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Income Tax Appellate Tribunal, MUMBAI “SMC” BENCHES, MUMBAI
Before: Shri Joginder Singh
आदेश / O R D E R
The assessee is aggrieved by the impugned order dated 16/11/2016 of the ld. First Appellate Authority, Mumbai. The ground raised in the present appeal pertains to non- consideration of addition ground of appeal taken before the
2 ITA No.4797/Mum/2017 (M/s. Can Properties Pvt. Ltd. ) ld. First Appellate Authority with respect to application of provisions of section 23(1)(c) of the Income Tax Act, 1961 (hereinafter the Act).
During hearing, ld. counsel for the assessee Dr. P. Daniel invited my attention for condonation of delay of 135 days. The assessee is also moved an application for condonation of delay, supported by an affidavit, explaining the reasons of delay. It was submitted that considering the reasons, the delay may be condoned. On the other hand, the ld. DR - Ms. N. Hemalatha contended that the assessee was expected to explain delay of each day, therefore, delay may not be condoned.
I have considered the rival submissions and perused the material available on record. 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
3 ITA No.4797/Mum/2017 (M/s. Can Properties Pvt. Ltd. ) 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 in justice on technical grounds but because it is capable of removing injustice and is expected to do so.
3.1. 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
4 ITA No.4797/Mum/2017 (M/s. Can Properties Pvt. Ltd. ) 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:- “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.”
3.2. 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
5 ITA No.4797/Mum/2017 (M/s. Can Properties Pvt. Ltd. ) 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.
3.3. 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, the delay is condoned.
So far as the merits of the issue is concerned, the ld. counsel contended that the ld. Assessing Officer is to
6 ITA No.4797/Mum/2017 (M/s. Can Properties Pvt. Ltd. ) follow the order in MA No. 329/Mum/2017 (Arising out of ITA No. 7294/Mum/2017) order dated 26/12/2017. It was contended that the assessee made efforts and due to vastu problem the brokers were regularly coming and going back. On the other hand, the ld. DR contended that no sincere efforts were made and it merely an afterthought.
I have considered the rival submissions and perused the material available on record. It is noted that the Tribunal for Assessment Year 2010-11 adjudicated the case of the assessee vide order dated 25/05/2015 wherein considering the decision from Hon'ble Jurisdictional High Court in the case of Tip Top Typography (2014) 48 taxmann.com 191 (Bombay) allowed the appeal of the assessee for statistical purposes. However, the Tribunal vide order dated 26/12/2017, pursuance to Misc. Application (MA No. 323/Mum/2017) mentioning that the order of the Tribunal in the case of Premsudha Exports (P) Ltd. (110 ITD 158, cited by the assessee during original hearing could not be given effect. The order was rectified and the ld. Assessing Officer was directed as under:-
7 ITA No.4797/Mum/2017 (M/s. Can Properties Pvt. Ltd. ) “The assessment is already set aside. We direct the A.O. also to look into the claim of the assessee u/s. 23(l)(c) as all the facts relevant are available before the A.O., he is directed to allow the relief u/s. 23(l)(c) in view of the Tribunal’s decision in the case of Premsudha Exports (P) Ltd. vs. ACIT (CC) Mumbai (2008) 110ITD 158 (Mum) after due verification.” In the light of the above the ld. Assessing Officer is directed to examine the factual matrix of the case of the assessee afresh considering the decision from Hon'ble Bombay High Court in Tip Top Typhography (supra) and also the order in Misc. Application dated 26/12/2017. The assessee be given opportunity to substantiate its claim, thus, the appeal of the assessee is allowed for statistical purposes.
Finally, the appeal of the assessee is allowed for statistical purposes.
This Order was pronounced in the open court in the presence of ld. representatives from both sides at the conclusion of the hearing on 13/02/2018.
Sd/- (Joginder Singh) न्याययक सदस्य / JUDICIAL MEMBER भुिंफई Mumbai; ददनािंक Dated : 13/02/2018 Vr, P.S/.यन. .
8 ITA No.4797/Mum/2017 (M/s. Can Properties Pvt. Ltd. ) आदेश की प्रयिलऱपप अग्रेपिि/Copy of the Order forwarded to : अऩीराथी / The Appellant 1. 2. प्रत्मथी / The Respondent. आमकय आमुक्त(अऩीर) / The CIT, Mumbai. 3. आमकय आमुक्त / CIT(A)- , Mumbai 4. ववबागीम प्रयतयनगध, आमकय अऩीरीम अगधकयण, भुिंफई / DR, 5. ITAT, Mumbai गार्ा पाईर / Guard file. 6. आदेशान सार/ BY ORDER, त्मावऩत प्रयत //True Copy// उप/सहायक पुंजीकार (Dy./Asstt. Registrar) आयकर अपीऱीय अधिकरण, भुिंफई / ITAT, Mumbai