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Income Tax Appellate Tribunal, DELHI BENCH: ‘C’, NEW DELHI
Appellant By Sh. Shalabh Jasoria,CA Respondent by Sh. Rakhi Vimal, Sr-DR Date of Hearing 27.08.2020 Date of Pronouncement 31.08.2020 ORDER PER BENCH: These are a bunch of 21 appeals wherein the sole issue under challenge is levy of fee u/s 234E of the Income Tax Act, 1961 (hereinafter called as the ‘Act’) in respect of delay in filing the quarterly TDS statements for the captioned assessment years. All these appeals were taken up together for hearing and are being disposed of through this common order for the sake of convenience.
2.0 At the outset, the Ld. Authorized Representative (AR) appearing on behalf of the assessee submitted that all these 21 appeals have been dismissed by the Ld. Commissioner of Income Tax (Appeals) {CIT(A)} by refusing to condone the delay in filing of the appeals before him. He submitted the following chart which depicts the delay in filing in respect of each appeal:-
Date of such Delay in Assessment Income-tax Authority Date of Filing of S. No. Appeal No Order filing year/ Financial passing the order Appeal year appealed against Appeal 1 388332301131218 13/12/2018 2013-14 ACIT- CPCTDS 09/11/2016 771 2 388363961131218 13/12/2018 2013-14 ACIT- CPCTDS 09/11/2016 762 3 388383051131218 13/12/2018 2013-14 ACIT - CPCTDS 09/11/2016 761 4 388411561131218 13/12/2018 2013-14 ACIT-CPC TDS 09/11/2016 761 5 388420471131218 13/12/2018 2013-14 ACIT-CPCTDS 09/11/2016 761 388427411131218 13/12/2018 2013-14 ACIT-CPC TDS 09/11/2016 761 6 388634591141218 13/12/2018 2014-15 ACIT-CPCTDS 01/01/2017 709 7 388652511141218 13/12/2018 2014-15 ACIT- CPC TDS 01/01/2017 709 8 388679541141218 13/12/2018 2014-15 ACIT - CPC TDS 01/01/2017 709 9 388716621141218 13/12/2018 2014-15 ACIT - CPC TDS 01/01/2017 709 10 388844801141218 13/12/2018 2014-15 ACIT-CPCTDS 01/01/2017 709 11 388852641141218 13/12/2018 2014-15 ACIT-CPC TDS 01/01/2017 709 12 388868521141218 13/12/2018 2014-15 ACIT-CPCTDS 01/01/2017 709 13 388890791141218 13/12/2018 2014-15 ACIT-CPCTDS 01/01/2017 709 14 388911421141218 13/12/2018 2015-16 ACIT- CPC TDS 10/11/2015 1126 15 389106581151218 13/12/2018 2015-16 ACIT- CPC TDS 06/11/2016 765 16 389113981151218 13/12/2018 2015-16 ACIT - CPC TDS 10/11/2015 1127 17 389070661151218 13/12/2018 2015-16 ACIT-CPC TDS 06/11/2016 765 18 389138401151218 13/12/2018 2015-16 ACIT - CPC TDS 10/11/2015 1128 19 389212141151218 13/12/2018 2015-16 ACIT-CPC TDS 06/11/2016 765 20 389255051151218 13/12/2018 2015-16 ACIT-CPC TDS 10/11/2015 1127 21 3.0 Referring to the above chart, the Ld. Authorized Representative (AR) submitted that, thus, there is a delay ranging from 709 days to 1128 days in the filing of the appeals before the Ld. CIT(A). The Ld. AR submitted that the delay in filing these appeals was due to the reason that there was a change in counsel for the assessee company and the outgoing counsel had not returned the relevant documents to the assessee company in time.
It was submitted that, thus, the reason for filing the above captioned appeals after the due date was entirely out of control of the assessee company. It was submitted that this explanation was given to the Ld. CIT(A) also but he did not accept the explanation and refused to condone the delay and dismissed the assessee’s appeals without examining the merits of the case.
4.0 The Ld. AR, on a query from the Bench, agreed to re- appear before the Ld. First Appellate Authority to represent its case on merits, if given an opportunity.
5.0 The Ld. Sr. Departmental Representative (DR), per contra, reiterated the findings of the Ld. CIT(A) and vehemently argued that there was substantial delay in filing of the appeals by the assessee which should not be condoned.
6.0 Having heard both the parties and after having gone through the impugned appellate orders, we agree with the contention of the Ld. AR that the Ld. CIT(A) has dismissed the assessee’s appeals without adjudicating on the merits of the issue by simply refusing to condone the delay which had occurred in filing of the appeals before the Ld. CIT(A). The Ld. CIT(A) has refused the assessee’s explanation regarding the delay and has refused to condone the delay by observing that the explanation was not satisfactory. We are of the considered opinion that the assessee had nothing to gain by delaying the filing of the appeals and its bonafide in explaining the delay cannot be ignored. The Hon’ble Apex Court in the case of Collector Land Acquisition, Anantnag & Anr. reported in 1987 SCR (2) 387 has held that liberal approached is to be adopted while exercising the power to condone delay in order to enable the Court to do substantial justice to parties by disposing of matters on merits. The Hon’ble Apex Court held that:
"Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908. may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period."
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. 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.”
6.1 Therefore, in view of substantive justice, respectfully following the dicta of the Hon’ble Apex Court as above, we restore all the captioned appeals to the file of Ld. CIT(A) with the direction to condone the delay and adjudicate the appeals on merits in accordance with the law after giving proper opportunity to the assessee to present its case.
7.0 In the final result, all the captioned appeals stand allowed for statistical purposes. Order pronounced on 31/08/2020.