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Income Tax Appellate Tribunal, ‘C’ BENCH, KOLKATA
Before: Shri Rajpal Yadav, Vice-(KZ) & Shri Rajesh Kumar
Per Rajpal Yadav, Vice-President (KZ):- The present appeal is directed at the instance of assessee against the order of ld. Commissioner of Income Tax (Appeals),
(A.Y. 2016-2017) B.P. Poddar Hospital & Medical Research Ltd. National Faceless Appeal Centre (NFAC), Delhi dated 17th August, 2023 passed for assessment year 2016-17.
2. The Registry has pointed out that the appeal is time barred by 172 days. In order to explain the delay, the assessee has filed an application, wherein it has pleaded that the order of ld. CIT(Appeals) was not served upon it, rather it was sent on e-Portal, but it was received in the SPAM Folder of the e-mail. Under these circumstances, the assessee could not check the impugned order of the ld. CIT(Appeals). Therefore, the ld. Counsel for the assessee prayed that the delay be condoned and the appeal be decided on merit.
On the other hand, ld. D.R. contended that the assessee should be more vigilant in examining the e-Portal for pursuing the income tax proceedings. He also submitted that the assessee did not appear before the ld. CIT(Appeals) and the order is also ex- parte. It suggests that the assessee is negligent in prosecuting the income tax proceedings.
We have duly considered the rival contentions and gone through the record carefully. Sub-section 5 of Section 253 contemplates that the Tribunal may admit an appeal or permit filing of memorandum of cross- objections after expiry of relevant period, if it is satisfied that there was a sufficient cause for not presenting it within that period. This expression sufficient cause employed in the section has also been used identically in sub-section 3 of section (A.Y. 2016-2017) B.P. Poddar Hospital & Medical Research Ltd. 249 of Income Tax Act, which provides powers to the ld. Commissioner to condone the delay in filing the appeal before the Commissioner. Similarly, it has been used in section 5 of Indian Limitation Act, 1963. Whenever interpretation and construction of this expression has fallen for consideration before Honble High Court as well as before the Honble Supreme Court, then, Honble Court were unanimous in their conclusion that this expression is to be used liberally. We may make reference to the following observations of the Hon’ble Supreme court from the decision in the case of Collector Land Acquisition Vs. Mst. Katiji & Others, 1987 AIR 1353: 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 made. Why not every hour's delay, every second's delay? The doctrine must be (A.Y. 2016-2017) B.P. Poddar Hospital & Medical Research Ltd. 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.
Similarly, we would like to make reference to authoritative pronouncement of Honble Supreme Court in the case of N. Balakrisknan Vs. M. Krishnamurtky (supra). It reads as under: “Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not 4
(A.Y. 2016-2017) B.P. Poddar Hospital & Medical Research Ltd. resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. A court knows that refusal to condone delay would result 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 vide Shakuntala Devi lain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss”. 5
(A.Y. 2016-2017) B.P. Poddar Hospital & Medical Research Ltd.
We do not deem it necessary to re-cite or recapitulate the proposition laid down in other decisions. It is suffice to say that the Honble Courts are unanimous in their approach to propound that whenever the reasons assigned by an applicant for explaining the condonation of delay, then such reasons are to be construed with a justice oriented approach.
In the light of above, we have examined the explanation of the assessee. A perusal of the explanation reveals that basically the assessee received the order of the ld. CIT(Appeals) in the SPAM Folder of the e-mail. Therefore, it could not locate it at an early date. It is pertinent to observe that the assessee will not gain anything by making the appeal time barred. It has not adopted a delaying tactics to litigate with the Department. Therefore, we condone the delay in filing the appeal and proceed to decide it on merit.
With the assistance of ld. Representatives, we have gone through the record carefully. It emerges out that the ld. CIT(Appeals) has not adjudicated the appeal on merit, rather dismissed it for want of prosecution. The finding recorded by the ld. CIT(Appeals) after reproduction of various jurisprudence on the issues whether an appellate proceeding can be culminated to an end without deciding
(A.Y. 2016-2017) B.P. Poddar Hospital & Medical Research Ltd. the issues on merit if the assessee fails to give arguments on merit. The finding reads as under:- “4.6. In view of the facts of the appellant under consideration and various judicious decisions cited above, I am of the considered opinion that the appellant is not willing to pursue the appeal and reserve his rights only mere filing of the memo of the appeal. Since the appellant has chosen not to attend the hearing and does not want to pursue any seriousness, I am left with no option but to decide the appeal on the basis of material available on records. Therefore, this appeal is decided on merits”.
Sub-section (6) of section 250 contemplates that ld. CIT would formulate the point in dispute or in other words would determine the question in dispute and thereafter record reasons in support of her conclusion on those points, but in the present case, the ld. 1st Appellate Authority has failed to adhere the mandatory procedure contemplated in sub-clause (6) of section 250 of the Income Tax Act. The ld. CIT(Appeals) has not determined the point in dispute. It has not called for the record. It is also pertinent to observe that during the course of assessment proceedings, one of the issues relates to determination of deemed sale consideration equivalent to the amount on which stamp duty was paid and the ld. Assessing Officer has made a reference to the DVO under section 50C sub-section 2 for determination of fair market value. This report could not reach to the ld. Assessing Officer before finalization of the assessment order. It was awaited. Had the ld. CIT(Appeals) considered the complete assessment record, probably this report would be 7
(A.Y. 2016-2017) B.P. Poddar Hospital & Medical Research Ltd. available and that issue could be decided on merit, but ld. CIT(Appeals) failed to consider all these aspects. Therefore, we set aside the impugned order of the ld. CIT(Appeals) and restore all these issues to the file of ld. CIT(Appeals) for fresh adjudication. It is pertinent to observe that ld. CIT(Appeals) will call for the complete assessment record and also obtain the DVO’s report already called for by the ld. Assessing Officer for deciding the issue regarding true determination of the capital gain, if any, assessable in the hands of the assessee. Our observations will not impair or injure the case of ld. Assessing Officer and will not cause any prejudice to the defence/explanation of the assessee. The assessee will be at liberty to submit all evidences in support of its explanation before the ld. 1st Appellate Authority.
In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open Court on 02/07/2024.