INDO THAI FLEXIBLE TUBES LTD.,KOLKATA vs. DCIT, CIR-1(1), KOLKATA, KOLKATA

- This appeal by the assessee is against the order of Commissioner of Income Tax (Appeals)-I, Kolkata dated 17.03.2016. Assessment was framed by DCIT, Circle- 1, Kolkata u/s 144 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) vide his order dated 28.03.2013 for assessment year 2010-11.

At the outset, it is observed that there was a delay of 432 days on the part of the assessee in filing the appeal before ld. CIT(A). Before the ld. CIT(A) it was explained by the assessee that the professional to whom the appeal filing work was assigned left the organization without completing the same. And the assessee was under the belief that the professional has completed the task assigned to him but later on it was A.Y.2010-11 Indo Thai Flexible Tubes Ltd. Vs. DCIT Cir-1(1), Kol. Page 2 discovered that the appeal filing work was still pending. Therefore the delay occurred. However, the ld. CIT(A) dismissed the appeal on account of delay in filing the appeal and by observing that the reasons for delay in filing the appeal was not substantiated. 2.1 However the ld. AR before us reiterated the submission as made before the ld. CIT(A) and placed his reliance on the principles laid down by the Apex Court in case titled as Collector Land Acquisition, ... vs....... Mst. Katiji & Ors (1987 AIR 1353, 1987 SCR (2) 387) wherein it was held as under : "When substantial justice and technical considerations are A 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." "It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so." On the contrary the ld. DR submitted that the assessee before the ld. CIT(A) failed to substantiate its claim to justify that the delay occurred due to the professional who left the organisation without completing the appeal filing work which was assigned to him. The ld. DR vehemently supported the order of ld. CIT(A).

We have heard the rival parties and perused the materials on record. Indeed, there was delay in filing the appeal by the assessee for 432 days before the ld. CIT(A). As per the assessee the delay in filing the appeal occurred due to the fact that the professional to whom the appeal filing work was assigned left the organisation without completing the same whereas the assessee was under the belief that the work assigned to the professional has been completed. From the aforesaid discussion, we find that the reasons furnished by the assessee were considered by the ld. CIT(A) as reasonable but the same was not substantiated on the basis of documentary evidence therefore the appeal of the assessee was dismissed. A.Y.2010-11 Indo Thai Flexible Tubes Ltd. Vs. DCIT Cir-1(1), Kol. Page 3 The undisputed fact is that the assessee in the present case is a limited company and duly registered with the Registrar of Companies. The assessee being a legal entity/ artificial juridical person has to undergo to comply certain statutory obligation under the Companies Act 1956. Therefore, it requires assistance of the professional for the proper & timely compliance of the provisions of the Companies Act as well as other Act including Income Tax Act. Therefore, it is expected that the company shall act in more professional manner. Besides the above, we also note that the assessee for the year under consideration i.e. 31.3.2010 has declared sales of Rs.32,03,85,514/- and incurred the expenses of Rs.38,635/- under the head ‘legal consultancy, professional charges’. The above information indicates/ suggests that the company is functioning and assisted by the professionals. In view of above an inference can be drawn that delay in filing the appeal by the assessee before the ld. CIT(A) was neither deliberate nor out of negligence but due to the fault of the professional/ consultant as discussed above. Hence on the aforesaid analyzation we feel that there was sufficient cause for condoning the delay in the institution of the appeal before the ld. CIT(A). In holding so, we find guidance & support from the judgment of Hon’ble Supreme Court in the case of Collector, Land Acquisition v. Mst. Katiji [1987] 167 ITR 471/ 35 Taxman 17 , wherein it held that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in injustice being done because of a no deliberate delay. The Supreme Court, in the case of Concord of India Insurance Co. Ltd. v. Smt. Nirmala Devi [1979] 118 ITR 507, held that it is a settled principle that mistake of counsel may in certain circumstances be taken into account in condoning the delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground. According to the Hon'ble Supreme Court, what is to be looked