M/S ZERINA MARINE (P) LTD.,BHUBANESWAR vs. DY. CIT CIRCLE-1, BHUBANESWAR

It must be mentioned here that before the AO, no evidence has been produced. The assessment order is an ex-parte order. Before the ld. CIT(A), no evidence has been produced. The ld. CIT(A) has dismissed the appeal of the assessee on the ground of limitation. This Tribunal is unable to fathom as to how the ld. AR is proposing to file document before the Tribunal when the same have not been produced before the lower authorities. This being so, the adjournment application filed by the assessee is rejected. Heard on the question of condonation of delay 4. The appeal filed by the assessee before the Tribunal is allegedly belated by 5820 days. The facts that giving rise to the appeal have a chequered history. The assessment order came to be passed u/s.144 of the Act ex-parte on 16.03.2001. The assessee has filed a Writ Petition before the Hon’ble Jurisdictional High Court against the assessment order. The Writ Petition was registered as OJC No.2845 of 2002. The Writ Petition came to be decided by the Hon’ble Jurisdictional High Court vide order dated 14.03.2002, wherein the Hon’ble Jurisdictional high Court had declined to entertain the writ petition as the petitioner had an efficacious alternative remedy. Consequently on 17.04.2002, the assessee filed an appeal before the ld. CIT(A)-2, Bhubaneswar. Before the ld. CIT(A), the assessee had attempted to explain the delay of 360 days by stating that the Hon’ble Jurisdictional High Court had permitted the assessee to seek alternate remedy by way of appeal but the ld. CIT(A) had dismissed the appeal of the assessee on limitation by holding that the Hon’ble Jurisdictional High Court had not given any specific direction to condone the delay. The ld. CIT(A)’s order is dated 21.05.2003. Against the order of the ld. CIT(A), the assessee had again filed a writ petition before the Hon’ble Jurisdictional High Court in WP(C) No.7917 of 2008. Here what is to be understood is that the time limit for filing the appeal before the Tribunal against the order of the ld. CIT(A) expired in July, 2003. The Writ Petition has been filed only in 2008 much after the expiry of the limitation for filing the appeal before the Tribunal. In effect, the writ petition has been filed before the Hon’ble Jurisdictional High Court only for the purpose of overcoming the issue of limitation in filing the appeal before the Tribunal. The Hon’ble Jurisdictional High Court in Writ petition No.7917 of 2008 has, however, directed the Tribunal that if the appeal is filed not later than 20th June, 2022 along with an application for condonation of delay, explaining the delay on account of pendency of the present petition, it will be considered by the appellate authority in accordance with law. Admittedly, the assessee has filed the appeal before the Tribunal on 17.06.2022. Thus, the assessee has complied with the order of the Hon’ble Jurisdictional High Court passed in WP (C) No.7917 of 2008. The assessee has also filed an application for condonation of delay and in the said application the assessee has explained the delay to be on account of the pendency of the writ petition before the Hon’ble Jurisdictional High Court. As the assessee has complied with the direction of the Hon’ble Jurisdictional High Court in WP (C) No.7917 of 2008, dated 02.05.2022, we are of the view that the delay in filing of this appeal before the Tribunal is liable to be condoned and we do so.

Though the ld. Sr. DR has vehemently opposed the condonation of delay, however, it is also well-known fact that if the technicality is pitted against substantial justice, the technicality must step back and substantial