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Income Tax Appellate Tribunal, “C” BENCH, CHENNAI
Before: SHRI DUVVURU RL REDDY & SHRI S. JAYARAMAN
आदेश/ O R D E R
PER S. JAYARAMAN, ACCOUNTANT MEMBER:
The assessee filed this appeal against the order of the Commissioner of Income Tax (Appeals)-5, Chennai in dated 28.08.2017 for assessment year 2014-15.
:-2-: ITA No: 2741/Chny/2017
The appeal is filed belated by three days. The assessee submitted that the order of the CIT(A) was misplaced. He had to apply for a duplicate copy, the receipt of which was delayed. Hence, the delay in filing the appeal is bonafide and pleaded for condoning the delay. We heard the rival contentions and condone the delay in filing the appeal.
Shri. K. Malmarugan, the assessee, an individual earned salary for the first 10 months in India and other two months in Brazil, where tax was deducted at source. He claimed the benefit of relief u/s. 90 and paid the balance tax as self-assessment tax. While completing the assessment u/s. 143(3), the Assessing Officer refused to grant such relief for want of details.
Aggrieved, the assessee filed an appeal before the CIT(A), but belatedly. The CIT(A) dismissed the appeal for the reason that the assessee has not explained the delay on day to day basis.
The AR submitted that at the time of filing the appeal before the CIT(A), the assessee was residing in Brazil and his neighbour in India is the only person to intimate about the letters received by the assessee and hence the assessee was unable to respond to the order within the specified date.
He pleaded to condone the delay and decide the appeal on merits. However, the Ld. CIT(A) refused to condone the delay and dismissed the appeal as barred by limitation . Per contra, the DR supported the order of the CIT(A).
:-3-: ITA No: 2741/Chny/2017
We heard the rival submissions. The assessee is an individual and at the time of appeal, he was residing at Brazil. He pleaded that he had totally dependent on his neighbour in India and he had received intimation about the Income Tax Department order much later and hence he was unable to respond to the order within the specified date. The Supreme Court has held that “ ‘every day’s delay must be explained ’ does not mean that a pedantic approach should be made why not every hour’s delay, every second’s delay?
The doctrine must be applied in a rational, common sense, pragmatic manner.
When substantial justice and technical consideration are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non- deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides.
A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. It must be grasped that judiciary in 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.” In this case, the assessee is an individual, earned salary for the first 10 months in India and other two months in Brazil, where tax was deducted at source, for which he has filed the details before the CIT(A) and explained the reasons for delay which do not appear to be malafide. Further, he is seeking relief based on certain material.
:-4-: ITA No: 2741/Chny/2017 In the facts and circumstances, we condone the delay in filing the appeal before the CIT(A) and direct the CIT(A) to hear the case on merits and decide the issue, after affording adequate opportunity to the assessee, in accordance with law.
In the result, the assessee’s appeal is treated as allowed for statistical purposes.
Order pronounced on Monday, the 09th day of April, 2018 at Chennai.