Assessee would not gain anything by not filing the appeals in time, therefore we condone delay: ITAT

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ITA.No.201 to 203/Ahd/2020

Shardaben Shankerji Thakore Vs ITO, Ward-3(3)(5)

(Applicant) (Respondent)

Brief facts of the case :

The appeals filed by the assessee are time barred by 282 days. In order to explain the delay the assessee has filed application for condonation of delay in the form of affidavit. In the affidavit, the assessee has explained the reasons for the delay. The relevant part of the affidavit reads as under:

"I say and submit that I have entrusted the matter for filing of appeals against this order to my the-then Chartered Accountant, who was handling the accounts of my business since last many years. I was under the impression that he will handle the same with due care and diligence. However, when I inquired with him regarding the status of my accounts and appeals, I was shocked and surprised to know that the appeal has not been filed yet due to his negligence towards the same. I say and submit that due to ITA No.201, 202 and 203/Ahd/2020 such careless attitude shown by him, I was left with no other option but to remove him from the said responsibility of managing accounts and filing of appeal. More so, due to the negligence on the part of my Chartered Accountant, some relevant documents were misplaced. Therefore, it took us time to gather all the relevant documents and hand it over to our subsequent Chartered Accountant"

Opposition by Respondent :

There is no material possessed by the assessee to substantiate this assertion of the facts. He has not deposed the name of the tax consultant, while leveling allegations against the said tax consultant, and therefore, submissions of the assessee for the condonation of delay in filing appeals before the Tribunal merit no consideration.

Findings by Hond. ITAT-Ahmedabad :

We have duly considered rival contentions and gone through the record carefully. Sub-section 5 of Section 253 contemplates that the Tribunal may admit an appeal or permit filing of memorandum of cross-objections after expiry of relevant period, if it is satisfied that there was sufficient cause for ITA No.201, 202 and 203/Ahd/2020 not presenting it within that period. Similarly, it has been used in section 5 of Indian Limitation Act, 1963. Whenever interpretation and construction of this expression has fallen for consideration before Hon'ble High Court as well as before the Hon'ble Supreme Court, then, Hon'ble Court were unanimous in their conclusion that this expression is to be used liberally.

Reference :

We may make reference to the following observations of the Hon'ble Supreme court from the decision in the case of Collector Land Acquisition Vs. Mst. Katiji & Others, 1987 AIR 1353:

"1. 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."

ITA No.201, 202 and 203/Ahd/2020

Similarly, we would like to make reference to authoritative pronouncement of Hon'ble Supreme Court in the case of N.Balakrishnan Vs. M. Krishnamurthy (supra). It reads as under:

"Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is or the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

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 lain Vs. Kuntal Kumari [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 mack 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 Could 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 ITA No.201, 202 and 203/Ahd/2020 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."

We do not deem it necessary to re-cite or recapitulate the proposition laid down in other decisions. It is suffice to say that the Hon'ble Courts are unanimous in their approach to propound that whenever the reasons assigned by an applicant for explaining the delay, then such reasons are to be construed with a justice oriented approach.

Conclusion :

In the light of the above, if we examine the explanation given by the assessee, then it would reveal that the appeals could not be filed in time on account of lapses on the part of Chartered Accountant of the assessee in filing the appeal before the Tribunal on time. Though, we do not have any material to verify this pleadings, but considering the facts that the assessee would not gain anything by not filing the appeals in time, therefore, in the interest of substantial justice, we condone the delay and proceed to decided the appeals on merit.