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Income Tax Appellate Tribunal, JAIPUR BENCHES,”SMC” JAIPUR
Before: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC” 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-@ fu/kZkj.k o"kZ@Assessment Years : 2009-10 Preety Tyagi cuke ITO, Vs. A-55, Dadu Dayal, Mansarovar Ward-7(2), Jaipur. Nagar, New Sanganeri Road, Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AHOPT8398P vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Shrawan Kumar Gupta (Adv.) jktLo dh vksj ls@ Revenue by : Smt. Monisha Choudhary (Addl.CIT) a lquokbZ dh rkjh[k@ Date of Hearing : 08/04/2024 mn?kks"k.kk dh rkjh[k@Date of Pronouncement : 02/05/2024 vkns'k@ ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM This appeal is filed by the assessee aggrieved from the order of the CIT(A), National Faceless Appeal Centre, Delhi dated 27.09.2023 [Here in after referred as “CIT(A)/NFAC”] for the assessment year 2009-10, which in turn arise from the order dated 08.12.2016 passed under section 147/144 of the Income Tax Act, [Here in after referred as “Act” ] by the AO.
Preety Tyagi. vs.ITO 2. The assessee has marched the present appeal on the following grounds:- “1. That the Ld. CIT(A) Faceless grossly erred in rejecting the appeal by stating to be delay in filling on 10.01.2017 in papers form the assessment order against that the appeal was filed was served on 12.12.2016. the appeal was listed at Appeal No. 537/2016-17 year 2009-10 and the first hearing was fixed on 13.07.2018 and i twas again re-fixed on 25.02.2019 and on 14.06.2019. Then a letter was received from Ld. CIT(A)-3, Jaipur that appeal should be e-filed (letter dtd. 21.05.2019 & also stated that next hearing is fixed on 14.06.2019 then the appellant filed e-file of appeal on 01.06.2019.all these issues are on record but the Ld. CIT(A) Faceless have not looked in to that & also not given any show cause notice about dealy in filling & rejected the Appeal which is against the Law. Once the Ld. CIT(A) have taken appeal on record & issued notice then where is the question of delay.
2. That the Ld. A.O. has grossly erred on law and facts in addition of amount Rs. 583320.00 u/s 147/144 of L.T. Act, 1961. And the Ld. CIT(A) erred in not considering the ground of appeal.
3. That the Ld. A.O. has grossly erred on law and fact in not considering the document/information during the course of proceeding. The Ld. CIT(A) erred in not considering the ground of appeal.
4. That the order u/s 147/144 of L.T. Act, 1961 for addition is completely perverse and baseless and is liable to quashed. That neither the Ld. A.O. not Ld. CIT(A) considered this ground of appeal.
5. That Appellant, craves to leave, add, alter the grounds of Appeal.”
The fact as culled out from the record is that the assessee filed his Income Tax Return in ITR 1 on 31.07.2009 declaring total income at Rs. 1,99,060/-. A notice u/s 148 of the Act was issued to the assessee on the basis of an unknown confession of M.M. Gupta relating to receiving of on money from the assessee relating
Preety Tyagi. vs.ITO to purchase of plots at Revenue residency, Jaipur and without giving any heed to assessee submission the ld. AO has added Rs. 5,83,320/- to his income by pre assumed formula of Rs. 2,000/- on money multiplied by 291.66 Sq. Yard.
4. Aggrieved, from the said order of assessment the assessee has filed an appeal before the ld. CIT(A). The ld. CIT(A) after hearing the contention of the assessee dismissed the appeal of the assessee by giving following findings on the issue:-
“19.0 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 20.0 The law of limitation is found upon the maxims "Interest Reipublicae Ut Sit Finis Litium 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 Imitation in India identifies the need for limiting litigation by striking a balance between the interests of the state and the litigant 21.0 The Single Judge bench of the Hon'ble Madras HC, while exercising writ jurisdiction in Kathiravan Pipes Pvt. Ltd., v. CESTAT, 2007 [5] STR 9 (Mad.) has observed that the period of limitation prescribed is not for destruction of a statutory right but only to give finality without protracting the matter endlessly.
Preety Tyagi. vs.ITO 22.0 In the present case, the appellant has not adduced any reasonable cause which prevented it from filing the appeal within the 30 days' time limit and even thereafter for more than 795 days. Unless and until it is demonstrated that there was sufficient cause that prevented the appellant from exercising its legal remedy of filing appeal within that prescribed period of 30 days, the delay thereafter cannot be condoned without there being compelling grounds as advocated by the Hon'ble Courts. 23.0 From the facts of the case, it is clear that the statutory right to appeal which was vested with the appellant was not exercised within the stipulated time u/s.249(2). Thus, this clearly is a case of laches and is directly the result of deliberate inaction on the part of the appellant. 24.0 This is not a case of change in law which is beneficial to the appellant and hence the delay in seeking such a remedy may be condoned in the furtherance of substantial justice. Therefore, there is no denial or destruction of a statutory right in this case, by adhering to the prescribed period of limitation as otherwise it will only lead to protract the matter endlessly and will undoubtedly render the legislative scheme and intention behind the concerned provision otiose as held by the Hon'ble Supreme Court in the case of Assistant Commissioner (CT) LTU, Kakinada &Ors. v. M/s Glaxo Smith Kline Consumer Health Care Limited 2020[36] G.S.T.L. 305. 25.0 For these reasons, the delay of 795 days in filing of appeal in this case is not condoned as no "sufficient cause has been shown 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 and hence the appeal sought to be instituted belatedly is hereby rejected. 26.0 In the result, as delay in filing of appeal is not condoned, the appeal is not admitted and is dismissed accordingly.”
5. Aggrieved from the order of the ld. CIT(A) the assessee has preferred this appeal before this tribunal on the grounds as reiterated in para 2 above. To support the various grounds so Preety Tyagi. vs.ITO raised by the ld. AR of the assessee and has relied upon the following evidences in support of the contentions so raised:-
S. No. Particulars Page No. 1. Copy of form 35 paper filling filed on dt. 10.01.2017 1-3 2. Copy of hearing notice from CIT(A)-3 4-6 3. Copy of letter dt. 21/22.05.2019 from CIT(A)-3 for filling 7-8 the appeal online and reply filed to the ld. CIT(A) 4. Copy of online appeal filing from 35 9-11 5. Copy of WS to CIT(A) NFAC dt. 26.09.2023. 12-17 6. Copy of ITAt order in the case of Rajesh Daga in 572/Jodh/2018 dt. 20.09.2023, under same facts 7. Copy of WS to CIT(A) dt. 12.02.2018 25-30
6. During hearing, the ld. AR of the assessee submitted before us that the assessee has filed the appeal physically in time on 10.01.2017 and even the subsequent notices were also issued to the assessee. The assessee filed the appeal in online mode which is delayed by 795 and the ld. CIT(A) has not condoned the delay without appreciating the fact that the assessee has filed the appeal in time in physical mode. Even the first page shows that the appeal originated from the online record the same is not condoned and the appeal of the assessee was dismissed.
Preety Tyagi. vs.ITO 7. Per contra ld. DR representing the revenue has relied upon the finding of the lower authority but at the same time did not controvert the fact that the assessee has filed the appeal in physical form and the same was within the time permitted.
We have heard the rival contentions and perused the material placed on record. The grievance of the assessee in this appeal that though the appeal of the assessee filed on 10.01.2017 which was in physical form with the office of the ld. CIT(A)-3, Jaipur and the same was in time. Subsequently the assessee was directed to file the appeal in online module but the same was delayed by 795 days. The said delay in filling the appeal in online module was not condoned by the ld. CIT(A) and there is even no discussion in the order as to the fact that the assessee has filed the appeal in physical form which was in time. Thus, since the law was evolving and the assessee appeal in fact was filed in time in physical form. The bench noted that the condonation petition is a remedy and not a right of the assessee but considering the fact that the vital facts of the case is not considered on its merits that the physical appeal was filed in time. If the appeal of the assessee is not admitted that Preety Tyagi. vs.ITO the assessee has to suffer irreparable loss for recovery of demand. The Hon’ble Supreme court has dealt the principle relating to consideration of “sufficient cause” for condonation of delay and the factors that are required to be kept in mind in case of Collector, Land Acquisition, Anantnag & Anr.vs. Katiji & Ors., 1987(2) SCC 107 wherein it is held as that “3. The legislature has conferred the power to condone delay by enacting Section 5 [ Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.] 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 subserves the ends of justice — that 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 Preety Tyagi. vs.ITO 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.
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 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 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.
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.
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
Preety Tyagi. vs.ITO 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 the 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 that sufficient facts of the case has remained to be placed before the authority concerned and if the delay is not condone considering the Preety Tyagi. vs.ITO aspect of the matter the assessee has to suffer a lot. Based on that guideline of the apex court we note that the assessee has filed the appeal in time and the online appeal was delayed and since the law evolving there is sufficient cause for the assessee to file the appeal in online module. Keeping in mind the reasons and the decision of the apex court as referred we condone the delay 795 days of filling the appeal online. The bench also noted that the appeal of the assessee was not admitted by the ld. CIT(A) and the assessment order was ex-parte, looking to that aspect of the matter we feel that the assessee may be provided one more opportunity to advance her arguments/submissions before the ld. AO on merits and a fresh in the interest of equity and natural justice. At the same time ld. Jurisdictional Assessing Officer is directed to examine the contention of the assessee and pass suitable order a fresh after giving sufficient opportunity of being heard to the assessee. Based on these set of facts we hold to remand the matter back the matter to the file of the ld. AO who will decide the issue based on evidence and submission of the assessee. However, the assessee will not seek any adjournment on frivolous ground and remain cooperative while proceedings before the ld. AO.
Preety Tyagi. vs.ITO Before parting, we may make it clear that our decision to 9. restore the matter back to the file of the ld. AO shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by the ld. AO independently in accordance with law.
In the result, the appeal filed by the assessee is allowed for statistical purposes.
Order pronounced in the open Court on 02/05/2024.