Ravinder Kumar Walia, Haridwar v. DCIT Circle, Haridwar

ITA 2775/DEL/2019 | 2013-2014
Pronouncement Date: 31-05-2021 | Result: Allowed

Appeal Details

RSA Number 277526014 RSA 2019
Assessee PAN AASPW1067H
Bench Dehradun
Appeal Number ITA 2775/DEL/2019
Duration Of Justice 2 year(s) 1 month(s) 29 day(s)
Appellant Ravinder Kumar Walia, Haridwar
Respondent DCIT Circle, Haridwar
Appeal Type Income Tax Appeal
Pronouncement Date 31-05-2021
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 31-05-2021
Assessment Year 2013-2014
Appeal Filed On 01-04-2019
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DEHRADUN CIRCUIT BENCH: DEHRADUN BEFORE SHRI SUDHANSHU SRIVASTAVA JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI ACCOUNTANT MEMBER ITA NO.2775/DEL/2019 (ASSESSMENT YEAR 2013-14) RAVINDER KUMAR WALIA 653 VILLAGE SARAI JWALAPUR HARIDWAR (UTTRAKHAND) PAN AASPW 1067H VS. DY.CIT HARIDWAR. (APPELLANT) (RESPONDENT) APPELLANT BY SH. TARUNDEEP ADV. & SH. RAMAN JAIN CA RESPONDENT BY SH. N.C. UPPADHAY SR. DR DATE OF HEARING 04.03.2021 DATE OF PRONOUNCEMENT 31.05.2021 ORDER PER SUDHANSHU SRIVASTAVA JM: THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER DATED 7 TH FEBRUARY 2018 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEAL) DEHRADUN {CIT (A)}. 2 ITA NO. 2775/DEL/2019 RAVINDER KUMAR WALIA VS. DCIT 2.0 THE GROUNDS OF APPEAL ARE AS UNDER:- 1. THAT ON THE FACTS AND INLAW THE ORDERS PASSED BY ASSESSING OFFICER {HEREINAFTER REFERRED TO AS THE AO} AND COMMISSIONER OF INCOME TAX (APPEALS) {HEREINAFTER R EFERRED TO AS THE CIT (A)} ARE VOID AB-INITIO AND BAD IN LAW. 2. THAT ON FACTS AND IN LAW THE CIT(A) HAS ERRED IN UPHOLDING THE ADDITION OF RS.50 00 000 MADE BY LD. AO U/S 40A (3) ON ACCOUNT OF AGRICULTURAL LAND PURCHASED BY APPELLANT . 2.1 THAT ON FACTS AND IN LAW THE AO/CIT (A) HAS ERR ED IN NOT APPRECIATING THAT THE LAND PURCHASED BY THE APPELLA NT WAS AGRICULTURAL IN NATURE AND HENCE A PERSONAL CAPITAL ASSET AND NOT A BUSINESS EXPENDITURE. HENCE SECTION 40A (3) F INDS NO APPLICABILITY ON ABOVE INVESTMENT. 2.2 THAT ON FACTS AND IN LAW THE AO/CIT (A) HAS ERR ED IN NOT APPRECIATING THAT ADDITION MADE SECTION 40A(3) FIN DS NO MERIT IF THE IDENTITY OF PAYEE IS ESTABLISHED IN THE TRANSAC TION. SINCE IN CASE OF APPELLANT THE AMOUNT PAID WAS FOR PURCHASE OF AN AGRICULTURAL LAND VIDE PURCHASE DEED EXECUTED BETWE EN THE APPELLANT AND SELLER HENCE IDENTITY OF SELLER WAS ESTABLISHED. 2.3 THAT ON FACTS AND IN LAW THE AO/CIT (A) HAS ERR ED IN NOT APPRECIATING THAT CAPITAL GAIN TAX WAS LEVIABLE ON RECIPIENTS OF AMOUNT AGAINST AGRICULTURAL LAND PURCHASED BY APPEL LANT AND BY DISALLOWING THE AMOUNT OF PURCHASE IN HAND OF APPEL LANT INCOME 3 ITA NO. 2775/DEL/2019 RAVINDER KUMAR WALIA VS. DCIT TAX WAS LEVIED AT THE HANDS OF BUYER APPELLANT AND SELLER BOTH LEADING TO DOUBLE TAXATION. 2.4 THAT ON FACTS AND IN LAW THE AO/CIT (A) HAS ERR ED IN NOT APPRECIATING THAT THE SAID AGRICULTURAL LAND WAS SO LD IN THE SAME FINANCIAL YEAR. THE DISALLOWANCE OF TOTAL PURCHASE AMOUNT SHALL LEAD TO UNJUST DOUBLE TAXATION ON PURCHASE AND SALE BOTH. 2.5 THAT ON FACTS AND IN LAW THE AO/CIT (A) HAS ERR ED IN NOT APPRECIATING THAT THE LEARNED AO HAD ALREADY REJECT ED BOOKS OF APPELLANT DURING ASSESSMENT AND ONCE BOOKS ARE REJE CTED ANY ADDITION ON ACCOUNT OF DISALLOWANCE U/S 40A(3) IS B AD IN LAW AND NULL AND VOID. 3. THAT ON FACTS AND IN LAW THE AO/CIT (A) HAS ERRE D IN UPHOLDING THE REJECTION OF BOOKS OF ACCOUNTS OF APP ELLANT BY LEARNED AO. 3.1 THAT ON FACTS AND IN LAW THE AO/CIT (A) HAS ERR ED IN NOT APPRECIATING THAT THE BOOKS OF ACCOUNTS WERE AUDITE D BY A QUALIFIED CHARTERED ACCOUNTANT AS PER PROVISIONS OF INCOME TAX ACT. 3.2 THAT ON FACTS AND IN LAW THE AO/CIT (A) HAS ERR ED IN NOT APPRECIATING THAT THE BOOKS OF ACCOUNTS WERE WRONGL Y REJECTED BY LEARNED AO WITHOUT MENTIONING ANY SPECIFIC DEFECT I N THE BOOKS OF ACCOUNTS AND WITHOUT GIVING ANY SPEAKING ORDER. IN SUCH CIRCUMSTANCE THE REJECTION OF BOOKS OF ACCOUNTS BY LEARNED AO IS ARBITRARY AND HENCE IS BAD IN LAW AND NULL AND VOID . 4 ITA NO. 2775/DEL/2019 RAVINDER KUMAR WALIA VS. DCIT 4. THAT ON FACTS AND IN LAW THE CIT (A) HAS ERRED I N UPHOLDING THE DISALLOWANCE MADE U/S 40A (3) OF RS.479650. 4.1 THAT ON FACTS AND IN LAW THE AO/CIT (A) HAS ERR ED IN NOT APPRECIATING THAT THE AMOUNT INCURRED WAS NOT PAID TO SINGLE SUPPLIER AGAINST SINGLE BILL. THAT ON FACTS AND IN LAW THE AO/CIT(A) ERRED IN NOT APPRECIATING THAT THE LEARNE D AO HAD ALREADY REJECTED BOOKS OF APPELLANT DURING ASSESSME NT AND ONCE BOOKS ARE REJECTED ANY ADDITION ON ACCOUNT OF DISA LLOWANCE U/S 40A(3) IS BAD IN LAW AND NULL AND VOID. 4.2 THAT ON FACTS AND IN LAW THE AO/CIT (A) HAS ERR ED IN NOT APPRECIATING THAT THE AMOUNT INCURRED WAS ON PERSON AL ASSETS OF THE APPELLANT AND NOT CLAIMED AS BUSINESS EXPENDITU RE. HENCE SECTION 40A (3) DOES NOT HAVE ANY APPLICABILITY ON THE SAID AMOUNT. THAT ON FACTS AND IN LAW THE AO/CIT (A) HAS ERRED IN NOT APPRECIATING THAT ADDITION MADE IN SECTION 40A (3) FINDS NO MERIT IF THE IDENTITY OF PAYEE IS ESTABLISHED IN THE TRAN SACTION. SINCE IN CASE OF APPELLANT THE PAYEE WAS FULLY IDENTIFIABLE HENCE IDENTITY OF SELLER WAS ESTABLISHED. 5. THAT ON FACTS AND IN LAW THE AO/CIT (A) HAS ERRE D IN UPHOLDING THE DISALLOWANCE OF RS.19 53 342 ON ACCOU NT OF DISALLOWANCE U/S 40A(IA) OF INCOME TAX ACT DUE TO N ON DEDUCTION OF TDS. 5.1 THAT ON FACTS AND IN LAW THE AO/CIT (A) HAS ERR ED IN NOT APPRECIATING THAT THE AMOUNT PAID WAS NOT FOR CONTR ACTUAL 5 ITA NO. 2775/DEL/2019 RAVINDER KUMAR WALIA VS. DCIT PAYMENT BUT WAS EITHER PAID FOR SUPPLY OF GOODS AND SALARY. HENCE SECTION 40(A)(IA) DOES NOT HAVE ANY APPLICABI LITY ON THE SAID AMOUNT. 5.2 THAT ON FACTS AND IN LAW THE AO/CIT (A) HAS ERR ED IN NOT APPRECIATING THAT THE ADDITION MADE BY LEARNED AO I S ON ESTIMATE BASIS PRESUMING THE PAYMENTS MADE TO THE C ONTRACTUAL PAYMENTS AND WITHOUT ANY CONCRETE EVIDENCE. HENCE T HE ADDITION MADE IS BAD IN LAW AND IS NULL AND VOID. 6. THAT ON FACTS AND IN LAW THE CIT (A) HAS ERRED I N UPHOLDING THE DISALLOWANCE OF RS.20 07 395 ON ACCOUNT OF DISA LLOWANCE U/S 40(A)(IA) OF INCOME TAX ACT DUE TO NON DEDUCTION OF TDS. 6.1 THAT ON FACTS AND IN LAW THE AO/CIT (A) HAS ERR ED IN NOT APPRECIATING THAT THE ADDITION MADE BY LEARNED AO I S ON ESTIMATE BASIS PRESUMING THE 50% PAYMENTS TO BE CONTRACTUAL PAYMENTS AND WITHOUT ANY CONCRETE EVIDENCE. HENCE THE ADDITI ON MADE IS BAD INLAW AND IS NULL AND VOID. 6.2 THAT ON FACTS AN IN LAW THE AO /CIT (A) ERRED I N NOT APPRECIATING THAT THE AMOUNT PAID WAS NOT FOR CONTR ACTUAL PAYMENT BUT WAS EITHER PAID FOR SUPPLY OF GOODS AND IMPREST TO SUPERVISING STAFF WHO FURTHER MADE PAYMENTS TO CASU AL LABOURERS. HENCE SECTION 40(A)(IA) DOES NOT HAVE AN Y APPLICABILITY ON THE SAID AMOUNT. 6 ITA NO. 2775/DEL/2019 RAVINDER KUMAR WALIA VS. DCIT 7. THAT ON FACTS AND IN LAW THE CIT (A) HAS ERRED I N UPHOLDING THE DISALLOWANCE OF RS 66 51 647 ON ACCOUNT OF DISA LLOWANCE MADE U/S 40A(3) OF THE INCOME TAX ACT. 7.1 THAT ON FACTS AND IN LAW THE AO /CIT (A) ERRED IN NOT APPRECIATING THAT THE ADDITION MADE BY LEARNED AO I S ON ESTIMATE BASIS PRESUMING THE PAYMENTS TO THE TUNE O F 50% TO BE MADE IN VIOLATION OF SECTION 40A(3). HENCE THE ADDI TION MADE IS BAD IN LAW AND IS NULL AND VOID. 7.2 THAT ON FACTS AND IN LAW THE AO/CIT (A) ERRED I N NOT APPRECIATING THAT THE AMOUNT INCURRED WAS NOT PAID TO SINGLE SUPPLIER AGAINST SINGLE BILL. THAT ON FACTS AND IN LAW THE AO / CIT (A) ERRED IN NOT APPRECIATING THAT THE LEARNED AO H AD ALREADY REJECTED BOOKS OF APPELLANT DURING ASSESSMENT AND O NCE BOOKS ARE REJECTED ANY ADDITION ON ACCOUNT OF DISALLOWAN CE U/S 40A (3) IS BAD IN LAW AND NULL AND VOID. 7.3 THAT ON FACTS AND IN LAW THE AO /CIT (A) ERRED IN NOT APPRECIATING THAT ADDITION MADE IN SECTION 40A (3) FINDS NO MERIT IF THE IDENTITY OF PAYEE IS ESTABLISHED IN THE TRAN SACTION. SINCE IN CASE OF APPELLANT THE PAYEE WAS FULLY IDENTIFIABLE HENCE IDENTITY OF SELLER WAS ESTABLISHED. 3.0 AT THE OUTSET THE LD. AUTHORISED REPRESENTATIVE (AR) SUBMITTED THAT THERE WAS A DELAY OF 358 DAYS IN FILING THIS APPEAL. IN THIS REGARD THE LD. AR INVI TED OUR ATTENTION TO 7 ITA NO. 2775/DEL/2019 RAVINDER KUMAR WALIA VS. DCIT THE APPLICATION FILED U/S 253(5) OF THE INCOME TAX ACT 1961 (HEREINAFTER CALLED THE ACT) SEEKING CONDONATION OF DELAY. THE LD. AR ALSO INVITED OUR ATTENTION TO THE AFFIDAVIT FILE D BY THE ASSESSEE EXPLAINING THE CAUSE FOR FILING A BELATED APPEAL. I T WAS SUBMITTED BY THE LD. AR THAT WHEN THE IMPUGNED ORDER WAS SERVED T HE ASSESSEE HAD ENGAGED SHRI VIKAS PARDESI ADVOCATE FROM HARID WAR FOR DRAFTING AND FILING OF APPEAL BEFORE THIS TRIBUNAL. THEREAFTER THE APPEAL WAS DRAFTED BY THE COUNSEL AND SIGNED BY THE ASSESSEE ON 21 ST MARCH 2018. THE APPEAL DOCUMENTS WERE GIVEN TO SH RI VIKAS PARDESI FOR FURTHER FILING WITH REGISTRY OF THIS TRI BUNAL. HOWEVER ON 29 TH MARCH 2018 THE HEALTH OF SHRI VIKAS PARDESI DETE RIORATED AND THEREAFTER ON 31 ST MARCH 2018 HE DIED. IT WAS SUBMITTED THAT THE ASSESSEE WAS UNDER BONA FIDE BELIEF THAT THE APPEAL WOULD HAVE BEEN FILED BY HIS COUNSEL. HOWEVER IT WAS ONLY IN J ANUARY 2019 WHEN NOTICES WERE ISSUED BY THE INCOME TAX DEPARTMEN T FOR RECOVERY OF OUTSTANDING DEMAND THAT THE ASSESSEE CA ME TO KNOW THAT SHRI VIKAS PARDESI HAD UNFORTUNATELY DIED BEFO RE FILING OF THE APPEAL. THEREAFTER IN MARCH 2019 THE ASSESSEE EN GAGED SERVICES OF ANOTHER COUNSEL IN DEHRADUN AND FILED THE APPEAL AFTER A DELAY OF 8 ITA NO. 2775/DEL/2019 RAVINDER KUMAR WALIA VS. DCIT 358 DAYS. IN LIGHT OF THESE FACTS IT WAS SUBMITTED BY THE LD. AR THAT THERE IS A SUFFICIENT CAUSE AND THAT THE DELAY BE C ONDONED. 4.0 THE LD. SR. DEPARTMENTAL REPRESENTATIVE (DR) ON THE OTHER HAND VEHEMENTLY OPPOSED THE REQUEST M ADE FOR CONDONATION OF DELAY. 5.0 HAVING HEARD BOTH THE PARTIES ON THE ISSUE O F CONDONATION OF DELAY IT IS SEEN THAT IT IS SETTLED LAW THAT THE COURTS AND THE QUASI-JUDICIAL BODIES ARE EMPOWERED TO COND ONE THE DELAY IF THE LITIGANT SATISFIES THE COURT THAT THERE WERE SU FFICIENT REASONS FOR AVAILING THE REMEDY AFTER THE EXPIRY OF THE LIMITAT ION. SUCH REASONING SHOULD BE TO THE SATISFACTION OF THE COUR T. THE EXPRESSION SUFFICIENT CAUSE OR REASON AS PROVIDED IN SUB-SEC TION (5) OF SECTION 253 SUBSECTION (3) SECTION 249 OF THE INCOME TAX A CT 1961 IS USED IN IDENTICAL TERMS IN THE LIMITATION ACT AND THE CI VIL PROCEDURE CODE. SUCH EXPRESSION HAS ALSO BEEN USED IN OTHER S ECTIONS OF THE INCOME TAX ACT SUCH AS SECTIONS 274 273 ETC. THE E XPRESSION SUFFICIENT CAUSE WITHIN THE MEANING OF SECTION 5 O F THE LIMITATION ACT AS WELL AS SIMILAR OTHER PROVISIONS AND THE AMB IT OF EXERCISE OF POWERS THERE UNDER HAVE BEEN THE SUBJECT-MATTER OF CONSIDERATION 9 ITA NO. 2775/DEL/2019 RAVINDER KUMAR WALIA VS. DCIT BEFORE THE HONBLE APEX COURT ON VARIOUS OCCASIONS. IN THE CASE OF STATE OF WEST BENGAL V. ADMINISTRATOR; HOWRAH MUNIC IPALITY AIR 1972 SC 749 THE HONBLE SUPREME COURT WHILE CONSIDERING THE S COPE OF THE EXPRESSION SUFFICIENT CAUSE FOR CONDONATION O F DELAY HAS HELD THAT THE SAID EXPRESSION SHOULD RECEIVE A LIBERAL C ONSTRUCTION SO AS TO ADVANCE SUBSTANTIAL JUSTICE WHEN NO NEGLIGENCE OR INACTION OR WANT OF BONA FIDE IS IMPUTABLE TO THE PARTY. 5.1.0 IN THE CASE OF N. BALAKRISHNAN V. M. KRISHNAMURTHY AIR 1998 SC 3222 THERE WAS A DELAY OF 883 DAYS IN FILING AN APPLICATION FOR SETTING ASIDE THE EX PARTE DECREE FOR WHICH THE APPLICATION FOR CONDONATION OF DELAY WAS FILED. THE TRIAL COURT HAVING FOUND THAT SUFFICIENT CAUSE WAS MADE OUT FOR CONDONATION OF DELAY CONDONED THE DELAY. HOWEVER THE HONBLE COUR T REVERSED THE ORDER OF THE TRIAL COURT. THE HONBLE SUPREME COURT WHILE RESTORING THE ORDER OF THE TRIAL COURT HAS OBSERVED IN PARA 8 9 AND 10 AS UNDER:- 8. THE APPELLANTS CONDUCT DOES NOT ON THE WHOLE W ARRANT TO CASTIGATE HIM AS AN IRRESPONSIBLE LITIGANT. WHAT HE DID IN DEFENDING THE SUIT WAS NOT VERY MUCH FAR FROM WHAT A LITIGANT 10 ITA NO. 2775/DEL/2019 RAVINDER KUMAR WALIA VS. DCIT WOULD BROADLY DO. OF COURSE IT MAY BE SAID THAT HE SHOULD HAVE BEEN MORE VIGILANT BY VISITING HIS ADVOCATE AT SHOR T INTERVALS TO CHECK UP THE PROGRESS OF THE LITIGATION. BUT DURING THESE DAYS WHEN EVERYBODY IS FULLY OCCUPIED WITH HIS OWN AVOCA TION OF LIFE AN OMISSION TO ADOPT SUCH EXTRA VIGILANCE NEED NOT BE USED AS GROUND TO DEPICT HIM AS A LITIGANT NOT AWARE OF HIS RESPONSIBILITIES AND TO VISIT HIM WITH DRASTIC CONS EQUENCES. 9. IT IS AXIOMATIC THAT CONDONATION OF DELAY IS A M ATTER OF DISCRETION OF THE COURT. SECTION 5 OF THE LIMITATIO N ACT DOES NOT SAY THAT SUCH DISCRETION OF THE COURT. SECTION 5 OF THE LIMITATION ACT DOES NOT SAY THAT SUCH DISCRETION CAN BE EXERCI SED ONLY IF THE DELAY IS WITHIN A CERTAIN LIMIT. LENGTH OF DELA Y IS NO MATTER ACCEPTABILITY OF THE EXPLANATION IS THE ONLY CRITER ION. SOMETIMES DELAY OF THE SHORTEST RANGE MAY BE UNCONDEMNABLE DU E TO A WANT OF ACCEPTABLE EXPLANATION WHEREAS IN CERTAIN OTHER CASES DELAY OF A VERY LONG RANGE CAN BE CONDONED AS THE E XPLANATION THEREOF IS SATISFACTORY. ONCE THE COURT ACCEPTS THE EXPLANATION AS SUFFICIENT IT IS THE RESULT OF POSITIVE EXERCIS E OF DISCRETION AND NORMALLY THE SUPERIOR COURT SHOULD NOT DISTURB SUCH FINDING MUCH LESS IN REVISIONAL JURISDICTION UNLESS THE EX ERCISE OF DISCRETION WAS ON WHOLLY UNTENABLE GROUNDS OR ARBIT RARY OR PERVERSE. BUT IT IS A DIFFERENT MATTER WHEN THE FIR ST COURT REFUSES TO CONDONE THE DELAY. IN SUCH CASES THE SUPERIOR C OURT WOULD BE FREE TO CONSIDER THE CAUSE SHOWN FOR THE DELAY AFRE SH AND IN ITS 11 ITA NO. 2775/DEL/2019 RAVINDER KUMAR WALIA VS. DCIT OWN FINDING EVEN UNTRAMMELED BY THE CONCLUSION OF T HE LOWER COURT. 10. THE PRIMARY FUNCTION OF A COURT IS TO ADJUDICATE TH E DISPUTE BETWEEN THE PARTIES AND TO ADVANCE SUBSTANTIAL JUST ICE. THE TIME-LIMIT FIXED FOR APPROACHING THE COURT IN DIFFE RENT SITUATION IS NOT BECAUSE ON THE EXPIRY OF SUCH TIME A BAD CAUSE WOULD TRANSFORM INTO A GOOD CAUSE. 5.1.1 THE HONBLE SUPREME COURT FURTHER OBSERVED THAT RULES OF LIMITATION ARE NOT MEANT TO DESTROY THE RI GHTS OF THE PARTIES. THEY ARE MEANT TO SEE THAT THE PARTIES DO NOT RESOR T TO DILATORY TACTICS BUT SEEK THE REMEDY PROMPTLY. THE HONBLE A PEX COURT FURTHER OBSERVED THAT REFUSAL TO CONDONE THE DELAY WOULD RESULT IN FORECLOSING A SUITOR FROM PUTTING FORTH HIS CAUSE. THERE IS NO PRESUMPTION THAT THE DELAY IN APPROACHING THE COURT IS ALWAYS DELIBERATE. 5.2 THE HONBLE SUPREME COURT IN SLP [CIVIL NO.12 980 OF 1986 DECIDED ON 19 TH FEB. 1987 IN THE CASE OF COLLECTOR LAND 12 ITA NO. 2775/DEL/2019 RAVINDER KUMAR WALIA VS. DCIT ACQUISITION V. MST. KATIJI [1987] 2 SCC 107 HAS LAID DOWN THE FOLLOWING GUIDELINES: 1. ORDINARILY A LITIGANT DOES NOT STAND TO BENEFIT BY LODGING AN APPEAL LATE. 2. REFUSING TO CONDONE DELAY CAN RESULT IN MERITORI OUS MATTER BEING THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTICE BEING DEFEATED. AS AGAINST THIS WHEN DELAY IS CONDO NED THE HIGHEST THEN CAN HAPPEN IS THAT A CAUSE WOULD BE DE CIDED ON MERITS WAFTER HEARING THE PARTIES. 3. EVERY DAYS DELAY MUST BE EXPLAINED DOES NOT M EAN THAT A PEDANTIC APPROACH SHOULD BE MADE WHY NOT EVERY H OURS DELAY EVERY SECONDS DELAY. THE DOCTRINE UST BE AP PLIED ON A RATIONAL COMMONSENSE PRAGMATIC MANNER. 4. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERA TIONS ARE PITTED AGAINST EACH OTHER CAUSE OF SUBSTANTIAL JUS TICE DESERVES TO BE PREFERRED FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON-DELI BERATE 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 N OT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHN ICAL GROUNDS 13 ITA NO. 2775/DEL/2019 RAVINDER KUMAR WALIA VS. DCIT BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO SO. 5.3 IN THE LIGHT OF THE ABOVE CITED JUDGMENTS I F WE EXAMINE THE FACTS OF THE PRESENT CASE IT IS APPARE NT THAT THE ASSESSEE HAS BEEN VIGILANT IN HIS APPROACH AND HAS NOT NEGLECTED THE INCOME TAX PROCEEDINGS. THE HONBLE APEX COURT IN THE CASE OF N. BALAKRISHNAN (SUPRA) HAS OBSERVED THAT THE LENGT H OF DELAY IS IMMATERIAL. THE ACCEPTABILITY OF THE EXPLANATION IS THE ONLY CRITERIA FOR CONDONING THE DELAY. IN A GIVEN CASE DELAY OF THE SHORTEST PERIOD OF TIME MAY BE UN-CONDONABLE DUE TO UNACCEPTABLE EX PLANATION WHEREAS IN CERTAIN OTHER CASES DELAY OF A LONG PERI OD CAN BE CONDONED IF THE EXPLANATION IS SATISFACTORY. IN EVE RY CASE OF DELAY THERE MIGHT BE SOME OMISSIONS OR NEGLIGENCE ON THE PART OF THE ASSESSEE BUT TO OUR MIND SUCH OMISSION/NEGLIGENCE H AS TO BE WEIGHED IN LIGHT OF FACTS AND CIRCUMSTANCES OF EACH CASE. IF THE NEGLIGENCE OR OMISSION IS A BY-PRODUCT OF A DELIBER ATE ATTEMPT WITH MALA FIDE INTENTION FOR DELAYING THE PROCESS OF LITIGATION WH ICH COULD GIVE SOME BENEFIT TO THE LITIGANT THEN PROBABLY TH E DELAY WOULD NOT DESERVE TO BE CONDONED. HOWEVER IF NO MALA FIDE CAN BE ATTRIBUTED 14 ITA NO. 2775/DEL/2019 RAVINDER KUMAR WALIA VS. DCIT TO THE DELAY THE DELAY WILL BE CONDONABLE. THEREFOR E ON THE FACTS OF THE PRESENT CASE WE ARE OF THE CONSIDERED OPINION T HAT THE ASSESSEE HAS BEEN ABLE TO DEMONSTRATE SUFFICIENT REASONS IN THE SHAPE OF DEATH OF THE COUNSEL FOR FILING AN APPEAL BEFORE T HE TRIBUNAL. THEREFORE WE DEEM IT FIT TO CONDONE THE DELAY AND ADMIT THE APPEAL. 6.0 NOW COMING TO THE MERITS OF THE APPEAL IT WAS SUBMITTED BY THE LD. AR THAT THE LD. CIT (A) HAS DI SPOSED OFF THE APPEAL WITHOUT GRANTING A PROPER OPPORTUNITY OF BEIN G HEARD. IN THIS REGARD IT WAS SUBMITTED BY THE LD. AR THAT THE APPE AL BEFORE FIRST APPELLATE AUTHORITY WAS FILED ON 14 TH AUGUST 2017. WHEN THE DATE OF HEARING WAS SCHEDULED ON 6 TH DECEMBER 2017 THE ASSESSEES COUNSEL REQUESTED FOR ADJOURNMENT AS HE WAS IN PROCE SS OF COLLECTING NECESSARY DOCUMENTS FROM THE ASSESSEE. I N THIS REGARD THE LD. AR INVITED OUR ATTENTION TO THE COPY OF LET TER DATED 6 TH DECEMBER 2007 FILED BY THE ASSESSEE BEFORE THE LD. CIT (A) WHEREIN IT WAS SUBMITTED AS UNDER: IT IS MOST RESPECTFULLY SUBMITTED THAT THE UNDER SI GNATORY IS NOT POSITION TO PREPARE AND SOUGHT OUT THE RELEVANT DOC UMENTS FOR PREPARATION OF SUBMISSION BUT SOME READINGS WERE MA DE AND 15 ITA NO. 2775/DEL/2019 RAVINDER KUMAR WALIA VS. DCIT ON THE BASIS OF THAT THE FOLLOWING SUBMISSION IS NA RRATED HERETOFORE FOR YOUR KIND PERUSAL. 2. THAT THE SOME RELEVANT DOCUMENTS IS STILL AWAITE D FROM PREVIOUS COUNSEL CA. THE UNDER SIGNATORY PERSONALL Y VISITED THE PREVIOUS COUNSEL OFFICE AND ASK SOME RELEVANT Q UESTIONNAIRS BUT HE WAS NOT IN OFFICE THAT DATE AND EVEN AFTER I ASKED THE QUESTIONS ABOUT THE CASE BUT THEY SIMPLY TOLD THAT MR. ANIL KUMAR VERMA CAN SAY ABOUT THE SAME THEN I PHONED HI M AND ASKED THE SAME BUT HE SIMPLY SAY THE PARTIES TOOK T HE FILES FROM ME THEN I ASKED SOME PAPERS ARE MISSING THEN HE TOL D ME TO OBTAIN FROM DEPARTMENT FILE. UNDER THESE CIRCUMSTANCES OF THE CASE THE APPELLAN T NEED SOME TIME FOR COLLECTING THE RELEVANT INFORMATION FROM D EPARTMENTAL FILE. HENCE IT IS NECESSARY GIVING AN OPPORTUNITY T O PREPARE THE PROPER REPLY ON THE ADDITIONS AND ISSUES WERE RAISE D IN THE ASSESSMENT ORDER IN THE INTEREST OF NATURE JUSTICE. 3. THAT THE RESPONDENT DID NOT KNOWLEDGE OF THIS TY PE BUSINESS HENCE HE HAS ASSUMED HIS OWN INTEREST OF P ROMOTION BECAUSE THE APPELLANT SUBMITTED THE CONFIRMATION OF RESPECTIVE PARTIES BUT THE RESPONDENTS NOTICES WERE COME BACK WITHOUT DELIVERY THEN IT IS NOT PRESUMED THAT THE APPELLANT S RECORDS ARE FALSE. HENCE IT IS NECESSARY TO CALL THE RECORDS FR OM THE RESPONDENT. 16 ITA NO. 2775/DEL/2019 RAVINDER KUMAR WALIA VS. DCIT 4. THAT THE REJECTION OF ACCOUNT IS ALSO ILLEGALLY ESTABLISHED WITHOUT ANY EVIDENCE. 5. THAT IT IS FURTHER SUBMITTED THAT THE CASE WAS I LLEGALLY ESTABLISHED IN EYE OF LAW. HENCE THE APPELLANT HAS APPLIED THE CERTIFIED COPY OF THE ORDER SHEET OF THE CASE. THE COPY OF THE SAME IS BEING ANNEXED HERETO. UNDER THESE CIRCUMSTANCES OF THE CASE IT IS HIGHLY REQUESTED TO KINDLY GIVE ONE MORE OPPORTUNITY TO FILE THE RELEVA NT FACTS OF THE CASE WHICH CAN BE SHOWN THIS CASE IS COMPLETELY ILL EGALLY ESTABLISHED. 6.1 IT WAS SUBMITTED BY THE LD. AR THAT POST FILING OF ADJOURNMENT APPLICATION DATED 6 TH DECEMBER 2017 THE LD. CIT (A) TREATED THE MATTER AS HEARD. IT WAS SUBMITTED TH AT THEREAFTER THE LD. CIT (A) DISPOSED OFF THE APPEAL VIDE ORDER DATED 7 TH FEBRUARY 2018 AND EVEN IN THE INTERVENING PERIOD NO FURTHER OPPORTUNITY WAS PROVIDED. 7.0 THE LD. SR. DR SUPPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT (A). IT WAS SUBMITTED BY HIM T HAT THE LD. CIT (A) HAD GIVEN A PROPER HEARING AND THAT HIS ORDER S HOULD BE UPHELD. 8.0 WE HAVE CAREFULLY CONSIDERED THE FACTS OF TH E CASE AND THE MATERIAL AVAILABLE ON RECORD. A MERE P ERUSAL OF THE 17 ITA NO. 2775/DEL/2019 RAVINDER KUMAR WALIA VS. DCIT IMPUGNED ORDER SHOWS THAT THE LD. CIT (A) HAS REPROD UCED THE ADJOURNMENT REQUEST MADE BY THE ASSESSEE VIDE LETTE R DATED 6 TH DECEMBER 2017 AT PAGES 24 TO 26 OF THE IMPUGNED OR DER. THEREAFTER THE LD. CIT (A) HAS STRAIGHT AWAY DECIDE D TO ADJUDICATE UPON THE MERITS OF THE APPEAL WITHOUT GIVING ANY REA SONING AS TO WHY THE ADJOURNMENT REQUEST IS DENIED. IT WOULD BE RE LEVANT TO NOTE THAT THERE IS NO WHISPER IN THE ENTIRE IMPUGNED ORDE R THAT THE ASSESSEE HAD INTENTIONALLY DELAYED THE FIRST APPELL ATE PROCEEDINGS. IN OUR CONSIDERED OPINION IT WOULD BE IN THE FITNE SS OF THINGS IF THE MATTER IS SET ASIDE TO THE RECORDS OF THE LD. CIT ( A) FOR A FRESH ADJUDICATION IN ACCORDANCE WITH LAW. WE THEREFORE R ESTORE THE APPEAL TO THE OFFICE OF THE LD. CIT (A) FOR DE NOVO ADJUDICATION AFTER PROVIDING AN OPPORTUNITY OF BEING HEARD TO THE ASSE SSEE. THE ASSESSEE IS DIRECTED TO PARTICIPATE IN AN EARLY DIS POSAL OF THE APPEAL AND NOT TO SEEK ANY UNNECESSARY ADJOURNMENT. TO CUT SHORT ANY FURTHER DELAY THE ASSESSEE IS DIRECTED TO FILE HIS SUBMISSIONS ON MERITS BEFORE LD. CIT (A) ON OR BEFORE 30 TH JUNE 2021. 18 ITA NO. 2775/DEL/2019 RAVINDER KUMAR WALIA VS. DCIT 9.0 IN THE FINAL RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 31/0 5/2021. SD/- SD/- (PRASHANT MAHARISHI) (SUDHANSHU SRIVASTAVA ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 31/05/2021 *DRAGON* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI (DEHRADUN CIRCUIT BENCH DEHRADUN)