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Income Tax Appellate Tribunal, JAIPUR BENCHES,”B” JAIPUR
Before: SHRI SANDEEP GOSAIN, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;djvihy la-@ITA No. 134/JP/2023
ORDER PER: SANDEEP GOSAIN, JM This appeal filed by the assessee is directed against order of the ld. CIT(A) dated 13-02-2023, National Faceless Appeal Centre, Delhi [ hereinafter referred to as (NFAC) ] for the assessment year 2014-15 wherein the assessee has raised the following grounds of appeal. ‘’1. That the ld. CIT(A) erred in dismissing the appeal on ground that appeal barred by limitation while the appeal preferred in paper form before then CIT(A)-2, Jaipur with in
2. SMT. RASHMI JAIN VS ITO,WARD 6(2), JAIPUR prescribed limitation u/s 249(2) of the I.T. Act i.e. 30 days from the service of the impugned assessment order (ii) that the ld. CIT(A) erred in reproducing the reason for delay by the appellant like ‘’Ipse Dixit’’ (iii) that the ld. CIT(A) appears erred in applying judicial precedent for dismissing the appeal while the precedents are supporting to the appellant.
Addition u/s 41(1)of I.T. Act (a) That the ld. CIT(A) erred in dismissing of the appeal without considering facts, evidence and the written arguments o record (b) that the ld. CIT(A) erred in confirming the addition of deemed income of trading liabilities u/s 41(1) of the I.T. Act while Respondent himself accepted after due examination in remand report that liabilities has been paid in just coming years (c) That the ld . Respondent erred in passing the impugned assessment order without considering the nature of export business activity and erred in interpreting the provisions Sec. 41(1) of I.T. Act 2.1 Apropos above grounds of appeal
of the assessee, the facts as emerges from the order of the ld. CIT(A) are as under:-
5. Decision:- (i) I have considered the submission of the assesse and given a careful thought. Before proceeding on to adjudicate the grounds of appeal raised by the appellant, it is pertinent to mention here that the impugned appeal has been filed with a delay of nearly 798 days. The appellant while filing the Form 3 SMT. RASHMI JAIN VS ITO,WARD 6(2), JAIPUR No. 35 in the relevant col. No. 2c has mentioned the date of service of the order at 06.12.2016, which is as under: S.N. Intimation Date of Due date Actual date Delay in u/s service of for filing of filing filing of order appeal (30 appeal appeal ( in days) days) 1 144 06-12-2016 05-01-2017 09-03-2019 798 Thus, it is evident that the appellant has defaulted to file the impugned appeal within the prescribed due date thereby causing a delay of 798 days. As such, the appellant during the course of appellate proceedings was required to put its say in this regard and file requisite documents. The reason for the delay as stated by the appellant is contained in Form 35 and is reproduced hereunder:- "Due to technical problem in net services the appeal prepared offline without any negligence or mala fide intention therefore delay may be condoned."
(ii) As is evident from prevailing para no. 6 (1), there is substantial delay in filing the appeal. The content mentioned in Form No.35 (Col.No. 15) as filed speaks out the general routine reason for such delay without pointing out any specific and cogent reasons. It is an admissible fact that the order issued by the AO was duly served on the assessee. Mere fact that the appellant had not taken notice of the said order cannot be treated as a valid reason for consequent delay in filing the appeal. The appellant always had access to its online accounts as well as the email ID on which the order are served electronically or physically. Thus the reason furnished by the appellant in support of its request for condonation of delay cannot be treated as a valid reason for delay in filing the appeal. As such, the substantial delay on the part of the appellant in filing the appeal remains unsubstantiated in absence of any supporting evidentiary material which could even slightly prove 4 SMT. RASHMI JAIN VS ITO,WARD 6(2), JAIPUR that there was any reasonable & sufficient cause for such delay. It is undeniable that the appellant, being involved in business, was duly guided by tax experts and hence, if at all it wanted to, it could have filed the said appeal within the prescribed period. Thus, there appears to be a lack of want on the part of the appellant which could in no way form reasonable & sufficient cause for delay in filing the appeal. Moreover, the subsequent submission filed by the appellant, in support of its contention that the said delay may be condoned, can also in no way be beneficial to it since the same completely ignores the fact that the object of the Law of Limitation is to bring certainty and finality to litigation. This is based on the Maxim interest reipublicae sit finis litium i.e. for the general benefit of the community at large, because the object is every legal remedy must be alive for a legislatively fixed period of time. The object is to get on with life, if you have failed to file an appeal within the period provided by statue. It is for the general benefit of the entire community so as to ensure that stale and old matters are not agitated and the party who is aggrieved by an order can expeditiously move higher forum to challenge the same, if he is aggrieved by it. As observed by the Hon'ble Apex Court in many cases, the law assists those who are vigilant and not those who sleep over their rights as found in the maxim viliantibus Non Dormientibus Jura Subveniunt. In my opinion merely because the assessee is not vigilant, it cannot follow that the assessee is bestowed with a right to delay being condoned. I am conscious of the fact that the period of limitation should not come as a hindrance to do substantial justice between the parties. However, at the same time, a party cannot sleep over its right ignoring the statute of limitation and without giving sufficient and reasonable explanation for the delay. The Apex Court in the case of Office of the Chief Post Master General and Others vs. Living Media India Ltd, and Another, reported in (2012) 348 ITR 7 (SC) while dealing with the condonation of delay application by the State, has observed as under- ‘’12 It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for 5 SMT. RASHMI JAIN VS ITO,WARD 6(2), JAIPUR taking up the matter by way of filing a special leave position in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.
In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any 6 SMT. RASHMI JAIN VS ITO,WARD 6(2), JAIPUR acceptable and cogent reasons sufficient to condone such a huge delay" In view of the above elucidated facts and considering the ratio laid down by the Hon'ble Court in the case cited (supra), the substantial delay of 798 days respectively in filing of appeal on part of the appellant in the instant case cannot be treated as inadvertent and bonafide as prayed by the appellant. After considering the facts of the case, I am of the view that the appellant in this case was not prevented by a sufficient or reasonable cause for preferring the appeal in time. Therefore, the contention of the appellant to admit the appeal with delay is unacceptable and the appeal so filed is therefore not admitted for adjudication. Further, since the appeal so filed is not maintainable on account of substantial delay as held above, other grounds have become infructuous and there arises no occasion to adjudicate the issues on merit.
Thus, the appeal is dismissed.’’ 2.2 During the course of hearing, the main emphasis of the ld. AR of the assessee was that the ld. CIT(A) dismissed the appeal of the assessee on the ground that the appeal was not filed online which was beyond the control of the assessee due to technical reason and he further submitted that the appeal was dismissed by the ld. CIT(A) ex-parte without providing sufficient opportunity to the assessee. Hence, the ld. AR prayed that the ld. CIT(A) should be directed to treat the appeal of the assessee as valid appeal.
2.3 On the other hand, the ld. DR supported the order of the ld. CIT(A)
7 SMT. RASHMI JAIN VS ITO,WARD 6(2), JAIPUR 2.4 We have heard both the parties and perused the materials available on record. The crux of the issue is that the assessee has filed the appeal manually but simultaneously not filed the appeal electronically. Hence, ld. CIT(A) treated the manual appeal filed by the assessee as non est and dismissed the same. The Bench noted that similar type of issue was considered by the ITAT Mumbai Bench in the case of All India Federation of Tax Practitioners vs ITO (E)-1)2_, Mumbai in ITA No. 7134/Mum/2017 vide order dated 4-5-2018 wherein the Bench has restored the matter back to the file of ld. CIT(A) by holding as under:- 6. We have heard the counsels for both the parties and we have also perused the material placed on record as well as orders passed by the revenue authorities. From the records we noticed that electronically filing of the appeals was introduced for the first time vide rule 45 of Income Tax Rules 1962, mandating compulsory e-filing of appeals before appellate Commissioner with effect from 1-3-2016. We noticed that in this respect, there is no corresponding amendment in any of the provisions of the substantive law i.e. Income Tax Act, 1961. As per the facts of the present case, the assessment in the above case was completed under section 143(3) of the Income Tax Act 1961. However the assessee has filed appeal before learned Commissioner (Appeals) in paper form as prescribed under the provisions of Income Tax Act 1961 within the prescribed period of limitation. But the same was dismissed by learned Commissioner (Appeals) by holding that assessee had not filed appeal through electronic form, which is mandatory as per Income Tax Rules 1962. After having considered the entire factual position, we find that Hon’ble Supreme Court in the case of ‘State of Punjab v. Shyamalal Murari & Ors. reported in AIR 1976 (SC) 1177‘ has categorically held that courts should not go strictly by the rulebook to deny justice to the deserving litigant as it would lead to miscarriage of justice. It has been reiterated by the Hon’ble Supreme Court that all the rules of procedure are handmaid of Justice. The language employed by the draftsman of procedural law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of Justice. The Hon’ble Apex Court has said in an ‘adversarial’ system, no party should ordinarily be denied the opportunity of participating in the process of Justice dispensation.
8 SMT. RASHMI JAIN VS ITO,WARD 6(2), JAIPUR The Hon’ble Supreme Court in its judgment reported as AIR 2005 (SC) 3304 in the case of ‘Rani Kusum v. Kanchan Devi,‘ reiterated that, a procedural law should not ordinarily be construed as mandatory, as it is always subservient to and is in aid of Justice. Any interpretation, which eludes or frustrates the recipient of Justice, is not to be followed. From the facts of the present case, we gathered that the assessee had already filed the appeal in paper form, however only the e-filing of appeal has not been done by the assessee and according to us, the same is only a technical consideration. In this respect, we rely upon the judgment of Hon’ble Supreme Court, wherein the Hon’ble Supreme Court has reiterated that if in a given circumstances, the technical consideration and substantial Justice are pitted against each other, then in that eventuality the cause of substantial Justice deserves to be preferred and cannot be overshadowed or negatived by such technical considerations. Apart from above we have also noticed that the Coordinate Bench of Hon’ble ITAT Delhi Bench in Appeal ITA No. 6595/Del/16 in case titled Gurinder Singh Dhillon v. ITO had restored the matter to the file of learned Commissioner (a) under identical circumstances with a direction do decide appeal afresh on merit, after condoning the delay, if any. Since in the present case, we find that appeal in the paper form was already with learned Commissioner (Appeals), therefore in that eventuality the learned Commissioner (Appeals) ought not to have dismissed the appeal solely on the ground that the assessee has not filed the appeal electronically before the appellate Commissioner. Keeping in view the facts and circumstances as well as the case laws discussed and relied upon above, we are of the considered view that the cause of Justice would be served in case, we set aside the orders of learned Commissioner (Appeals) & allow the present appeal. While seeking the compliance, we direct the assessee to file the appeal electronically within 10 days from the date of receipt of this order. In case, the directions are followed then in that eventuality, the delay in e-filing the appeal shall stand condoned. Learned Commissioner (Appeals) is further directed to consider the appeal filed by the assessee on merits by passing a speaking order. Resultantly, we allow the appeal filed by the assessee.
In the net result the appeal filed by the assessee is allowed.”
In view of the above decision of ITAT Mumbai Bench in the case of All India Federation of Tax Practitioners vs ITO (supra), assessee is directed to file the 9 SMT. RASHMI JAIN VS ITO,WARD 6(2), JAIPUR appeal electronically before the ld. CIT(A) who will pass the afresh speaking order on merit. Thus the appeal of the assessee is allowed for statistical purposes. In the result, the appeal filed by the assessee is allowed for statistical 3.0 purposes. Order pronounced in the open court on 08/06/2023.