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Income Tax Appellate Tribunal, MUMBAI BENCHES “J”, MUMBAI
Before: Shri Joginder Singh, & Shri N.K. Pradhan
Per Joginder Singh (Judicial Member) The assessee is aggrieved by the impugned order dated
23/12/2016 of the Ld. First Appellate Authority, Mumbai, for not condoning the delay of 84 days which is in violation of principle of nature justice.
During hearing, Shri Shriram Bajaj, Ld. counsel for the assessee, contended that prima facie the assessee is having a good case in its favour as addition under section 69C
of the Act was made on account of alleged bogus purchases. It was contended that the First Appellate Authority did not condone the delay of 84 days and the appeal was not adjudicated on merit, therefore, it was pleaded that the appeal
may be decided on merit. On the other hand, Ms. Aarju
Garodia, ld. DR, contended that it was the duty of the assessee to explain the delay, which could not be explained,
therefore, the appeal of the assessee may be dismissed.
We have considered the rival submissions and perused the material available on record. In view of the assertions made by the ld. respective counsel, so far as,
3 Shree Raj Home Makers condonation of delay is concerned 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 condone 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 in justice 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 4 Shree Raj Home Makers reason that 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. The Hon’ble Apex Court in Vedabhai vs Santaram 253 ITR 798
observed that inordinate delay calls of cautious approach.
This means that there should be no mala-fide or dilatory
tactics. Sufficient cause should receive liberal construction to advance substantial justice. The Hon’ble Apex Court in 167
ITR 471 observed as under:-
5 Shree Raj Home Makers “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 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.”
Furthermore, the Hon'ble Supreme Court in the mind that in construing the expression ‘sufficient cause’, the principle of advancing substantial justice is of prime
importance. The court held that the expression “sufficient
cause” should receive liberal construction.
The decision of the Tribunal in People Infocom
Private Ltd. v/s CIT (ITA No.210/Mum/2013) order dated
19/05/2016, M/s Neutron Services Centre Pvt. Ltd vs ITO
6 Shree Raj Home Makers (ITA No.1180/Mum/2012) order dated 18/02/2016, Shri
Saidatta Coop-. Credit Society Ltd. v/s ITO (ITA
No.2379/Mum/2015) order dated 15/01/2016 and Mr.
Nikunj Barot (Prop. Enigma) vs ITO (ITA No.4887/Mum/2015)
order dated 06/01/2016, wherein, substantial delay was condoned, supports the case of the present assessee. Having
made the aforesaid observation and various decisions
discussed hereinabove, including from Hon’ble Apex Court, the circumstances narrated by the assessee, wherein, he has stated the reasons which caused the delay, therefore, the delay
is condoned.
Since, the delay has been condoned and the Ld.
Commissioner of Income Tax (Appeal) has not adjudicated the appeal of the assessee on merit, we deem it appropriate to remand this appeal to the file of the Ld. Commissioner of Income Tax (Appeal) to adjudicate the same on merit, in accordance with law. The assessee be given opportunity of being heard with further liberty to furnish evidence, if any, in support of its claim. Thus, the appeal of the assessee is allowed for statistical purposes only.
7 Shree Raj Home Makers Finally, the appeal of the assessee is allowed for statistical purposes only.
This Order was pronounced in the open court in the presence of ld. representatives from both sides at the conclusion of the hearing on 03/07/2018. (N.K. Pradhan) (Joginder Singh) लेखा सद"य / ACCOUNTANT MEMBER "या"यक सद"य / JUDICIAL MEMBER मुंबई Mumbai; "दनांक Dated : 03/07/2018
f{x~{tÜ? P.S /"नजी स"चव
आदेश क" ""त"ल"प अ"े"षत/Copy of the Order forwarded to : 1. अपीलाथ" / The Appellant
""यथ" / The Respondent. 3. आयकर आयु"त(अपील) / The CIT, Mumbai. 4. आयकर आयु"त / CIT(A)- , Mumbai
"वभागीय ""त"न"ध, आयकर अपील"य अ"धकरण, मुंबई / DR, ITAT, Mumbai 6. गाड" फाईल / Guard file.
आदेशानुसार/ BY ORDER,
उप/सहायक पंजीकार (Dy./Asstt.