Ganges Commercial Company (P) Ltd., Kolkata v. I.T.O., Ward -6(2), Kolkata, Kolkata

ITA 437/KOL/2010 | 2003-2004
Pronouncement Date: 18-05-2010

Appeal Details

RSA Number 43723514 RSA 2010
Assessee PAN AABCG3232E
Bench Kolkata
Appeal Number ITA 437/KOL/2010
Duration Of Justice 2 month(s) 22 day(s)
Appellant Ganges Commercial Company (P) Ltd., Kolkata
Respondent I.T.O., Ward -6(2), Kolkata, Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 18-05-2010
Appeal Filed By Assessee
Bench Allotted SMC
Tribunal Order Date 18-05-2010
Assessment Year 2003-2004
Appeal Filed On 26-02-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : KOLKATA [BEFORE HONBLE SRI D. K. TYAGI JM & HONBLE SRI B . C. MEENA AM] I.T.A. NO.437/KOL/2010 ASSESSMENT YEAR: 2003-04 GANGES COMMERCIAL COMPANY (P) LTD. -VS- INCOME-TA X OFFICER WD-6(2) KOLKATA (PA NO.AABCG 3232 E) (APPELLANT) (RESPONDENT) APPELLANT BY : SRI A. K. TIBREWAL RESPONDENT BY : SRI O. P. AGARWAL O R D E R PER D. K. TYAGI JM: THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER OF THE LD. CIT(A) KOLKATA DATED 18.01.2010 FOR ASSESSMENT YEA R 2003-04. THE FIRST TWO GROUNDS READ AS UNDER : 1. THAT THE LD. CIT(A) ERRED IN REJECTING THE APPE LLANTS PLEA FOR CONDONATION OF DELAY IN FILING THE APPEAL BEFORE HIM BY HOLDING THAT THE APPELLANT WAS NOT PREVENTED BY SUFFICIENT CAUSE TO FILE APPEAL IN TIM E. 2. WITHOUT PREJUDICE THAT THE LD. CIT(A) ERRED IN NOT ADJUDICATING UPON THE GROUNDS OF APPEAL TAKEN BEFORE HIM WHICH WERE RELAT ED TO THE MERIT OF THE CASE. 2. THE ASSESSEE IS AGITATING AGAINST THE ACTION OF THE LD. CIT(A) IN REJECTING THE ASSESSEES PLEA FOR CONDONATION OF DELAY IN FILING THE APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) HELD THAT EXPLANATION GIVEN BY THE A SSESSEE DOES NOT JUSTIFY THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE TO FILE THE APPEAL IN THE GIVEN TIME AND HE DID NOT ACCEPT THE ASSESSEES EXPLANATION AND CONSEQUEN TLY HE DID NOT ADJUDICATE ANY OF THE GROUNDS OF APPEAL OF THE ASSESSEE. AGGRIEVED BY THE SAID ORDER NOW THE ASSESSEE IS IN APPEAL BEFORE US. 3. AT THE TIME OF HEARING BEFORE US THE LD. COUNSE L FOR THE ASSESSEE WHILE REITERATING HIS SAME SUBMISSIONS AS SUBMITTED BEFOR E THE LD. CIT(A) FURTHER PLACED RELIANCE ON THE FOLLOWING CASE LAWS FOR CONDONATION OF DELAY: 2 I) N. BALAKRISHNAN VS. M. KRISHNAMURTHY (1998) AIR (SC) 3222 II) COLLECTOR LAND ACQUISITION ANANTNAG & ANR. VS . MST. KATIJI & ORS. (1987) 167 ITR 471 (SC) III) BHILAI ENGINEERIG CORPORATION LTD. VS. DCIT (2 002) 81 ITD 282 IV) ORACLE INDIA (P) LTD. VS. DCIT (2008) 118 TTJ 8 12 HE LASTLY PRAYED THAT THE DELAY IN FILING THE APPEA L BEFORE THE LD. CIT(A) MAY KINDLY BE CONDONED AND HE SHOULD BE DIRECTED TO DEC IDE THE MATTER ON MERITS. 4. ON THE OTHER HAND THE LD. DR RELIED ON THE ORDE R OF THE LD. CIT(A) AND URGED BEFORE THE BENCH TO CONFIRM THE SAME. 5. AFTER HEARING THE RIVAL SUBMISSIONS CAREFULLY P ERUSING THE MATERIAL AVAILABLE ON RECORD AND THE CASE LAWS CITED BY THE LD. COUNSEL F OR THE ASSESSEE WE FIND THAT THE HONBLE SUPREME COURT IN THE CASE OF N. BALAKRISHN AN VS. M. KRISHNAMURTHY REPORTED IN (1998) AIR (SC) 3222 HAS HELD AS UNDER : 12. A COURT KNOWS THAT REFUSAL TO CONDONE DELAY WO ULD RESULT IN FORECLOSING A SUITOR FROM PUTTING FORTH HIS CAUSE. THERE IS NO PRESUMPTI ON THAT DELAY IN APPROACHING THE COURT IS ALWAYS DELIBERATE. THIS COURT HAS HELD THA T THE WORDS SUFFICIENT CAUSE UNDER SECTION 5 OF THE LIMITATION ACT SHOULD RECEIVE A LI BERAL CONSTRUCTION SO AS TO ADVANCE SUBSTANTIAL JUSTICE VIDE SHAKUNTALA DEVI JAM V. KUN TAL KUMARI (AIR 1969 SC 575 : (1969) 1 SCR 1006) AND STATE OF WB. V. ADMINISTRATO R HOWRAH MUNICIPALITY ((1972) 1 SCC 366: AIR 1972 SC 749). 13. IT MUST BE REMEMBERED THAT IN EVERY CASE OF DEL AY THERE CAN BE SOME LAPSE ON THE PART OF THE LITIGANT CONCERNED. THAT ALONE IS NOT E NOUGH 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 THIN K THAT THE DELAY WAS OCCASIONED BY THE PARTY DELIBERATELY TO GAIN TIME THEN THE COURT SHOULD LEAN AGAINST ACCEPTANCE OF THE EXPLANATION. WHILE CONDONING THE DELAY THE COURT S HOULD NOT FORGET THE OPPOSITE PARTY ALTOGETHER. IT MUST BE BORNE IN MIND THAT HE IS A L OSER AND HE TOO WOULD HAVE INCURRED QUITE LARGE LITIGATION EXPENSES. IT WOULD BE A SALU TARY 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. WE ALSO FIND THAT THE HONBLE SUPREME COURT IN THE CASE OF COLLECTOR LAND ACQUISITION ANANTNAG & ANR. VS. MST. KATIJI & ORS. (1987) 167 ITR 471 (SC) HAS HELD AS UNDER : 4. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDE RATIONS ARE PITTED AGAINST EACH OTHER CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO B E PREFERRED FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON-DELIBERATE DELAY. 3 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 TECHNICAL GROUNDS BUT BECAUSE IT IS CA PABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. MAKING A JUSTICE ORIENTED APPROACH FROM THIS PERSPE CTIVE THERE WAS SUFFICIENT CAUSE FOR CONDONING THE DELAY IN THE INSTITUTION OF THE APPEA L. . IN VIEW OF THE ABOVE WE ARE OF THE CONSIDERED OPIN ION THAT THE DELAY IN FILING THE APPEAL BY THE ASSESSEE BEFORE THE FIRST APPELLATE A UTHORITY DESERVES TO BE CONDONED AND THE LD. CIT(A) IS DIRECTED TO DECIDE THE APPEAL OF THE ASSESSEE ON MERITS. THE APPEAL OF THE ASSESSEE IS THEREFORE ALLOWED. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS AL LOWED AS INDICATED ABOVE. 7. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 18. 5.10 SD/- SD/- (B. C. MEENA) (D. K. TYAGI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 18TH MAY 2010 COPY TO : 1. GANGES COMMERCIAL CO. (P) LTD. 14 NETAJI SUBHAS R OAD 3 RD FLOOR KOLKATA-1. 2. AITO WARD-6(2) KOLKATA. 3. CIT(A) KOLKATA. 4. CIT KOLKATA. 5. D.R. ITAT KOLKATA. TRUE COPY BY ORDER DEPUTY REGISTRAR JD.(SR.P.S.) I.T.AT. KOLKATA