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Income Tax Appellate Tribunal, MUMBAI BENCHES “B”, MUMBAI
Before: Shri Joginder Singh, & Shri Ramit Kochar
आदेश / O R D E R Per Joginder Singh (Judicial Member) The assessee is aggrieved by the impugned order dated 11/02/2013 of the Ld. First Appellate Authority, Thane.
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The only ground raised by the assessee pertains to condonation of delay and not giving proper opportunity of being heard to the assessee. 2.1. The assessee is filed application for condonation of delay on the reasons stated in the application. The ld. DR Shri Neil Philiph contended that delay has to be explained by the assessee. 2.2 We have considered the submissions of ld. DR and perused the material available on record. In view of the assertions made in the application, 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 appeal is 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 appeal. In matters concerning the filing of appeal, 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.
3 Naleshwar Builder & Developers 2.3. 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 4 Naleshwar Builder & Developers 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.”
2.4. 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. 2.5. 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. 2.6 It is also noted that the assessment was framed under section 144 of the Act by the Assessing Officer. Admittedly, the assessee did not appear before the Ld. Commissioner of Income Tax (Appeal), in the light of the observation and 5 Naleshwar Builder & Developers various decisions discussed hereinabove, including from Hon‟ble Apex Court, the circumstances narrated in the application, wherein, he has stated the reasons which caused the delay, therefore, the delay is condoned. The Ld. Commissioner of Income Tax (Appeal) is directed to adjudicate the appeal of the assessee on merit, afresh, in accordance with law. The assessee be given opportunity of being heard with further liberty to furnish evidence, if any, in support of its claim. The assessee is also directed to remain vigilant in future. Thus, the appeal of the assessee is allowed for statistical purpose only for fresh adjudication. This Order was pronounced in the open court in the presence of ld. DR at the conclusion of the hearing on 01/11/2016.