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Income Tax Appellate Tribunal, ‘ B’ SMC BENCH : CHENNAI
Before: SHRI JOGINDER SINGH & SHRI A.MOHAN ALANKAMONY
आदेश / O R D E R PER JOGINDER SINGH, VICE PRESIDENT
This is an appeal filed by the assessee against the
order of the Commissioner of Income-tax (Appeals)-5, Chennai
in ITA No.295/CIT(A)-5/2013-14 dated 20.07.2017 for the
assessment year 1980-81, on the grounds, as stated in the
grounds of appeal.
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During hearing the ld.Counsel for the assesee Mr.D.Anand, invited our attention to the delay of 03 days in filing this appeal. The assessee filed an application for condonation of delay stating the reasons of delay. On the other hand, the ld.DR Shri B.Sagadevan contended that the delay may not be condoned and the assessee is expected to explain the delay of each day.
2.1 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, 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 appeal is 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 appeal. In matters concerning the filing of appeal, 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
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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.
2.2 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 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 ofjustice 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
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preferred. The Hon’ble Apex Court in Vedabhai vs Santaram 253
ITR 798(SC) 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:-
“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.”
2.3 Furthermore, the Hon'ble Supreme Court in the case of
Vedabai Alia Vaijayanatabai Baburao Patil vs.Shantaram
Baburao Patil 253 ITR 798 (SC) held that the court has to
exercise the discretion on the facts of each case keeping in mind
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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 (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, we are satisfied with the explanation of the assessee and condone the delay.
We have considered the rival submissions and note that the appeal of the assessee was posted before the ld.First Appelalte Authority on various occasions wherein either the assessee did not appear, or sought adjournments and finally the appeal of the
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assessee was decided exparte. The contention before the ld.CIT(A) as well as before the Tribunal is that the ld.A.O failed to serve the notice upon the assessee before framing the reassessment u/s.143(3) and thus, the assessment was framed without proper notice. We have also perused the reasons for making the additions by the ld.A.O. However, one fact is clearly oozing out that the impugned order was passed without providing opportunity to the assessee as the adjournment was sought by the asssessee, which was declined and an exparte order was passed. Thus, keeping in view of the principal of the natural justice, we are of the view that no person should be condemned unheard. At the same time, the assessee is also directed to be vigilant in future and is expected to attend the hearing on the appointed date. There is a laxity on the part of the assessee also. We deem it appropriate to remand this appeal to the file of the ld.CIT(A) for fresh adjudication on merits in accordance with law. The assessee be given opportunity of being heard with further liberty to furnish necessary evidence to substantiate its claim. Thus, the appeal is allowed for statistical purposes only.
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Finally, the appeal of the assessee is allowed for statistical purposes.
This order was pronounced in the open court, at the conclusion of the hearing, in the presence of learned counsel from both sides on 03rd December, 2018.
Sd/- Sd/- (ए. मोहन अलंकामणी) (जो�ग�दर �संह) (A.MOHAN ALANKAMONY) (JOGINDER SINGH) लेखा सद�य /ACCOUNTANT MEMBER उपा�य� /VICE PRESIDENT चे�नई/Chennai �दनांक/Dated: 03rd December, 2018. K S Sundaram
आदेश क� ��त�ल�प अ�े�षत/Copy to: 1. अपीलाथ�/Appellant 3. आयकर आयु�त (अपील)/CIT(A) 5. �वभागीय ��त�न�ध/DR 2. ��यथ�/Respondent 4. आयकर आयु�त/CIT 6. गाड� फाईल/GF