Delay in filing appeal by 515 days condoned by Tribunal- Rakesh Garg Vs. ITO
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Case Name: |
Rakesh Garg Vs. ITO |
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Case Details: |
ITA No. 316 to 318/JP/2020 |
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Order pronounced by: |
ITAT Jaipur |
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Date of Order: |
28/01/2021 |
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In favour of: |
Assessee |
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Assessment Year: |
2013-14 to 2015-16 |
Tribunal Verdict
There is no dispute and is admitted fact that there has been a delay in filing the present appeal by 515 days. There is also no dispute that under section 253(5) of the Act, the Tribunal may admit an appeal filed beyond the period of limitation where it is satisfied that there exists a sufficient cause on the part of the assessee for not presenting the appeal within the prescribed time. The explanation of the assessee therefore becomes relevant to determine whether the same reflects sufficient and reasonable cause on its part in not presenting the appeal within the prescribed time.
In the instant case, the Ld. CIT(A) has passed ex-parte order. It has come to knowledge of the assessee when application under Vivad Se Vishwas Scheme was rejected by the CIT and the reason was that no appeal is pending. Then the counsel visited the site of ITBA of assessee then it came to the knowledge of the assessee that the order has already been passed by the Ld. CIT(A) on ex-parte basis. The assessee has not received any notice for hearing of the appeal as well as the order passed by CIT(A). The assessee was not aware about the order of CIT(A) till the rejection of application for Vivad Se Vishwas Scheme. However, as soon as assessee came to know of subsequently penalty order being passed against it, it consulted its counsel and based on his advice, the appeal has been filed though with a delay of 515 days.
The Tribunal accepted the plea of the assessee and condoned the delay in filing the appeal as it was satisfied that there was sufficient cause for not presenting the appeal within the prescribed time.
The following cases are quoted in support:
Vijay Vishan Meghani Vs. DCIT (Bombay HC) 2017 398 ITR |
Held- Supreme Court in case of Concord of India Insurance Co. Ltd. Vs. Smt. Nirmala Devi and Others held that legal advice tendered by a professional and litigant acting upon it one way or other could be sufficient cause to seek condonation of delay. None should be deprived of an adjudication on merits unless the court found that litigant deliberately and intentionally delayed filing of appeal. In this very case, the Tribunal possibly got carried away by the fact that delay of 2984 days was incapable of condonation. The Tribunal’s order did not meet requirement set out in law and misdirected itself. Therefore, the Tribunal erred in law and on facts in refusing the condonation of delay. |
Just Steels Vs. DCIT (2012) 74 DTR (MA) 86 |
Appeal could not be filed in time before ITAT as the order of CIT(A) was misplaced. The firm stood dissolved and was recurring into losses. Delay to be condoned. |
Oracle India Pvt. Ltd. Vs. DCIT (2008) 13 DTR 371 |
Delay of 1297 days in filing appeal being on account of lapse on the part of consultant and not being malafide- there was valid reason warranting condonation of delay. |
Improvement Trust Vs. Ujagar Singh (SC) Civil Appeal Nos. 2395 of 2008 dated 26.06.2010 |
Unless mala fides are writ large, delay should be condoned. Matters should be disposed of on merits and not technicalities. |
Hon’ble Apex Court in Collector, Land Acquisition Vs. Mst. Katji & Others (supra) |
When substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred, the other side cannot claim to have vested in injustice being done because non-deliberate delay. There is no presumption that delay is occasioned deliberately or on account of culpable negligence or on a malafide. The litigation does not stand to benefit by resorting to delay, in fact he is on serious risk. |
Hon’ble Madras HC in S. Duraipandi (supra) |
When the assessee faced the financial hardship to pay tax due to relevant time and after making sufficient arrangement of funds can pay taxes, due to delay was to be condoned |
Co-ordinate Bench of Cochin Tribunal in Kaikara Construction Co. |
Facing acute financial crisis and multiple legal proceedings can be treated as a reasonable ground for delay in filing of appeal before CIT(A).
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Co-ordinate Bench of Delhi Tribunal in ACIT Vs. Jay Dee Securities & Finance Ltd. (supra) |
Where there was no gross negligence or latches on the part of assessee, the delay should be condoned and appeal of the assessee should be heard on merit. |
Hon’ble Supreme Court in Vedabai Aoias Vaijayantabai Baburao Patil Vs. Shantaram Baburao Patil (supra) |
The court has to exercise the discretion of the facts of each keeping in mind that in construing the expression ‘sufficient cause’, the principal of advancing justice is of prime importance. The court should adopt pragmatic approach. |
Hon’ble Supreme Court in B. Madhuri Goud V. B. Damodar Reddy (2012) 12 SCC 693 |
Held that:-
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Click to access complete order: Rakesh Garg Vs. ITO- ITAT Jaipur
