PRAVIN DOLAS,MUMBAI vs. ITO 15(1)(3), MUMBAI

Before Shri Joginder Singh, Judicial Member, and Shri N.K. Pradhan, Accountant Member Assessment Year: 2009-10 Shri Pravin Dolas, Income Tax Officer, Bldg. No.T/28, 2nd Floor, Ward-15(1)(3), बनाम/ Room No.202,Pratikshanagar, Mumbai Vs. Sion Koliwada, Mumbai-400022 ("नधा"रती /Assessee) (राज"व /Revenue) P.A. No. AICPD6505H "नधा"रती क" ओर से / Assessee by Shri Fenil Bhatt Shri V. Justin-DR राज"व क" ओर से / Revenue by 28/05/2018 सुनवाई क" तार"ख / Date of Hearing : 28/05/2018 आदेश क" तार"ख /Date of Order: आदेश / O R D E R Per Joginder Singh (Judicial Member) The assessee is aggrieved by the impugned order dated 16/03/2015 of the Ld. First Appellate Authority, Mumbai, in 2 Pravin Dolas not condoning the delay of 437 days in filing the appeal before the First Appellate Authority and ignoring the reasons of delay explained in the affidavit filed before the Ld. Commissioner of Income Tax (Appeal).

2.1. We have considered the rival submissions and perused the material available on record. In view of the 3 Pravin Dolas 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 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.

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 4 Pravin Dolas 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 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 malafide 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 Pravin Dolas “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 held that the court has to exercise the discretion on the facts of each case keeping in 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.

2.4. 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 Pravin Dolas (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, we have condoned the delay, the Ld. Commissioner of Income Tax (Appeal) is directed to adjudicate the appeal of the assessee on merit. The assessee be given opportunity to substantiate its claim with documentary evidence, if any. However, we find that the assessee was served upon various notices by the Ld. Assessing Officer and still the assessee did not appear resulting into passing an ex-parte

order u/s 144 of the Act. Thus, the assessee is directed to remain more vigilant in future and to attend the proceedings.

Finally, the appeal of the assessee is allowed for statistical purposes.