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Income Tax Appellate Tribunal, “A” BENCH, KOLKATA
Before: SHRI RAJPAL YADAV, HON’BLE & DR. MANISH BORAD, HON’BLE
O R D E R
PER DR. MANISH BORAD, ACCOUNTANT MEMBER:
The instant appeal is directed at the instance of the assessee against the order of the National Faceless Appeal Centre, Delhi, [hereinafter the “ld. CIT(A)”] dt. 28/07/2021, passed u/s 250 of the Income Tax Act, 1961 (“the Act”) for the Assessment Year 2014-15.
The Registry has pointed out that there is a delay of 761 days in filing the present appeal by the assessee. The assessee has stated that the reason for delay was on account of non-filing of the appeal by the Advocate, Mr. Prabir Mukhopadhyay, who expired in August, 2022 and thereafter the assessee approached the authorised counsel for filing the /Kol/2023 Assessment Year: 2014-15 Gielle Investments Ltd. 2 appeal. The complete facts giving rise to the delay in the filing of the present appeal has been mentioned in affidavit dt. 20/12/2023 and the same reads as under:- “I Kishan Lai Sanganeria, son of Late Mahabir Prasad Sanganeria, aged 72 years, by religion Hindu, residing at 10, Shankar Haider Bye Lane, Hatkhola, Kolkata-700 005, do hereby solemnly affirm and state as follows-
That I am one of the directors of Gielle Investments Ltd. As such, I am competent to swear this affidavit on behalf of the said company.
2. That an appeal was filed on 19.01.2017 on behalf of the assessee company before the CIT(A), NFAC against the assessment order dated 29.12.2016 for A.Y. 2014-2015. 3. That the said appeal was dismissed by the CIT(A)-NFAC by passing an ex- parte order dated 28.07.2021 on the ground of absence of response from the appellant. 4. That the matter was fixed before CIT(A) on 13.01.2021 and 16.07.2021. However proper compliance could not be made since the office of the assessee was not functioning properly due to covid pandemic. 5. That in the month of September, 2021 when the situation was getting normalized and the office of the assessee started functioning, the accountant of the assessee found the appellate order in old mails. 6. That then I approached Advocate Pradip Mukhopadhyay practising dt Sarat Chatterjee Road, Kolkata - 700089 for the purpose of filing appeal before ITAT and handed over all the relevant papers to him. 7. After preparation of the appeal by the said Advocate, I signed the appeal papers remained under the bonafide belief that appeal has been filed by the« said Ld. Counsel and waited for the notice of hearing from the Hon'ble ITAT. 8. When no notice of hearing was forthcoming, I tried to contact Advocate Pradip Mukhopadhyay on or around the 2nd week of October 2023, it transpired that he had already expired in August, 2022. 9. That then I contacted Advocate Sri Siddharth Agarwal on 16.10.2023 for seeking guidance in the matter. The said counsel approached the office of ITAT to make enquiry about the status of appeal. On enquiry, it transpired that no appeal had been filed in ITAT against the aforesaid order passed by Ld. CIT(A).
Assessment Year: 2014-15 Gielle Investments Ltd. 3 10. That then I requested Advocate Sri Siddharth Agarwal to take necessary steps in the matter and handed over all the relevant papers to him.
That the appeal was then prepared by him and the same was filed in the office of ITAT on 26.10.2023 after a delay of 762 days.
That in view of the factors mentioned above, your petitioner most humbly submits that there is a reasonable cause for 762 days' delay in filing the appeal which may please be condoned and because of the above genuine reasons, proper compliance could not be made before the Ld. CIT(A).
That I give an undertaking that I shall make due compliance in case the abovementioned case is sent back to the file of the lower authorities.
That the facts stated in para 1 to 12 are true to the best of my knowledge and belief and paragraph 13 is an undertaking given by me.”
On the other hand, the ld. D/R opposed the condonation of delay. We have heard both the sides and also considered the facts mentioned in the affidavit. We find that since the assessee is dependent on the tax advisors to file the appeal, he approached the Advocate, Pradip Mukhopadhyay at Kolkata for filing the appeal and handed over the papers and also sent the remaining papers and was under the bonafide belief that the appeal has been filed. At a later stage when no notice for hearing was received and assessee approach his advocate on or around 2nd week of October, 2023, it transpired that the advocate had already expired in August, 2022. We are convinced that the assessee was prevented by sufficient cause from filing the appeal on time. Under these circumstances we deem it fit to condone the delay and admit the appeal for hearing. While doing so, we draw strength from the following judgments: (a) In the case of Collector, Land Acquisition v. Mst. Kati Ji 1987 (13) ALR 306, the Hon’ble Apex Court held as follows:
Assessment Year: 2014-15 Gielle Investments Ltd. 4 "The Legislature has conferred the .power to condone delay by enacting section 5 of the 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 sub serves 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 other Courts in the hierarchy. Any such a liberal approach is adopted on principle as it is realized that:
1. 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 merit 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, commonsense and pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, the 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 grapped that the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
(b) In N. Balakrishnan v. M. Krishnamurthy [1998] 7 SCC 123 the Hon’ble Apex Court explained the scope of limitation and condonation of delay, observing as under: "The primary junction of a Court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. 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 for the redress of the legal injury so suffered. The law of limitation is thus founded on public policy."
Assessment Year: 2014-15 Gielle Investments Ltd. 5 (c) In Smt. Prabha vs. Ram Prakash Kalra 1987 Suppl. SCC 339, the Supreme Court took the view that the Court should not adopt an injustice-oriented approach in rejecting the application for condonation of delay.
In Vedabai vs. Shantaram Baburao Patil 2001 (44) ALR 577, the (d) Hon’ble Apex Court made a distinction in delay and inordinate delay observing as under: "In exercising discretion under section 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 otherwise will be a relevant factor so the case calls for a more cautious approach..." (e) In New India Insurance Co. Ltd. v. Smt. Shanti Misra AIR 1976 SC 237, Hon'ble Supreme Court held that discretion given by section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The expression 'sufficient cause' should receive a liberal construction.
(f) In Briji Inder Singh v. Kanshi Ram AIR 1917 PC 156, it was observed that true guide for a Court to exercise the discretion under section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal.
(g) In Shakuntala Devi Jain v. Kuntal Kumari AIR 1969 SC 575, the Hon'ble Supreme Court held that unless want of bona fides of such in action or negligence as would deprive a party of the protection of section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.
Assessment Year: 2014-15 Gielle Investments Ltd. 6 (h) In O.P. Kathpatia v. Lakhmir Singh AIR 1984 SC 1744, the Hon'ble Supreme Court held that if the refusal to condone the delay results in grave miscarriage of justice; it would be a ground to condone the delay. (i) In State of Haryana v. Chandramani AIR 1996 SC 1623, Hon'ble Supreme Court considered large number of its earlier judgments including Binod Bihari Singh v. Union of India [1993] 1 SCC 572, Shakambari & Co. v. Union of India [1993] Suppl. (1) SCC 487, Warlu v. Gangotribai [1995] Suppl (1) SCC 37, Ramlal, Motilal and Chhotelal v. Rewa Coalfields Ltd. AIR 1962 SC 361, Concord of India Insurance Co. Ltd, v. Nirmala Devi AIR 1979 SC 1666, Lala Mata Din v. A. Narayanan AIR 1970 SC 1953, and held that expression 'each day's delay must be explained', does not mean that a pedantic approach should be made and it must be applied in a rational commonsense pragmatic manner.
In view of the above discussion, the delay is condoned and the appeal is admitted for hearing on merits.
At the outset, the ld. Counsel for the assessee submitted that the ld. CIT(A) did not give fair opportunity of hearing and assessee could not file its submissions in support of its grounds. He also submitted that most of the dates of hearing were fixed during the Covid Pandemic period. He also submitted that the impugned order is an ex-parte order and has also been passed during the Covid period on 28/07/2021. Thus, prayer was made to restore the appeal of the assessee to the file of the ld. Assessment Year: 2014-15 Gielle Investments Ltd. 7 CIT(A). The ld. D/R though not leaving his grounds, did not oppose to this contention of the ld. Counsel for the assessee.
Sub-section (6) of section 250 of the Income Tax Act, 1961 mandates the ld. CIT(A) to state the point in dispute, and thereafter record reasons in support of his conclusion. A perusal of the order of the ld. CIT(A) would indicate that it is not in consonance with mandate given in the Act. The ld. CIT(A) has not made any analysis of facts available on record, including the assessment records and has passed an ex-parte order. Therefore, the impugned order is not sustainable; it deserves to be set aside. Accordingly, in the interest of justice, we deem it fit to restore these appeals to the file of the ld. CIT(A) for afresh adjudication in accordance with law after giving sufficient opportunity to the assessee of being heard. Needless to say, the assessee shall co- operate till the disposal of the appeal.