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Income Tax Appellate Tribunal, KOLKATA ‘A’ BENCH, KOLKATA
Before: SRI RAJPAL YADAV & DR. MANISH BORAD
order : February 9th, 2024 ORDER Per Rajpal Yadav, Vice-President (KZ): The present appeal is directed at the instance of the assessee against the order of the Commissioner of Income Tax (Appeals)-NFAC, Delhi [in short ld. 'CIT(A)'] dated 23.08.2022 passed for AY 2016-17.
The Registry has pointed out that appeal of the assessee is time barred by 187 days. In order to explain the delay, assessee has filed an affidavit of Shilpa Modi, D/o Sh. Narayan Prasad Lohia. In this affidavit, deponent has contended that impugned order was not communicated to her and she could I.T.A. No.: 421/KOL/2023 Assessment Year: 2016-17 Srei Multiple Asset Investment Trust. only get the information about it when She verified the tax portal to prepare MIS on status of pending appeals.
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 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 Hon'ble High Court as well as before the Hon'ble Supreme Court, then, Hon'ble 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.
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 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 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.
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.
I.T.A. No.: 421/KOL/2023 Assessment Year: 2016-17 Srei Multiple Asset Investment Trust. 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. 3.1. Similarly, we would like to make reference to authoritative pronouncement of Hon'ble 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 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”.
I.T.A. No.: 421/KOL/2023 Assessment Year: 2016-17 Srei Multiple Asset Investment Trust. 3.2. 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 Hon'ble 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 are of the view that assessee will not get anything by making the appeal time barred. Therefore, it is to be construed that no gain will be to the assessee if delaying practises be adopted for litigating with the Department. Considering the bona fide mistake of the assessee, we condone the delay and proceed to decide the appeal on merit.
5. The ld. Counsel for the assessee while taking us through the details submitted that assessee has preferred two appeals before ld. CIT(A) i.e. one against a penalty order imposed u/s 271B of the Income Tax Act, 1961 (in short the 'Act') and the other one against the assessment order passed u/s 143(3) of the Act. The assessee availed the benefit of Vivad Se Vishwas Scheme (VSV) qua penalty imposed u/s 271B of the Act. The ld. CIT(A) though mentioned the appeal number of the quantum appeal but construed it as of he is disposing off the penalty appeal and accordingly, dismissed the appeal on the ground that assessee has availed the VSV benefit.
With the assistance of ld. representatives, we have gone through the record carefully. On page no. 10 of the paperbook ld. Counsel for the assessee has placed on record a copy of the notice issued u/s 250 of the Act by the ld. first appellate authority. In this notice, appeal number mentioned by the ld. CIT(A) is ‘8/10207/2018-19’. If we compare this appeal number with the appeal number mentioned in the impugned order then both are same. It appears that ld. CIT(A) has inadvertently dismissed the appeal of the assessee filed against the assessment order framed u/s 143(3) of the Act. After going through both the Form no. 35 we are of the view that appeal against the assessment order deserves to be decided on merit. Accordingly, we set aside the impugned order and restore all these issues to the file of first appellate authority for deciding it on merit.