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Income Tax Appellate Tribunal, MUMBAI BENCHES “D”, MUMBAI
Before: Shri JOGINDER SINGH, & Shri G. MANJUNATHA
Per Bench The assessee is aggrieved by the impugned orders all dated 12.02.2016 of the ld. First Appellate Authority, Mumbai for assessment years 2008-09 to 2011-12 on the grounds stated in the grounds of appeal raised in the respective appeal.
During hearing, Shri K. Gopal, ld. counsel for the assessee invited our attention to the delay of 15 days in filing these appeals before this Tribunal. The assessee has filed application/affidavit for condonation of delay, stating the reason therein. The Ld. Commissioner of Income Tax (Appeal)-DR contended that the assessee has 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,
3 M/s. Konkan Railway Corporation Ltd. 3313, 3314 & 3315/Mumbai/2016 Assessment Year: 2008-09, 2009-10, 2010-11 & 2011-12 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 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 to further the cause of substantial justice. This is for the reason that an 4 M/s. Konkan Railway Corporation Ltd. 3313, 3314 & 3315/Mumbai/2016 Assessment Year: 2008-09, 2009-10, 2010-11 & 2011-12 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(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:-
5 M/s. Konkan Railway Corporation Ltd. 3313, 3314 & 3315/Mumbai/2016 Assessment Year: 2008-09, 2009-10, 2010-11 & 2011-12
“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 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.
6 M/s. Konkan Railway Corporation Ltd. 3313, 3314 & 3315/Mumbai/2016 Assessment Year: 2008-09, 2009-10, 2010-11 & 2011-12 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 (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, therefore, condone the delay.
So far as merits of the appeal are concerned, the assessee has filed an affidavit contradicting the observation made by the ld. First Appellate Authority
7 M/s. Konkan Railway Corporation Ltd. 3313, 3314 & 3315/Mumbai/2016 Assessment Year: 2008-09, 2009-10, 2010-11 & 2011-12 claiming that the observation made in Para- 2.5.1 in factually incorrect and the assessee/counsel for the assessee never admitted that the grounds raised in the respective appeal are covered against the assessee by the order of assessment years 2004-05 to 2007-08. The said affidavit has been sworn by Shri V. J.
Subramanium, Chartered Accountant who appeared before the Ld. Commissioner of Income Tax (Appeal).
The Ld. Commissioner of Income Tax (Appeal) DR, Shri Abhijit Patankar contended that serious allegation has been leveled by the assessee and the observation made by the Ld. Commissioner of Income Tax (Appeal) in Para-2.5.1, therefore, this claim of the assessee needs verification.
3.1 We have considered the rival submissions and perused the material available on record. Without going into much deliberation/merit of the appeal, in view of the affidavit filed by the Chartered Accountant, we deem it appropriate to remand these appeals to the file of Ld. Commissioner of Income Tax (Appeal) to 8 M/s. Konkan Railway Corporation Ltd. 3313, 3314 & 3315/Mumbai/2016 Assessment Year: 2008-09, 2009-10, 2010-11 & 2011-12 examine the claim of the assessee/authenticity of the affidavit with respect to the observation made in Para- 2.5.1 of the impugned order and direct the Ld. Commissioner of Income Tax (Appeal) to decide the appeals afresh in accordance with law. The assessee is directed to file the copy of this affidavit before the Ld. Commissioner of Income Tax (Appeal). Thus, these appeals of the assessee are remanded back to the file of Ld. Commissioner of Income Tax (Appeal), consequently, allowed for statistical purposes only.
Finally, the appeals of the assessee are allowed for statistical purposes only.
This Order was pronounced in the open court in the presence of learned representatives from both sides at the conclusion of the hearing on 9th March, 2018.