SH. DAL CHAND SHARMA,ALWAR vs. ITO, WARD-1(2), ALWAR, ALWAR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”A” JAIPUR Mk0 ,l- lhrky{eh] U;kf;d lnL; ,oa Jh jkBkSM+ deys'k t;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA. No. 101/JPR/2024 fu/kZkj.k o"kZ@Assessment Years : 2018-19 Sh. Dal Chand Sharma cuke ITO, Vs. 30/234A, Bapu Bazar, Ward-1(2), Alwar. Alwar. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ARPPC4741E vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri P.C. Parwal (C.A.) jktLo dh vksj ls@ Revenue by : Shri A. S. Nehra (Addl.CIT) a lquokbZ dh rkjh[k@ Date of Hearing : 08/05/2024 mn?kks"k.kk dh rkjh[k@Date of Pronouncement : 27/05/2024 vkns'k@ ORDER

PER: DR. S. SEETHALAKSHMI, J.M.

This appeal is filed by the assessee aggrieved from the order of the CIT(A), National Faceless Appeal Centre, Delhi dated 21.01.2024 [Here in after referred as “CIT(A)/NFAC”] for the assessment year 2018-19, which in turn arise from the order dated 14.02.2023 passed under section 147 r.w.s. 144 read with section 144B of the Income Tax Act, [Here in after referred as “Act” ] by the AO.

2 ITA No. 101/JPR/2024 Sh. Dal Chand Sharma vs.ITO 2. The assessee has raised following grounds:- “1. Ld. CIT(A), NFAC has erred on facts and in law in dismissing the appeal filed by the assessee on the ground that appeal filed is in admissible as barred by limitation. 2. The Ld. CIT(a), NFAC has erred on facts and in law in not considering the fact that assessee sold his residential house for Rs. 31 lacs and not for Rs. 62 lacs and the capital gain on sale of the house worked out at Rs. 1,69,683/- and thereby confirming the addition of Rs. 62 lacs made by AO by dismissing the appeal of assessee on technical issue. 3. The appellant craves to alter, amend and modify any ground of appeal. 4. Necessary cost be awarded to the assessee.”

3 ITA No. 101/JPR/2024 Sh. Dal Chand Sharma vs.ITO vide letter 27.07.2023, address on notice was of property which was already sold by the assessee, as per assessment order addition of Short term Capital Gain of Rs. 62,00,000/- is made, however the assessee sold the said Property for Rs. 31,00,000/- only. As per assessment order the ld. AO has reopened the case under section 148 on dated 27.03 2022 information fagged by the risk management strategy formulated in this regard suggesting that income chargeable to tax has escaped assessment within the meaning of section 147 of the Act. Order under sub-section (d) of section 148A of the Act has been passed on 25.03.2022. So case was reopened by the AO u/s 148 on the basis of insight portal in which registry of Rs. 31,00,000/- was uploaded twice as under:-

a. SFT-012 by Inspector General Registrar and Stamp, Bani Park, Jaipur, transaction dated 25.07.2018 Rs. 31,00,000/-

b. SFT-012 by same authority the same transaction date and with same amount of Rs. 31,00,000/-

The AO had not verified the transaction reported by authority whereas he had to verify the same u/s 148A(a) before issuing SCN u/s 148A(b) as per new provision of Income Tax Act so the basis of reopening of the case was made mechanically.

4 ITA No. 101/JPR/2024 Sh. Dal Chand Sharma vs.ITO 3.1 The ld. AO noted that the said notice u/s 148A(b) as well as notice u/s 148 of the Act was not served to the assessee as assessee did not have access to e-proceedings portal as well as no notice served manually and as per assessment order address was given on notice was a property which was already sold by the assessee, the ld. AO had the option to get it served in his address given in PAN No. and Aadhar Card. As no notice served to the assessee so assessee could not attend the hearing, the ld. AO made an addition u/s 144 of the Act without going through the registry that the assessee sold property for Rs. 31,00,000/- and was a long term asset. The ld. AO added the income as short term capital gain of Rs. 62,00,000/- is wrong in fact and circumstances as unexplained source by assuming that the assessee was purchaser of the property.

“The appellant has failed to furnish a valid reason for not filling appeal in time. When an appeal is filed beyond the statutory time limit, the Appellant

5 ITA No. 101/JPR/2024 Sh. Dal Chand Sharma vs.ITO need to provide a valid reason or demonstrate exceptional circumstances for the delay. The appellant must be able to demonstrate that there was "sufficient cause" which obstructed his action to file Appeal beyond the prescribed time limit. Thus, the condonation of delay is not automatic but is based upon on the facts of the case. The next question arises whether delay was excessive or inordinate I have considered the submissions and perused the submissions of the appellant. As far as the delay in filing the appeal by 144 days is concerned, one has to admit that the delay involved is inordinate and not marginal. Personal problems or financial constraints per se could not constitute a reasonable cause, it is settled position of law that it is only marginal delays that can be condoned, and not inordinate delays. A liberal view ought to be taken in terms of delay of few days. However, when there is inordinate delay, one should be very cautious while condoning the delay. The delay of 144 days cannot be condoned simply because the appellant's case is hard and calls for sympathy or merely out of benevolence to the party seeking relief. In granting the indulgence and condoning the delay, it must be proved beyond the shadow of doubt that the appellant was diligent and was not guilty of negligence whatsoever. The sufficient cause within the contemplation of the limitation provision must be a cause which is beyond the control of the party invoking the aid of the provisions. The Supreme Court in the case of Ramlal v. Rewa Coalfields Ltd., AIR 1962 SC 361 has held that the cause for the delay in filing the appeal which by due care and attention could have been avoided cannot be a sufficient cause within the meaning of the limitation provision. Where no negligence, nor inaction, or want of bona fides can be imputed to the appellant a liberal construction of the provisions has to be made in order to advance substantial justice. Seekers of justice must come with clean hands. In the present case, the reasons advanced by the appellant do not show any good and sufficient reason to condone the delays. The delays are not properly explained by the appellant. There is no reason for condoning such delay in this case. The delay is nothing but negligence and inaction of the appellant which could have been very well avoided by the exercise of due care and attention. Further the appellant has not shown from record that any efforts were made for filing of the appeal on time. It is the duty of the appellant to file the appeal within the stipulated time provided under the Act unless the appellant is prevented by a reasonable cause from filing of the appeal in time. The appellant ought to have filed the appeal within the prescribed time limit of 30 days from date of service as per section 249(2) of the Act and any delay therein may be condoned only subject to the satisfaction that the appellant had

6 ITA No. 101/JPR/2024 Sh. Dal Chand Sharma vs.ITO sufficient cause for not presenting it within that period, as evident from the plain language. of section 249 extracted as under: "249(2) the appeal shall be presented within thirty days of the following date, that is to say.- (a) Where the appeal is under section 248, the date of payment of the tax, or (b) Where the appeal relates to any assessment or penalty, the date of service of the notice of demand relating to the assessment or penalty: Provided that, where an application has been made under section 146 for reopening an assessment, the period from the date on which the application is made to the date on which the order passed on the application is served on the assessee shall be excluded: Provided further that where an application has been made under sub- section (1) of section 270AA, the period beginning from the date on which the application is made, to the date on which the order rejecting the application is served on the assessee, shall be excluded, or 1. In any other case, the date on which intimation of the order sought to be appealed against is served. (2) Notwithstanding anything contained in sub-section (2), where an order has been made under section 201 on or after the 1st day of October, 1998 but before the 1st day of June, 2000 and the assessee in default has not presented any appeal within the time specified in that sub-section, he may present such appeal before the 1st day of July, 2000. (3) The Commissioner (Appeals) may admit an appeal after the expiration of the said period if he is satisfied that the appellant had sufficient cause for not presenting it within that period." It is pertinent to note that the delay may be condoned and the appeal may be admitted u/s249(3) only if the appellant could successfully demonstrate that it had sufficient cause for not presenting the appeal within the period of 30 days. The exercise of discretion in condonation of delay in matters of limitation, such as in the present case u/s 249(3) of the Income Tax Act, 1961 has to be carried out within the meaning of "Sufficient Cause as envisaged in Section 5 of Limitation Act. Hence, the general rule of law of limitation is that an extension shall not be granted under Section 5 if there is no sufficient cause or cogent ground for the condonation of delay, the onus of proving which lies on the appellant/applicant as clearly laid down in the judicial pronouncements by the Highest Courts of Law.

7 ITA No. 101/JPR/2024 Sh. Dal Chand Sharma vs.ITO In the case of Perumon Bhagvathy Devaswom, Perinadu Village v. BhargaviAmma (Dead) by LRs, (2008)8 SCC 321, It was observed by the Hon'ble Court that: "13.... The words "sufficient cause for not making the application within the period of limitation" should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words "sufficient cause" in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant." (Emphasis supplied)". The aforesaid view was reiterated in the case of Balwant Singh (Dead) v. Jagdish Singh, (2010) 8 SCC 685, where in the Court held that "25. We may state that even if the term "sufficient cause has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of "reasonableness as it is understood in its general connotation. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly." The Courts in the abovementioned cases, highlighted upon the importance introducing the concept of "reasonableness while giving the clause "sufficient cause a liberal interpretation. In furtherance of the same, the Courts has cautioned regarding the necessity of distinguishing cases where delay is of few days, as against the cases where the delay is inordinate as it might accrue to the prejudice of the rights of the other party. In such cases, where there exists inordinate delay and the same is attributable to the party's inaction and negligence, the Courts have to take a strict approach so as to protect the substantial rights of the parties.

8 ITA No. 101/JPR/2024 Sh. Dal Chand Sharma vs.ITO The Division bench of the Hon'ble Bombay HC in Ornate Traders Private Limited v. The Income Tax Officer, Mumbai emphasized the need for reasonableness and hence, the actions which can be condoned by the court should fall within the scope of normal human conduct or normal conduct of a litigant. The Hon'ble Bombay HC further observed that while Section 5 of the Limitation Act is being interpreted liberally, it cannot be so liberally that it is without any justification, since condonation of delay in a mechanical or routine manner will jeopardize the legislative intent behind Section 5. The Hon'ble SC in the case of Shiv Dass v. Union of India (UOI) and Ors., AIR 2007 SC 1330 held that the High Courts, while exercising their discretionary powers under Article 226, should consider delay or laches and, refuse to invoke its extraordinary powers if it is found that the applicant had neglected/omitted to assert its rights in a timely manner, however, this discretion has to be exercised judicially and reasonably.

From the above decisions it becomes clear that in the case of condonation of delay where the appeal was filed beyond the limitation of period, the courts are empowered to condone the delay, provided that the Appellant can prove his claim of inability to file appeal within the prescribed period. Litigant must be able to demonstrate that there was "sufficient cause which obstructed his action to file Appeal beyond the prescribed time limit. The law of limitation is found upon the maxims "Interest ReipublicaeUt Sit FinisLitium" that litigation must come to an end in the interest of society as a whole and "vigilantibus non dormientibus Jura subveniunt" that the law assists those that are vigilant with their rights, and not those that sleep thereupon. The law of limitation in India identifies the need for limiting litigation by striking a balance between the interests of the state and the litigant. Apart from the above there are various judgements laying down such position of rejection, which are brought out in following paragraphs. The delay should not be condoned simply because the appellant's case is hard and calls for sympathy or merely out of benevolence to the party seeking relief. In granting the indulgence and condoning the delay it must be proved beyond the shadow of doubt that the appellant was diligent and was not guilty of negligence whatsoever. The sufficient cause within the contemplation of the limitation provision must be a cause which is beyond the control of the party invoking the aid of the provisions. The Hon'ble Supreme Court in the case of Ramlal vs. Rewa Coalfields Ltd. AIR 1962 SC 361 has held that the cause for the delay in filing the appeal which by due care and attention could have been

9 ITA No. 101/JPR/2024 Sh. Dal Chand Sharma vs.ITO avoided cannot be a sufficient cause within the meaning of the limitation provision. Where no negligence, nor inaction, or want of bona fides can be imputed to the appellant a liberal construction of the provisions has to be made in order to advance substantial justice Seekers of justice must come with clean hands. [JCIT Vs Tractors & Farm Equipment Ltd. (ITAT, Chennai) 104 ITD 149 followed). Thus, there exists no sufficient and good reason for the delay of 144 days. Such delay cannot be condoned as condonation in the present case would not be in accordance with the exposition emanating out of the Hon ble apex Court and Hon'ble jurisdictional High Court decisions. It will rather be grave prejudice to the Department. As already expressed by the apex Court in the case cited supra that the State is also a litigant and need not be given a step- motherly treatment. In this context, the decision of Hon'ble Punjab and Haryana High Court in the case of CIT vs. Ram Mohan Kabra (2002) 178 CTR (P& H) 274 is relevant, which reads as under The provisions relating to prescription of limitation in every statute must not be construed so liberally that it would have the effect of taking away the benefit accruing to the other party in a mechanical manner. Where the legislature spells out a period of limitation and provides for power to condone the delay as well. then such delay can be condoned only for sufficient and good reasons supported by cogent and proper evidence. Now, it is a settled principle of law that the provisions relating to specified period of limitation must be applied with their rigour and effective Since the appellant has failed to show any "sufficient cause" u/s 249(3) of the Income Tax Act, 1961 for the appellant's failure to file the appeal within the prescribed period of limitation u/s.249(2) of the Income Tax Act, 1961 r.w.s. 5 of Limitation Act. The abnormal delays cannot be condoned. In a recent judgment in the case of University of Delhi Vs Union of India & Ors. In Civil Appeal No. 9488 of 2019 vide Order dated 17/12/2019, the Hon'ble Supreme Court has refused to condone delay by holding that. "The entire explanation as noted above, depicts the casual approach unmindful of the law of limitation despite being aware of the position of law. That apart when there is such a long delay and there is no proper explanation, laches would also come into play while noticing as to the manner in which a party has proceeded before filing an appeal. In the matter of condonation of delay and laches, the well accepted position is also that the accrued right of the opposite party cannot be lightly dealt with."

10 ITA No. 101/JPR/2024 Sh. Dal Chand Sharma vs.ITO 1, therefore, hold that the appeal has been filed beyond the prescribed time limit of section 249(2) of the Act. hence the Delay cannot be condoned and appeal cannot be admitted for adjudication hence rendered as inadmissible. In case of Medsave Health Insurance Vs ACIT (ITAT Delhi) ITAT Delhi Health Insurance Vs ACIT: ITA No. 1027, 1028 & 1014 to 1016/Del/2022 Date of Judgement/Order: 29/03/2023 affirmed the views of The Hon'ble Madras High Court in the case of Vijayeswari Textiles Ltd vs. CIT (2003) (131 Taxman 833 where in it was held that if the appeal is adjudicated on merits, then, refusing to condone the delay in filing of an appeal is an error. Action of refusing to condone the delay, but, to dispose of the appeal on merit is untenable in law-

“ ………………..15. We also draw strength from the decision of Hon'ble Supreme Court in the case of MajjiSannemma Sanyasirao Vs. Reddy Sridevi and others (Civil Appeal No.7696 of 2021 dt. 16. 12.2021 relied upon by the Id DR, wherein the Hon'ble Supreme Court dismissed the condonation petition. The facts of this case are identical to the facts of the present case". Further the following decision recent decision of the Hon’ble Supreme Court of India in case of Civil Appeal No. ………….. of 2023 Arising out of SLP (c) No. 15793 of 2019 and Civil Appeal No. ………. Of 2023 Arising out of SLP© No. 15848 of 2019 in case of Ajay Dabra vs. Sunder Singh & Anr. 3. In both the above appeals, there is a common challenge against order dated 17.12.2018 passed by the Single Judge of the High Court of Himachal Pradesh in CMP (M) No.75 of 2018 & CMP (M) No.76 of 2018. The impugned order dismisses the delay condonation applications filed under Section 5 of the Limitation Act, 1963, declining to condone a delay of 254 days, because the reasons assigned for the condonation were not sufficient reasons for condonation of the delay. The Appellant herein had earlier filed two suits (bearing nos. 28/2012 & 29/2012), for specific performance which were dismissed by the District Judge, Kullu vide order dated 30.12.2016. 4. According to the Appellant the delay ought to have been condoned and his appeal should have been heard on its merits. 10. This Court, while emphasizing the scope of Section 5 of the Limitation Act, in the case of Mahant Bikram Dass Chela versus Financial Commissioner, Revenue, Chandigarh And Others has held: Punjab,

11 ITA No. 101/JPR/2024 Sh. Dal Chand Sharma vs.ITO "21. Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around Section 5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigant who is not vigilant about his rights must explain every day's delay. These and similar considerations which influence the decision of Section 5 applications are out of place in cases where the appeal itself is preferred within the period of limitation but there is an irregularity in presenting it. Thus, in the instant case, there was no occasion to invoke the provisions of Section 5, Limitation Act, or of Rule 4, Chapter 1 of the High Court Rules. If the Division Bench were aware that Rule 3 of Chapter 2-C is directory, it would have treated the appeal as having been filed within the period of limitation, rendering it inapposite to consider whether the delay caused in filing the appeal could be condoned." This Court in the case of Basawaraj and Another versus Special Land Acquisition Officers while rejecting application for condonation of delay for lack of sufficient cause has concluded in Paragraph 15 as follows: “15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the……………” There exists no sufficient or good reason for condoning inordinate delays of more than 144 days delay in filing appeal. Accordingly, this appeal is dismissed as barred by limitation. Accordingly I decline to condone the delay of 144days, and dismiss this appeal of the appellant as barred by limitation. In view of the above discussion appeal is rendered as inadmissible. Hence stand dismissed.”

12 ITA No. 101/JPR/2024 Sh. Dal Chand Sharma vs.ITO 5. Aggrieved from the order of the ld. CIT (A) the assessee has preferred the present appeal before this tribunal on the grounds as reiterated in para 2 above. To support the grounds so raised the ld. AR appearing on behalf of the assessee has placed reliance on the written submission which is extracted herein below:-

“Facts:- 1. During the year under consideration the assessee was running a car wash workshop. He also sold one room residential set cum commercial shed which was received by him from his late father in the year 1997 for Rs.31 lacs on which long term capital gain of Rs.1,69,683/- was earned. The assessee did not file the return as his income was below maximum amount not chargeable to tax. 2. The AO observed that assessee has sold immovable property for Rs.62 lacs but no return of income was filed. Accordingly he issued notice u/s 148 on 27.03.2022. Thereafter notice u/s 142(1) and show cause notice u/s 144 was issued requiring the assessee to submit the details of sale made during the year but since no reply was furnished the AO completed the assessment u/s 147 by making addition of Rs.62 lacs on account of short term capital gain. 3. Against the said order assessee filed appeal before Ld. CIT(A), NFAC on 05.08.2023. Before Ld. CIT(A) assessee submitted that the notices issued and assessment order passed was not received by him as he did not have access to e- portal as he was not registered in e-portal. The assessee received penalty notice u/s 270A and assessment order by hand through Sh. Ramesh Verma, Inspector of Verification Unit, Jaipur vide letter dt. 18.07.2023 (PB 13) served on 29.07.2023. Thereafter he filed the appeal against the assessment order on 05.08.2023 which is within one month of service of order. Accordingly assessee requested to condone the delay in filing the appeal. 4. The Ld. CIT(A) at Pg 10-11 of the order held that copy of letter served by verification unit is not the service of assessment order. The assessee failed to furnish valid reason for not filing the appeal in time. Condonation of delay is not automatic. Delay of 144 days is inordinate. Personal problem or financial constraints per se would not constitute a reasonable cause. Only marginal delays can be condoned. Thereafter relying on various decisions at Pg 13-21 of the order, he dismissed the appeal as barred by limitation. Submission:- 1. It is submitted that the Ld. CIT(A), NFAC has observed that letter served by the Verification Unit is not the service of assessment order.Ofcourse the subject of

13 ITA No. 101/JPR/2024 Sh. Dal Chand Sharma vs.ITO this letter dt. 18.07.2023 is non-compliance against notices received from NaFAC but in fact with this letter which is received by the assessee on 29.07.2023 through the Inspector of department Sh. Ramesh Verma having Mobile No.95304-00275, assessee received the assessment order. This fact is noted on this letter also. Further the assessee in his application filed for condonation of delay to the CIT(A), NFAC (PB 1-3) has specifically stated this fact which is not controverted by Ld. CIT(A), NFAC by bringing any contrary material on record. Even in Form No.35 in Column No.2(c), the date of service of order is mentioned as 29.07.2023. Thus in fact there is no delay in filing the appeal from the actual date of the receipt of assessment order. 2. The Ld. CIT(A), NFAC has referred to various decisions in his order. The sub & substance of these decisions is that the word sufficient cause should receive a liberal construction so as to advance substantial justice. In the present case there is no dilatory tactics or want of bonafide or deliberate inaction or negligence on part of assessee in not filing the appeal in time with reference to the date of assessment order. Further the property was sold for Rs.31 lacs vide sale deed dt. 23.01.2018 (PB 14-28) but the AO has taken it at Rs.62 lacs and that too as short term capital asset and not long term capital asset. Under these circumstances it was incorrect on part of Ld. CIT(A), NFAC to dismiss the appealon the ground of delay in filing the appeal. Reliance in this connection is placed on the following cases:- S. Nagaraj Vs. State of Karnataka 4 SCC 595 Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to any one. Rule of stare decisions is adhered to for consistency but it is not as inflexible as Administrative Law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher Courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its preparation shall result in miscarriage of justice, then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order Difference lies in the nature of mistake and scope of rectification. Difference lies in the nature of mistaken and scope of rectification, depending on if its is of fact or law. But the root from which the power flows is the anxiety to avoid injustices. It is either statutory or inherent. The latter is available where mistake is of the Court. In Administrative Law, the scope is still wider. Technicalities apart if the Court is satisfied of the injustice then it is its constitutional and legal obligation to set it right by recalling its order. Collector, Land Acquisition Vs. Mst. Katiji& Others 167 ITR 471 (SC) The legislature has conferred the power to condone delay by enacting section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on ‘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 subverses the ends of justice that

14 ITA No. 101/JPR/2024 Sh. Dal Chand Sharma vs.ITO being the life-purpose for 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 other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that: (1) Ordinarily a litigant does not stand to benefit by lodging an appeal late. (2) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. (3) ‘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. (4) When substantial justice and technical considerations 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. (5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk. (6) It must be grasped that judiciary is 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. Making a justice-oriented approach from this perspective there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the ‘State’ which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step motherly treatment when the ‘State’ is the applicant praying for condonation of delay. In fact, experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file pushing and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant non grata status. The Courts, therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression ‘sufficient cause’. So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits". Ram Sumiran& Others Vs. D.D.C. AIR 1985 (SC) 606 Delay of 6 years condoned on the ground of ignorance to meet the end of justice. EshaBhattacharjeeVs. Managing Committee of Raghunathpur, Nafar Academy and others2013 (5) CTC 547 The principals involved and the approach needed while considering the application for condonation of delay are broadly culled out as under:-

15 ITA No. 101/JPR/2024 Sh. Dal Chand Sharma vs.ITO

i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact situation. iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such litigation. xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude."

16 ITA No. 101/JPR/2024 Sh. Dal Chand Sharma vs.ITO VedabaiAlias VaijayanatabaiBaburaoPatilVs.ShantaramBaburaoPatil&Ors. (SC) (2002) 253 ITR 0798 In exercising discretion under s. 5 of the Limitation Act the Courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard. 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. In this case, the approach of the civil Judge is wholly erroneous and his order is unsustainable. It is evident that the discretion under s. 5 of the Limitation Act is exercised by the civil Judge in contravention of the law laid down by this Court, that the expression "sufficient cause" should receive liberal construction. The High Court in exercising its jurisdiction under s. 115 of the CPC, failed to correct the jurisdictional error of the appellate Court. For the aforementioned reasons, the delay of seven days in filing the appeal is condoned and the appeal is restored to the file of the civil Judge and the Civil Judge is directed to decide the appeal on the merits.—State of West Bengal vs. Administrator, Howrah Municipality (1972) 1 SCC 366 and Smt. Sandhya Rani Sarkar vs. Smt. Sudha Rani Debi (1978) 2 SCC 116 applied. CIT Vs. West Bengal Infrastructure Development Finance Corporation Ltd(SC) (2011) 334 ITR 0269 When huge stakes are involved, the High Court should not dispose of the appeals filed by the Department merely on the ground of delay; High Court can consider imposing costs on the Department for the delay and decide the appeals on merits. In view of above, the alleged delay in filing the appeal be condoned and the matter be set aside to the AOto decide the appeal on merit.”

5.1 The ld. AR of the assessee also filed a detailed paper book in support of the contentions raised in this appeal. The index of the document submitted by the ld. AR of the assessee are as under:-

S. No. Particulars Pg. No. Filed before AO/CIT(a) 1. Copy of application dt. 12.12.2023 filed 1-3 CIT(A)

17 ITA No. 101/JPR/2024 Sh. Dal Chand Sharma vs.ITO before National Faceless Appeal Centre, Delhi for condoning the delay in filing the appeal 2. Copy of submission filed before ld. CIT(A) 4-12 CIT(A) 3. Copy of letter dt. 18.07.2023 issued by 13 CIT(A) National Facellss Assessment Centre, Delhi through which assessee was providing the assessment order 4. Copy of sale deed dt. 23.01.2018 14-28 CIT(A) 6. During the course of hearing, the ld. AR for the assessee prayed that the Id. CIT(A) and the AO both have passed the order ex-parte order and the assessee was not provided adequate opportunity of being heard. Therefore, looking, to this aspect of the matter the assessee may be provided one more opportunity to advance his arguments/submissions before the ld. AO on merits as the orders of the both the authority are ex-parte, and the assessee prayed to grant one chance provide the correct details in connection with the merits of her case.

18 ITA No. 101/JPR/2024 Sh. Dal Chand Sharma vs.ITO 8. We have heard both the parties and perused the materials available on record. The bench noted from the order of ld. CIT(A), the appeal of the assessee was dismissed on the ground of barred to limitation not on merits. Considering the overall facts of the case and looking to the facts /grievance of the assessee as raised hereinabove, we condone the delay of 144 days before the Ld CIT (A) and note that one more chance should be given to the assessee to contest the case before the ld. AO and to submit the necessary information to resolve the issue raised in the appeal before us. The ld. AR of the assessee further submitted that the ld. CIT(A) has not decided the appeal of the assessee on merits and the order of the ld. Assessing Officer is also ex-parte. This fact has not been appreciated by the lower authorities and therefore, in the interest of equity and justice this fact needs to be verified by the ld. Assessing Officer. Therefore, considering the arguments advanced before us, we are of the considered view that the matter is required to be remanded back to the file of the ld. Assessing Officer, who will examine the issue afresh after considering the submissions of the assessee. Thus, prayer of the assessee is considered and is provided one more chance to represent the facts before the ld. AO.

19 ITA No. 101/JPR/2024 Sh. Dal Chand Sharma vs.ITO The object of the Bench is to provide justice. Thus, the matter is restored to the file of the ld. AO for afresh adjudication of the case.

In the result, the appeal filed by the assessee is allowed for statistical purposes.

Order pronounced in the open Court on 27/05/2024.

Sd/- Sd/- ¼jkBksM deys'k t;UrHkkbZ ½ ¼MkWa-,l-lhrky{eh½ (RATHOD KAMLESH JAYANTBHAI) (Dr. S. Seethalakshmi) ys[kk lnL; @Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 27/05/2024 *Santosh आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- Sh. Dal Chand Sharma, Alwar. 2. izR;FkhZ@ The Respondent- ITO, Ward-1(2), Alwar. 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत. 6. xkMZ QkbZy@ Guard File { ITA No. 101/JPR/2024} vkns'kkuqlkj@ By order

सहायक पंजीकार@Aेेज. त्महपेजतंत