri B.K.Bhola, G.PA holder, specific page 37 paras 13-14

thereof are read alongwith paras 3,4 & 5 of the affidavit of Shri

Deepak Uniyal, it is seen that the consiste nt documents

available on record show that Shri Deepak Uniyal entrusted

with following up with the concerns of defunct assessee

company brought it to the notice of Shri Alok Krishan, the C.A.

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through the company e-mail Id which unknown to him became

inoperative. As per Shri D. Uniyal who was handling the cases,

the notices and orders were duly communicated by him. It is

seen that there is no affidavit of Shri Alok Krishan on record

and the arguing counsel was required to address this fact. The

ld. AR pleaded his inability to persuade the assessee to request

the erstwhile C.A. to give such an affidavit. Accordingly, in

view of this shortcoming, the GPA holder of the assessee Shri

B.K.Bhola and the office employee Shri Deepak Uniyal have

stated these facts on affidavit. It has been stated that Shri

Deepak Uniyal was present in the Court for cross-questioning

etc. On the basis of these facts and arguments, it has been

pleaded that delay be condoned.

7.6 It is seen that the time limit for filing of the appe als before

the ITAT has been addressed in sub-section (3) of Section 253

of the Income Tax Act,1961. Sub-Section (5) of Section 253

permits the ITAT to admit the appeal or cross-objection as it

may be even beyond the periods set out in sub-section (3) and

4). We are presently concerned with sub-section (3) of Section

appeal after the expiry of the relevant period referred to in sub-

Section (3) if it is satisf ied that there was sufficient cause for

not presenting it within that period.

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7.7 The words “sufficient cause” as provided in sub-section (5)

of Section 253 have also been used in the Limitation Act, 1963

as well as in the CPC. The said require me nt as considere d in

the oft quoted decision of the Apex Court in the case of

Collector Land Acquisition Vs MST. Katiji & others 167 ITR 471 (S.C) throws a guiding light on this issue. The Court in the

said decision in unequivocal terms held that the expression

“sufficient cause” in sub Section (5) is adequately realistic to

enable the Courts to apply the law in a meaningful manner which

sub serves the ends of justice and that being alone purpose of

the existence of the Institution or Courts”. Accordingly, the

authoritative pronouncement of law as laid down by the Court

is that “ a justifiably liberal approach has to be adopted on

principle. The Court even considering the phrase “every day’s

delay must be explained” has clearly held that it does not

imply that while interpreting the provisions, a pedantic

approach should be taken. The Court held that the doctrine

must be applied in a common sense and pragmatic manner

holding that when substantial justice and technical

considerations are pitted against each other, the cause of

substantial justice deserves to be adhered. While espousing

such an approach, the Court was quick to highlight that for

doing so was imperative as the other side cannot claim to have a

vested right in injustice being done because of a non deliberate

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delay on the part of the other side”. In the facts of the present

case, we have seen that Shri Rajeev Goel, the Director

underwent various surgeries for his multiple cancer related

health issues and the other Director being his wife, also

remained out of the country alongwith Shri Rajeev Goel. The

affidavit of the GPA holder Shri B.K. Bhola has been seen. The

contents of the same have also been verified by Shri Deepak

Uniyal, the sole employee of the assessee company handing the

notices and orders etc. from various authorities. It appears

that on account of a mis-communication with the erstwhile C.A.

and the follow up by the auditors qua the issues of the defunct

company, the non filing of the appeal was noticed. In these

facts, it has been pleaded that the delay may be condoned.

These facts which remain unre butted, we find sufficiently

demonstrate that as the delay was non-deliberate as

contemplated by the Apex Court in the aforesaid decisions, we

further find that by considering the delay in the peculiar facts,

no disadvantage is visited upon the Revenue. We have also seen

that by way of filing of the present appeals late, the assessee

also has not derived any undue advantage as there is no vested

right in favour of the Revenue which can be said to be

disturbed if the present delay is condoned. Guided by the

principles as laid down by the Apex Court in the aforesaid

decision, we are of the view that in the absence of any

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justifiable reason to deny the relief sought, the delay of 615

days in each of the appeals filed for the reasons set out

hereinabove deserves to be condoned. We support the

conclusion on the basis of following principles enunciated by

the Apex Court in the case of Collector, Land Acquis ition V Mst.

Katiji & Others 167 ITR 471 (cited supra):

“The legislature has conferred the power to condone delay by enacting Section 51 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on ‘merits’. The expression “sufficient cause” employed by the legislature is adequately elastic to enable the courts to apply the law in a meaning- ful manner which subserves the ends of justice–that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:- 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 pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, 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 a serious risk. 6. It must be grasped that 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.”

7.8 We may also refer to the decision of the Hon'ble Supreme

Court in the case of Concord of India Insurance Co. Ltd. vs. Smt.

Nirmala Devi & ors. (1979) 118 ITR 507 (S.C) and the decision of

the Hon'ble Madhya Pradesh High Court in the case of Mahavir

Prasad Jain Vs CIT 172 ITR 331 (MP) to support our conclusion.

The Courts in the aforesaid decisions has clearly held that the

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assessee cannot be made to suffer on account of the negligence

of his counsel. The said view was reiterated by the Apex Court

in the case of V edabai alias Vaijayanatabai Baburao Patil v. Sh antaram Baburao Patil & ors. 253 ITR 798 (S.C).

7.9 In the facts of the present case, as set out in greater detail

hereinabove where we have accepted the explanation offered on

behalf of the assessee as bonafide and true, we deem it

appropriate to also address the response of the ld. CIT-DR who

though has not opposed the condonation of delay, however, has

requested that the assessee be advised to exhibit and ensure

vigilance and alertness towards its rights and responsibilities

in its future conduct. We expect the assessee to ensure its

effective participation with due diligence in all future actions.

Having so observe d, the delay is condoned.

noted in the earlier paras, the impugned ex-parte orders are set

aside back to the file of the AO and not the CIT(A) as the

parties have highlighted that evidences are not on record as

before the AO also, the assessee could not make effective

representation due to the illness etc. of the Directors. These

evidences, it has been argued will need to be verified by the AO.

The prayer for remand to the AO as noted has not been opposed

by the ld. CIT-DR also. With the above observations, the

impugned orders are set aside. At the cost of repetition, the

ITAs 1088 to 1092/CHD/2018 A.Y. 2005-06, 2009-10 to 2012-13 Page 17 of 17

assessee is directed to ensure full and proper participation

before the AO in the respective years. It is made clear that in

the eventuality of abuse of the trust reposed, the AO shall be at

liberty to pass an order on the basis of the material available

on record. Said order was pronounced in the Open Court at the

time of hearing itself.

statistical purposes.

Order pronounced in the Open Court on 24 t h September,2019.

Sd/- Sd/-

( अ�नपूणा� गु�ता ) ( �दवा �संह ) (ANNAPURNA GUPTA) (DIVA SINGH) लेखा सद�य/ Accountant Member �या�यक सद�य/ Judicial Member