SRI SNEHASISH BHAUMIK,KOLKATA vs. PCIT-17, KOLKATA
Before: SHRI RAJESH KUMAR, AM & SHRI SONJOY SARMA, JM Sri Snehasish Bhaumik A-3/2, Labony Estate, Salt Lake, Kolkata, West Bengal, 700064 Vs. PCIT-17 Uttarapan Complex, Maniktala Civic Centre, Block-DFS-4, Kolkata, West Bengal, 700054 (Appellant) (Respondent) PAN No. ADYPB8516H
Per Rajesh Kumar, AM:
This is an appeal preferred by the assessee against the order of the Commissioner of Income-tax (Appeals), Kolkata-17 (hereinafter referred to as the “Ld. CIT(A)”] dated 18.03.2019 for the AY 2014-15. 02. At the outset, the ld. Counsel for the assessee brought to our notice that there is a delay in filing the appeal by 1722 days, for which the condonation petition along with affidavit dated 26.04.2024 was also filed. The ld. Counsel for the assessee submitted that due to the wrong advice of the counsel, the assessee could not file the appeal against the revisionary order passed by the ld. PCIT u/s 263 of the Act. The ld. Counsel for the assessee submitted that the revisionary order was passed by ld. CIT (A) on 18.03.2019. The ld. Counsel for the assessee further submitted that the said order u/s 263 of the Act
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was handed over to the Counsel of the assessee Shri PJ Bhide, FCA, who appeared in the set aside proceeding before the ld. AO and the assessment order u/s 143(3)/ 263 of the Act came to be passed on 12.12.2019. The ld. AR submitted that the appeal was preferred before the ld. CIT (A) against the said order on 16.10.2020 and appellate order was passed on 31.10.2023. The counsel of the assessee submitted that the said order was appealed before the Tribunal on 21.12.2023. It was only then the assessee was advised by the present Counsel Shri Soumitra Choudhury, advocate to file the appeal against the revisionary order passed u/s 263 of the Act dated
18.03.2019, with a condonation petition and accordingly, the same was prepared and filed before the Tribunal. The ld. Counsel for the assessee submitted that the delay in filing the appeal was totally beyond the control of the assessee and it was not for any ulterior purposes. The ld. AR further submitted that the assessee is not benefitted in any manner with the late filing of the appeal. The ld. AR thereafter by relying on the decision of Hon'ble Supreme Court in case of Hon'ble Supreme court from the decision in the case of Collector
Land Acquisition Vs. Mst. Katiji & Others, 1987 AIR 1353 and in the case of Improvement Trust vs. Ujagar Singh & Ors. [2010] 6SCC 786
(SC). Finally, the Ld. A.R prayed that the appeal may be admitted for hearing.
03. The ld. DR on the other hand strongly opposed the argument of the counsel of the assessee by submitting that there was no reasonable and sufficient cause for not filing the appeal therefore, the condonation deserves to be dismissed in limine.
04. After hearing the rival contentions and perusing the materials available on record, we find that in this case, the assessee has not filed the appeal against the order passed u/s 263 of the Act dated
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03.2019, under the advice of the Counsel Shri P.J. Bhide. Thereafter the assessment was completed in the set aside proceeding vide order dated 12.12.2019, passed u/s 143(3)/ 263 of the Act, against which was appealed before the first appellate authority on 16.01.2020 and finally, the appellate order came to be passed on 31.10.2023. The assessee preferred the appeal before the Tribunal on 21.12.2023, against the said appellate order. It is only then the assessee was advised by the Counsel Shri Soumitra Choudhury, Advocate to file an appeal against the revisionary order dated 18.03.2019, should be preferred along with application of condonation of delay. Accordingly, the appeal documents were prepared, signed and appeal was filed with a delay of 1705 days. In our opinion, the delay is purely due to the reasons beyond the control of the assessee and the assessee should not suffer due to the wrong advice of the counsel of the assessee. In our opinion, the case of substantial justice should prevail over the technicalities and assessee should not be denied the opportunity to present its case on merit. 05. We have duly considered the rival contentions and gone through the record carefully. Sub-section 5 of Section 253 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 Sri Snehasish Bhaumik; A.Y. 2014-15
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.
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.
"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.
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.
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 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."
In the light of above, if we examine the facts of the present case and observe that substantial justice must prevail over technicalities. 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. 07. The only issue raised by the assessee is against the revisionary order passed u/s 263 of the Act, which is completely arbitrary, unjustified and illegal and prayed to be quashed. Sri Snehasish Bhaumik; A.Y. 2014-15
The facts in brief are that the assessment order u/s 143(3) came to be passed on 26.10.2016, determining the total income at ₹10,83,350/-. The ld. PCIT on examination of the assessment record found that the ld. AO had completed the assessment without making necessary enquiry/ verification and thus, failed to bring on record the Short-Term Capital Gain of ₹30,36,003/- by accepting the assessee’s claim of Long-Term Capital Gain of ₹4,12,278/-. The ld. PCIT noted that the ld. AO has wrongly allowed ADSR (Assistant District Sub-