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Income Tax Appellate Tribunal, MUMBAI BENCHES “SMC”, MUMBAI
Before: Shri Joginder Singh,
आदेश / O R D E R
The assessee is aggrieved by the impugned order dated 10/10/2013 of the Ld. First Appellate Authority, Mumbai. The only ground raised in this appeal pertains to disallowance of various expenses, on adhoc basis, amounting to Rs.2,21,186/- i.e. 10% of total expenses.
During hearing of this appeal, nobody appeared on behalf of the assessee, in spite of issuance of registered AD notice to the assessee. The registered notice sent to the assessee was returned back with the remark “left”, sent at the address mentioned in record (form no.35 and impugned order). Thus, I have no option but to proceed ex-parte, qua the assessee, and tend to dispose of on the basis of material available on record.
2.1. It is also noted that appeal is barred by limitation by 637 days. The assessee has not filed an application for condonation of delay, however, the assessee has filed one affidavit for condonation of delay in filing the appeal. By taking a lenient view and the contents of the affidavit, wherein, it has been mentioned that the mother of the assessee died due to breast cancer and the assessee become disturbed which cause the delay. The ld. DR, Shri, A.K.Dhondial opposed the condonation of delay by contending that the assessee was expected to file the appeal in time.
2.2. I have considered the submissions of ld. DR and perused the material available on record. 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 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 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.
Having made the aforesaid observation, I may now consider the plea of the assessee. The circumstances narrated by the assessee in his affidavit, wherein, he has stated that his mother died of Cancer and he became so sad which caused the delay, therefore, under the facts and the circumstances narrated hereinabove, the delay is condoned.