UTTAM VALUE STEELS LTD,MUMBAI vs. ASST CIT CEN CIR 41, MUMBAI

आदेश / O R D E R

Per Joginder Singh (Judicial Member)

All these three appeals are by the assessee, aggrieved by the impugned orders all dated 25/02/2016, of the Ld. First Appellate Authority, Mumbai, for the Assessment years 2007-08, 2008-09 and 2010-11. In these appeals, since, identical issue of condonation of delay is involved, therefore, these can be disposed of by a common and consolidated order for the sake of brevity.

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Sumit Agarwal, counsel of the assessee and also employee of the assessee company who was handling taxation matters remained unavailable due to health problems. The assessee also produced medical certificate dated 08/05/2014, 23/06/2014 and also a interim medical bill dated 19/06/2014 from Breach Candy Hospital. Our attention was invited to letter dated 26/07/2014 (received in the office of the First Appellate Authority on 28/07/2014), addressed to the Ld. Commissioner of Income Tax (Appeal) mentioning the necessary factual matrix. It was explained that the reasons of delay of filing the appeal before the Ld. Commissioner of Income Tax (Appeal) were bonafide reasons and also the same were beyond the control of the assessee. It was pleaded that the order/ex-parte order, passed by the Ld. Commissioner of Income Tax (Appeal) has caused injustice to the assessee, therefore, delay may be condoned and in view of the decision from Hon’ble Gujarat High Court (Supra) the case may be decided in favour of the assessee. For condonation of delay various case laws were relied upon, which will be discussed in later paras of this order. Our attention was invited to various pages of the paper book.

2.1. On the other hand, the ld. DR, Shri A.G. Bhatkar, contended that there is no bonafide reason for the delay and the assessee at the earlier stage took a conscious decision to not to file the appeal and the later stage, in view of the decision from Hon’ble Gujarat High Court, decided to

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file an appeal. It was prayed that delay may not be condoned and, if condoned, the Ld. Commissioner of Income Tax (Appeal) may be provided opportunity to go into the merits of the case.

2.2. We have considered the rival submissions and perused the material available on record. In view of the assertions made by the ld. respective counsel, 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 appeals are 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 appeals. In matters concerning the filing of appeals, 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.

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

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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” employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner

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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 v/s ITO (ITA Saidatta Coop-. Credit Society Ltd. 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.

Having made the aforesaid observation and various decisions discussed hereinabove, including from Hon’ble

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Apex Court, the circumstances narrated by the assessee, 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 appeals 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 appeals of the assessee are allowed for statistical purposes only for fresh adjudication. Finally, the appeals of the assessee are allowed for statistical purposes only.

This order was pronounced in the open court in the presence of Ld. representatives from both sides at the conclusion of the hearing on 15/06/2016.

Sd/- Sd/- (Ashwani Taneja) (Joginder Singh) लेखा सद�य / ACCOUNTANT MEMBER �या�यक सद�य / JUDICIAL MEMBER

मुंबई Mumbai; �दनांक Dated : 15/06/2016

f{x~{tÜ? P.S/.�न.स. आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent. 3. आयकर आयु�त(अपील) / The CIT, Mumbai. 4. आयकर आयु�त / CIT(A)- , Mumbai 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, मुंबई / DR, ITAT, Mumbai

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