M/S. MANALI PROPERTIES & FINANCE PVT. LTD., ,KOLKATA vs. DCIT, CIRCLE - 7(1), KOLKATA, KOLKATA

Brief facts of the case of the assessee are that the assessee is engaged in the business of trading, dealing, investment in shares and securities. The case of the assessee has been selected for scrutiny by the AO and the AO has added the sum of Rs. 6,14,83,565/- to the income of the assessee as income from other sources.

The said order has been challenged by the assessee before the Ld. CIT(A) wherein the appeal of the assessee has been dismissed as the appeal was filed by the assessee in the delay of 561 days and 266 days and as per the Ld. CIT(A), the assessee has failed to prove the sufficient cause for delay in filing the both appeal.

The Ld. Counsel appeared on behalf of the assessee instead of arguing in the merit of the case has only submitted that the assessee should have been given an opportunity to place his case before the Ld. CIT(A) as the delay was not intentional rather bonafide. The Ld. Counsel filed an Affidavit to establish the reasonable cause for delay.

Contrary to that the Ld. D.R supports the impugned order.

On perusal of the order of Ld. CIT(A), it appears to us that the appeal of the assessee have been dismissed on account delay as the Ld. CIT(A), did not find there sufficient and reasonable cause. We have perused the Affidavit filed by the assessee before us which is as follows:

In this context, we have perused the several decisions of the Hon'ble Apex Court and find that in Shakuntala Devi Jain v. Kuntal Kumari [AIR 1969 SC 575], this Court reiterated the following classic statement from Krishna vs. Chathappan [1890 ILR 13 Mad 269]: "... Section 5 gives the courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words `sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant." 7.1. In N.Balakrishnan v. M.Krishnamurthy [1998 (7) SCC 123], this Court held: "It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court. The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice...... Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice.”

Keeping in view, the Affidavit filed by the assessee as well as aforesaid judgment, we are inclined to give the assessee an opportunity to place his case before the Ld. CIT(A). Accordingly, the case of the assessee is restored in the file of Ld. CIT(A). The order of Ld. CIT(A) is hereby set aside and delay is hereby condoned. The Ld. CIT(A) is directed to hear the case of the assessee and pass an order afresh.