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Income Tax Appellate Tribunal, DELHI BENCH “DB”: NEW DELHI
Before: SHRIR.K. PANDA & SHRI N. K. CHOUDHRY
PER N.K. CHOUDHRY, J. M.: 1. This appeal has been preferred by the Assessee against the order dated 19.03.2019 impugned herein passed by the ld. Commissioner of Income Tax (Appeals)–Dehradun {hereinafter called in short as the “ld. Commissioner”} u/s 250(6) of the Income Tax Act, 1961 (in short “the Act”) for the assessment year 2014-15.
In this case the assessment order was passed u/s 144 of the Act by the AO, whereby AO made the additions of Rs. 2,07,000/- u/s 68 of the Act on account of amount deposited by the Assessee in the bank account and of Rs. 30 lakhs u/s 69 of the Act on account of purchase of immovable property by the Assessee.
Against the said additions the Assessee filed an appeal before the ld. Commissioner. It appears from the impugned order that the Assesseeon various dates failed to appear before the ld. Commissioner to prosecute its appeal and later on after engaging new counsel, filed an application for condonation of delay in filing of the appeal before the ld. Commissioner.
3.1 The Ld. Commissioner dismissed the appeal of the Assessee while holding that a perusal of the submission show that the AR of the Appellanthas made erudite legal arguments citing case laws and had made a valiant legal attempt to make out a case of reasonable cause and seek condonation of delay in filing appeal. However, since there is no explanation with regard to day to day delay and no substantial facts regarding delay have been brought on record for my consideration. I therefore did not find any force in the argument of the ld. AR and reject the plea for condonation of delay and the appeal of the Assessee fails in limine.
We have heard the Ld. DR. and perused the material available on record. The law is well settled by the Higher Courts that while dealing with the application for condonation of delay, the Court is to see the conduct of the party and plausible reasoning for non-filing of the statutory appeal within time. The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice.
4.1 The Hon’ble Apex Court In the case of State of Bihar &Ors. Vs. Kameshwar Prasad Singh & Anr.[1], held that power to condone the delay in approaching the Court has been conferred upon the Courts to enable them to do substantial justice to parties by disposing the cases on merit.
4.2 The Hon’ble Apex Court in Collector, Land Acquisition, Anantnag v. Mst. Katiji (1987)ILLJ 500 SC, analyzed the provisions of law qua limitation Act and held that the expression 'sufficient cause' employed by the legislature in the Limitation Act is adequately elastic to enable the Courts to apply the law in a meaningful manner which sub-serves the ends of justice-that being the life purpose for the existence of the institution of Courts. It was further observed that a liberal approach is required to be adopted on principle. For ready reference the concluding part of the Judgment is reproduced herein below:
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. 5. 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. 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. XXX XXXXXX
4.4 The Hon’bleApex Court in N. Balakrishnan Vs. M. Krishnamurthy 2008(228) ELT 162(SC), the Apex Court, while condoning the delay of 883 days in filing an application for setting aside the ex-parte decree held as under:
"That the purpose of Limitation Act was not to destroy the rights. It is founded on public policy fixing a life span for the legal remedy for the general welfare. The primary function of a Court is to adjudicate disputes between the parties and to advance substantial justice. The time limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. The object of providing legal remedy is to repair the damage caused by reason of legal injury. If the explanation given does not smack mala fides or is not shown to have been put forth as a part of a dilatory strategy, the Court must show utmost consideration to the suitor."
It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncontainable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior Court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammelled by the conclusion of the lower Court."
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 Jain Vs. KuntalKumari [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 court 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.
4.5 The Hon’ble Apex Court in the case of Nand Kishore v. State of Punjab {(1995)6 SCC 614}under the peculiar circumstances of the case condoned the delay of about 31 years, in approaching the apex Court.
It must be remembered that in every case of delay there can be some lapse of the litigant concerned. That alone is not enough to turn down the pleas and to shut the doors against him. If explanation does not smack mala fide or does not put forth as a dilatory strategy, the Court must show utmost consideration of such litigant. The Apex Court in the case of N. Balakrishnan (supra), clearly held that the length of delay is immaterial, it is the Page | 5
acceptability of the explanation and that is the only criteria for condoning the delay. The primary function of a Court is to adjudicate disputes between the parties and to advance substantial justice.It is well settled that bonafidelis cannot be thrown out on the basis of legal technicalities and it is utmost duty of the Courts to adjudicate the same. As it is well settled that the period of delay is not relevant for considering the application for condonation of delay. What is required to be seen is as to whether a party seeking condonation of delay has made out a “sufficient cause or not”.
5.1 We have perused the impugned order and observe that in the order the ld. Commissioner did not mention the length of delay and also the legal arguments raised and case laws submitted by the Assessee and even otherwise nothing appears as to what reasonable cause has been shown for seeking the condonation of delay in filing appeal.
Considering the peculiar facts and circumstances as stated above and finding that the Ld. Commissioner failed to mention the reasons as stated by the Assessee before him qua delay in filling of the appeal, we are unable to adjudicate this appeal, hence in the interest of justice and for just decision of the case, we deem it appropriate to remand the case to the file of the ld. Commissioner to decide application for condonation of delay along-with the appeal afresh, ordered accordingly.
In the result, the appeal of the Assessee is allowed for statistical purposes. Order pronounced in the open court on 23/02/2022. -Sd/- -Sd/- (R.K. PANDA) (N.K. CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 23/02/2022
A K Keot Copy forwarded to 1. Applicant 2. Respondent 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, New Delhi