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Income Tax Appellate Tribunal, “SMC” BENCH, MUMBAI
Before: SHRI C. N. PRASAD, JM & SHRI S. RIFAUR RAHMAN, AM
IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, MUMBAI BEFORE SHRI C. N. PRASAD, JM & SHRI S. RIFAUR RAHMAN, AM आयकरअपीलसं./ I.T.A. No. 7376/Mum/2018 (निर्धारणवर्ा / Assessment Year: 2012-13)
ACIT- 17(3), Shri Rajendra Chhaganlal Mumbai, Jain, बिधम/ Pin- 92, Ground Floor, Dhanji Vs. Street, Mandvi, Mumbai-400 003. स्थायीलेखासं./जीआइआरसं./PAN No. ABIPJ5922F (अपीलाथी/Appellant) (प्रत्यथी / Respondent) : अपीलाथीकीओरसे/ Appellant Shri Tanmay Phadke, AR : by प्रत्यथीकीओरसे/Respondentby : Shri Kiran Unavekar, DR सुनवाईकीतारीख/ : 26.02.2020 Date of Hearing घोषणाकीतारीख / : 28.02.2020 Date of Pronouncement आदेश / O R D E R Per S. Rifaur Rahman, Accountant Member: The present Appeal has been filed by the assessee against the order of Ld. Commissioner of Income Tax - 28 in short referred as ‘Ld. CIT(A)’, Mumbai, dated 06.12.18 for Assessment Year (in short AY) 2012-13 on the ground that Ld.
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CIT(A) erred in dismissing the appeal in limini that the affidavit filed by the I.T. Consultant is nothing but a self serving statement of third person.
At the time of hearing, Ld. AR submitted before us that Ld. CIT(A) dismissed the appeal of the assessee without condoning the delay in filing the appeal as no such sufficient cause is established. Even though, assessee has filed the affidavit of Income Tax Consultant was a reasonable cause to condone the delay of 94 days in filing the appeal. But, Ld. CIT(A) erred in dismissing the appeal in limini that the affidavit filed by the I.T. Consultant is nothing but a self serving statement of third person.
On the other hand, Ld. DR relied upon the orders passed by the revenue authorities.
Considering the rival submissions and material placed 4. on record, we notice that the moot question to be adjudicated is with respect to condonation of delay. Broadly, we are of the view, that the Courts and the quasi-judicial bodies are 3 I.T.A. No. 7376/Mum/2018 Shri Rajendra Chhaganlal Jain,
empowered to condone the delay, if a litigant satisfies the Courts that there was sufficient reason for availing the remedy after the expiry of limitation. Such reasoning should be to the satisfaction of the Court. The expression “sufficient cause or reasons” as provided in sub-section (5) of section 253 of the Act is used in identical position in the Limitation Act 1963, and in CPC. Such expression has also been used in other sections of the Income Tax Act such as section 273, 274, etc. Keeping in mind, the authoritative pronouncement from Hon’ble Apex Court, it is admitted position that the words “sufficient cause” appearing in sub-section (5) of section 253 of the Act should receive a liberal construction so as to advance substantial justice. It must be remembered that in every case of delay, there can be some lapses on the part of the litigant concern. That alone is not enough to turn down the plea and to shut the doors against him, unless and until, it makes a mala-fide or a dilatory statutory, the court must show utmost consideration to such litigant. Further the length of delay is immaterial, it is the acceptability of the explanation and that is the only criteria for condoning the delay.
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In such a situation, no doubt filing of an appeal is a right granted under the statute to the assessee and is not an automatic privilege, therefore, the assessee is expected to be vigilant in adhering to the manner and mode in which the appeals are to be filed in terms of the relevant provisions of the Act. Nevertheless, a liberal approach has to be adopted by the appellate authorities, where delay has occurred for “bona fide reasons” on the part of the assessee or the Revenue in filing the appeals. In matters concerning the filing of appeals, in exercise of the statutory right, a refusal to condoned the delay can result in a meritorious matter being thrown out at the threshold, which may lead to miscarriage of justice. The 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.
The Hon’ble Apex Court in a celebrated decision in Collector, Land Acquisition vs Mst. Katiji & Ors. 167 ITR 471 opined that when technical consideration and substantial justice are pitted against each other, the courts are expected to further the cause of substantial justice. This is for the reason that 5 I.T.A. No. 7376/Mum/2018 Shri Rajendra Chhaganlal Jain,
an opposing party, in a dispute, cannot have a vested right in injustice being done because of a non- deliberate delay. Therefore, it follows that while considering matters relating to the condonation of delay, judicious and liberal approach is to be adopted. If “sufficient cause” is found to exist, which is bona- fide one, and not due to negligence of the assessee, the delay needs to condoned in such cases. The expression ‘sufficient cause’ is adequately elastic to enable the courts to apply law in a meaningful manner, which sub-serves the end of justice- that being the life purpose of the existence of the institution of the courts. When substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred. This means that there should be no malafide or dilatory tactics. Sufficient cause should receive liberal construction to advance substantial justice. The Hon’ble Apex Court in Collector, Land Acquisition vs Mst. Katiji & Ors. (167 ITR 471) observed as under:-
“3. The legislature has conferred the power to condone delay by enacting section 51 of the Limitation Act of 1963 in order to enable the courts
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to do substantial justice to parties by disposing of matters on de 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 subserves the ends of justice that being the life-purpose of 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 others courts in the hierarchy.”
In the light of the above judicial pronouncements and keeping in view the principles of natural justice, we are of the considered view that the lis between the parties be decided on merits and no person should be condemned unheard. Therefore, the delay on the part of the assessee in filing appeal before Ld. CIT(A) is condoned and the appeal is remanded back to the file of Ld. CIT(A) to decide the appeal filed by the assessee on merits. It is needless here to mention that before passing the order of assessment, Ld. CIT(A) shall provide sufficient opportunity of hearing to the assesse. Before parting, we may make it clear that our decision to restore the matter back to the file of Ld. CIT(A) shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall 7 I.T.A. No. 7376/Mum/2018 Shri Rajendra Chhaganlal Jain,
be adjudicated by the Ld. CIT(A) independently in accordance with law.
In the net result, appeal filed by the assessee is partly allowed for statistical purposes.
Order pronounced in the open court on 28th Feb 2020. (C. N. Prasad) (S. Rifaur Rahman) न्याययकसदस्य / Judicial Member लेखासदस्य / Accountant Member मुंबई Mumbai;यदनांक Dated : 28.02.2020 Sr.PS. Dhananjay
आदेशकीप्रनिनिनिअग्रेनर्ि/Copy of the Order forwarded to : 1. अपीलाथी/ The Appellant प्रत्यथी/ The Respondent 2. 3. आयकरआयुक्त(अपील) / The CIT(A) 4. आयकरआयुक्त/ CIT- concerned 5. यवभागीयप्रयतयनयि, आयकरअपीलीयअयिकरण, मुंबई/ DR, ITAT, Mumbai गार्डफाईल / Guard File 6. आदेशधिुसधर/ BY ORDER, .उि/सहधयकिंजीकधर (Dy./Asstt.