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Income Tax Appellate Tribunal, MUMBAI BENCHES “SMC”, MUMBAI
Before: Shri Joginder Singh,
आदेश / O R D E R
This bunch of four appeals is by the assessee against the impugned orders all dated 20/06/2017 of the Ld. First Appellate Authority, Mumbai.
During hearing, the ld. counsel for the assessee, Shri Jitendra Singh, invited my attention to the fact that all the appeals were filed let and thus barred by limitation for 49 days. The assessee has moved application for codonation of delay stating the reasons therein and contended that the delay may be condoned. The Ld. DR, Ms. N. Hemalatha, contended that delay may not be condoned.
2.1. I 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 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 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.
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 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.”
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 (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 ground raised, on merit is concerned, it was explained that the impugned orders were passed by the First Appellate Authority and dismissed the appeal merely on technical grounds as were filed on manual form instead of ‘e- form’ prescribed by CBDT without appreciating that the assessee due to some difficulties could not be able to e-file the appeal memos, without providing opportunity of being heard to the assessee. The Ld. DR contended that the assessee was expected to e-file on prescribed form.
3.1. I have considered the rival submissions and perused the material available on record. Without going into much deliberation, I am of the view that merely on technical grounds, the appeals should not have been dismissed and the assessee should have been heard on merit. The assessee is a proprietor of Hemkiran Electronics. Additions u/s 68 of the Income Tax Act, 1961 (hereinafter the Act) were made while passing the order u/s 143(3) r.w.s. 147 of the Act.
Admittedly, the assessee was expected to file the appeals electronically as per Circular No.20 automatically does not lead to the conclusion that if due to technical reasons, the same is filed manually, it will be treated not maintainable. If the Ld. Commissioner of Income Tax (Appeal) was not satisfied with manual filing, nothing prevented him to hear the practical difficulties of the assessee and then to adjudicate the same. The appeals were filed on manual form on 13/02/2017. Even otherwise, as per Article-265 of the Constitution of India only due are to be levied/collected, therefore, without going into much deliberation, the Ld. Commissioner of Income Tax (Appeal) is directed to adjudicated the appeals of the assessee on merit afresh. The assessee be given opportunity of being heard with further liberty to furnish evidence, if any, to substantiate his claim.
Thus, all the appeals are allowed for statistical purposes.
Finally, the appeals of the assessee are allowed for statistical purposes.
This order was pronounced in the open court in the presence of ld. representative from both sides at the conclusion of the hearing on 04/01/2018.