Sai Rajesh, Palakkad v. Income Tax Officer, Palakkad

ITA 101/COCH/2009 | 2003-2004
Pronouncement Date: 30-07-2010

Appeal Details

RSA Number 10121914 RSA 2009
Assessee PAN ACSPR8487Q
Bench Cochin
Appeal Number ITA 101/COCH/2009
Duration Of Justice 1 year(s) 5 month(s) 4 day(s)
Appellant Sai Rajesh, Palakkad
Respondent Income Tax Officer, Palakkad
Appeal Type Income Tax Appeal
Pronouncement Date 30-07-2010
Appeal Filed By Assessee
Bench Allotted DB
Tribunal Order Date 30-07-2010
Assessment Year 2003-2004
Appeal Filed On 24-02-2009
Judgment Text
IN THE INCOME TAX APPELLAT E TRIBUNAL COCHIN BENC H COCHIN BEFORE S/SHRI T.R.SOOD AM AND N.VIJAYAKUM ARAN JM I.T.A. NOS. 99-102/COCH/2009 ASSESSMENT YEARS : 2001-02 TO 2003-04 & 2005-06 SAI RAJESH PROP. KING LIQUOR BAR RAJAPRASTHAM MELEPATTAMBI PALAKKAD. [PAN: ACSPR 8487Q] VS. INCOME TAX OFFICER WARD-2 PALAKKAD. (ASSESSEE -APPELLANT) (REVENUE- RESPONDENT) ASSESSEE BY NONE REVENUE BY SHRI T.J.VINCENT DR O R D E R PER T.R.SOOD AM: IN ALL THESE APPEALS VARIOUS GROUNDS HAVE BEEN RA ISED BY THE ASSESSEE. 2. NONE APPEARED INSPITE OF NOTICE. HOWEVER DURING THE HEARING WE NOTICED THAT THE LD. CIT(A) HAD DISMISSED THE ASSESSEES APPEALS BECAUS E THE SAME WERE LATE BY NINE DAYS. THIS IS A VERY SMALL DELAY AND THE LD. CIT(A) SHOUL D HAVE TAKEN A LIBERAL VIEW PARTICULARLY WHEN THE REASONS FOR SUCH DELAY BEING PERSONAL PROB LEMS OF THE ACCOUNTANT AND THE ASSESSEE BEING OUT OF STATION FOR A MONTH WERE ALSO FURNISH ED. THEREFORE WE DECIDED TO HEAR THESE APPEALS ON EX PARTE BASIS. 3. THE LD. DR WAS HEARD. 4. AFTER CONSIDERING THE SUBMISSIONS OF THE LD. DR AND THE RELEVANT MATERIAL ON RECORD WE FIND THAT ALL THESE APPEALS WERE FILED LATE BY N INE DAYS BEFORE THE LD. CIT(A) RAISING VARIOUS ISSUES. THE LD. CIT(A) LISTED THE APPEALS F OR HEARING AND AS PER THE DATE OF HEARINGS ITA.NOS. 99 100 101 & 102/COCH./2009 2 GIVEN IN THE ORDER THE APPEALS WERE LISTED ON 7.8. 2008 14.10.2008 AND 26.11.2008. ONLY ON 14.10.2008 SHRI C.R. HARISH LD. AR APPEARED AND S OUGHT ADJOURNMENT. NONE APPEARED BEFORE THE LD. CIT(A) ON 26.11.2008 AND THEREFORE THE LD. CIT(A) DISMISSED THE APPEALS VIDE PARAS 2.1 AND 2.2 OF HIS ORDER WHICH ARE AS UNDER:- 2.1 THE APPEALS FOR ALL THE FOUR YEARS ARE DELAYED AND IN THE PETITION FOR CONDONATION OF DELAY ENCLOSED WITH THE APPEALS R EASON CITE IS THAT DUE TO PERSONAL PROBLEMS THE ACCOUNTANT OF THE APPELLANT WAS OUT OF STATION FOR A MONTH AND APPEAL PAPERS COULD BE PREPARED ONLY ON RETURN. 2.2 AFTER CONSIDERING ALL FACTS ON RECO RD INCLUDING LACK OF EVIDENCE AND NON COOPERATION FROM THE APPELLANT I AM CONSTRAINED T O DISMISS THE APPEALS FOR ALL THE YEARS WITHOUT CONDONING THE DELAY IN FILING THE A PPEALS ON THE GROUND THAT THERE IS NO VALID REASON FOR DELAY. 5. THE ABOVE PARAS SHOW THAT THE APPEALS HAVE BEEN DISMISSED IN A VERY MECHANICAL FASHION PARTICULARLY WHEN THE ASSESSEE HAS GIVEN THE REASONS FOR FILING THE APPEALS LATE. ONE OF THE REASONS IS THAT THE ASSESSEE WAS OUT OF STA TION FOR A MONTH AND PAPERS FOR APPEALS COULD BE PREPARED ONLY ON THE RETURN OF THE ASSESSE E. THE HONBLE SUPREME COURT IN THE CASE OF COLLECTOR LAND ACQUISITION VS. M.S.T. KATI JI & OTHERS 167 ITR 471 HAS CONSIDERED THE ISSUE REGARDING CONDONATION OF APPEALS IN DETAI L AND HAS RATHER ISSUED CERTAIN DIRECTIONS FOR THE LOWER COURTS AND TRIBUNALS WHICH ARE AS UND ER:- THE LEGISLATURE HAS CONFERRED POWER TO CONDONE DE LAY BY ENACTING SECTION 5 OF THE LIMITATION ACT 1963 IN ORDER TO ENABLE THE C OURTS TO DO SUBSTANTIAL JUSTICE TO PARTIES BY DISPOSING OF MATTERS ON MERITS. THE EXPRESSION SUFFICIENT CAUSE EMPLOYED BY THE LEGISLATURE IS ADEQUATELY ELASTI C TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SUBSERVES THE EN DS OF JUSTICE THAT BEING THE LIFE- PURPOSE OF THE EXISTENCE OF THE INSTITUTION OF COU RTS. IT IS COMMON KNOWLEDGE THAT THIS COURT HAS BEEN MAKING A JUSTIFIABLY LIBERAL APPROA CH IN MATTERS INSTITUTED IN THIS COURT. BUT THE MESSAGE DOES NOT APPEAR TO HAVE PER COLATED DOWN TO ALL THE OTHER COURTS IN THE HIERARCHY. ITA.NOS. 99 100 101 & 102/COCH./2009 3 EVERY DAYS DELAY MUST BE EXPLAINED DOES NOT ME AN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOURS DE LAY EVERY SECONDS DELAY? THE DOCTRINE MUST BE APPLIED IN A RATIONAL AND CO MMON SENSE AND PRAGMATIC MANNER. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERAT ION ARE PITTED AGAINST EACH OTHER THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTI CE BEING DONE BECAUSE OF A NON-DELIBERATE DELAY. THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONED DELIBERATELY OR ON ACCOUNT OF CULPABLE NEGLIGENCE OR ON ACCOUNT OF MALA FID ES. A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY. INFACT HE RUN S A SERIOUS RISK. IT MUST BE GRASPED THAT THE JUDICIARY IS RESPECTE D NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GROUNDS BUT BE CAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. THE ABOVE WOULD SHOW THAT A VERY LIBERAL APPROACH H AS TO BE TAKEN WHILE CONSIDERING THE CONDONATION OF DELAY. 6. IN THE CASES BEFORE US THE DELAY IS ONLY FOR NI NE DAYS AND THERE SEEMS TO BE A SUFFICIENT AND REASONABLE CAUSE FOR FILING THE APPE ALS LATE. THEREFORE THE LD. CIT(A) SHOULD HAVE CONDONED THE DELAY AND EVEN IF HE HAD WANTED T O DECIDE THE APPEALS EX PARTE THE SAME SHOULD HAVE BEEN DONE BY ADJUDICATING THE ASSESSEE S APPEALS ON MERITS. THEREFORE IN THE INTEREST OF JUSTICE WE CONDONE THE DELAY OF NINE D AYS FOR FILING THE APPEALS BEFORE THE CIT(A) AND REMAND THE MATTER BACK TO THE FILE OF TH E LD. CIT(A) WITH A DIRECTION TO RE- ADJUDICATE THE APPEALS ON MERITS. HOWEVER THE ASS ESSEE IS .ALSO DIRECTED TO COOPERATE IN THE PROCEEDINGS BEFORE THE LD. CIT(A). ITA.NOS. 99 100 101 & 102/COCH./2009 4 7. IN THE RESULT THE ASSESSEES APPEALS ARE ALLOWE D FOR STATISTICAL PURPOSES. SD/- SD/- (N.VIJAYAKUMARAN) (T.R.SOOD) JUDICIAL MEMBER ACCOU NTANT MEMBER PLACE: ERNAKULAM DATED : 30TH JULY 2010 GJ COPY TO: 1. SAI RAJESH PROP. KING LIQUOR BAR RAJAPRASTHAM MELEPATTAMBI PALAKKAD. 2. THE INCOME TAX OFFICER WARD-2 PALAKKAD. 3 .THE COMMISSIONER OF INCOME-TAX (A)-V KOCHI. 4. THE COMMISSIONER OF INCOME-TAX TRICHUR. 5. D.R./I.T.A.T. COCHIN BENCH COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR)