SH. RAJESH GUPTA,ALWAR vs. ITO, WARD-BHIWADI, ALWAR, ALWAR

1 Apropos grounds of appeal of the assessee, brief facts of the case are that assessee is engaged in trading business of food grains in the name of M/s Rajesh Kumar & Sons. He filed return declaring total income of Rs.10,38,370/-. The case was selected for scrutiny to verify the genuineness of purchases made from the suppliers who are non-filers and the genuineness of the expenses claimed. The assessee filed reply to notices u/s 142(1) dt. 26.10.2021 and 03.12.2021. However no reply was filed to show cause notice dt. 15.03.2022. The AO verified the ledgers of purchases, quantitative details, bank statements, stock valuation and the turnover as per GST Annual return. He however, held that out of the total purchases made, 18 suppliers involving purchase of Rs. 18,62,67,910/- are non-filers of return and thus cannot be treated as fully genuine. Hence to cover the discrepancy 10% of the total purchases i.e., 18,94,020/- is disallowed. He further disallowed 20% of the expenses of Rs.1,56,700/- i.e., Rs.31,340/- and thus assessed total income vide order u/s 143(3) dt. 23.09.2022 at Rs.29,32,390/-. We have considered the facts of the case and gone through the relevant material on record. We note that assessee has explained the reasons for delay in filing the appeal. These reasons are not vague and general in nature as held by ld. CIT(A). The delay of 94 days is otherwise not inordinate. Hon’ble Supreme Court in case of Collector, Land Acquisition Vs. Mst. Katiji& Others 167 ITR 471 (SC) has held that the legislature has conferred the power to condone delay by enacting section 5 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 meaningful manner which subverses 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) 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. In view of the above, the Ld. CIT(A) was not correct in not admitting the appeal. We further find that assessee has not responded to show cause notice dt. 15.03.2022 though w.r.t earlier reply filed AO has verified the purchases, quantitative value, fall in GP rate, etc. Before ld. CIT(A) assessee has contended that AO has not supplied the name and address of 18 suppliers who are stated to be non-filers of the return. details of 18 parties who are non-filers of return and after considering the response of the assessee frame denovo assessment. The AO would also relook the disallowance of 20% of expenses made by him. Thus the appeal of the assesse is allowed for statistical purpose. 3.0 In the result, the appeal of the assessee is allowed for statistical purposes.