Income Tax Appellate Tribunal - Bangalore
Abdul Azeem Telgi, Belgaum vs Assessee on 13 March, 2009
Page 1 of 9 1 ITA Nos.1048 to 1054/Bang/2009
THE INCOME TAX APPELLATE TRIBUNAL,
BANGALORE BENCH 'B'
BEFORE SHRI GEORGE GEORGE K, J.M. AND
SHRI A MOHAN ALANKAMONY, A.M.
ITA Nos.1048 to 1054/Bang/2009
(Asst. years 1996-97 to 2002-03)
Shri Abdul Azeem Telgi,
No.1461, Vidyanagar,
Khanapur-591 302
District Belgaum. - Appellant
vs
The Assistant Commissioner of Income-tax,
Central Circle-(1), Bangalore. - Respondent
Appellant by : Shri K Y Ningoji Rao, C.A.
Respondent by : Shri Ganesh Rao, Addl. CIT
ORDER
PER BENCH :
The assessee has filed these appeals against the consolidated order of the CIT(A)-VI, Bangalore dated 13.3.2009. The relevant asst. years are 1996-97 to 2002-03. The order of the CIT(A) arise out of assessment orders passed by the Assistant Commissioner of Income-tax, Central Circle-1(1), Bangalore u/s 144 rws 147 of the Act.
2. There is a delay of 184 days in filing these appeals. The assessee has filed applications for condonation of delay and also a supporting affidavit. The reason stated in the condonation petition is that the appeals were posted before the CIT(A) for hearing on Page 2 of 9 2 ITA Nos.1048 to 1054/Bang/2009 12.3.2009 and since the assessee's authorized representative could not appear before the CIT(A) on 12.3.2009, an adjournment letter was filed before the CIT(A). However, the CIT(A) rejected the adjournment applications and order was passed on 13.3.2009. The assessee was not aware of CIT(A) passing the order, as the appellate order was not served on him. The assessee made enquiries with the office of the Commissioner on 17.10.2009 and he was informed that the appeals were disposed off long ago. Thereafter, the assessee requested for copies of the appellate order and on receipt of the same on 9.11.2009, immediately the appeals were filed on 11th November, 2009.
2.1 The relevant portion of the assessee's affidavit filed along with the condonation petition reads as follows:-
8. the said appeals were posted for hearing on 12.3.2009 and I had filed my written submissions seeking condoning the delay and as my authorized representative from Belgaum could not cause his appearance before the CIT(Appeals)-VI, Bangalore on that day I also had sought adjournment of the hearing of the said appeals;
9. however, as there was no communication thereafter from the Appellate Commissioner, I by my letter dated 17.10.2009 had sought to seek the date of hearing and as I was told that the said appeals were disposed off long ago, by my letter dated 21.10.2009 I requested the CIT(Appeals) to furnish copy of the Appellate Orders;
10. the Commissioner of Income-tax (Appeals) VI, Bangalore by his letter dated 23.10.2009 informed me Page 3 of 9 3 ITA Nos.1048 to 1054/Bang/2009 that the orders in the said appeals were passed on 13.3.2009 and were dispatched by EMS Speed Post vide EK Nos.34392407, 3392408 and 34392409 on the address mentioned and if I desire copies of the said order, the same may be obtained from the Assessing Officer to whom a copy of the said order has been sent;
11. accordingly by my letter dated 24.10.2009 I requested the Assessing Officer to furnish copy of the said Appellate Order and obtained the same on 9th November, 2009;
12. the Commissioner of Income-tax (Appeals) VI,Bangalore by his consolidated order dated 13.3.2009 bearing ITA No.179 to 184/ACIT-CC-
1(1)/BLR/CIT(A)-VI/2008-09 did not condoned the delay u/s 249(3) and dismissed the said appeals. The copy of the said appellate order is filed with the accompanying appeals in Form 36;
13. since the said levy of penalty has not so far been considered by any appellate authority on merits, I have filed the said appeals now before the Hon'ble Appellate Tribunal, challenging the said levy of penalty on merits; and
14. in case the said appeals are to be considered as belated, for any reason whatsoever, it is urged that in view of the aforesaid facts and circumstances, the said appeals could not have been filed by me within the time specified u/s 253(3) of the IT Act and as such the delay is caused due to the aforesaid reasons which constitutes reasonable causes and hence the said delay is liable to the condoned.
3. We are satisfied with the above reasons mentioned for condoning the delay in filing the appeals before us. Hence, we condone the delay in filing these appeals and proceed to dispose of the matter on merits.
Page 4 of 9 4 ITA Nos.1048 to 1054/Bang/2009
4. The brief facts of the case are as follows:-
The assessee is an individual. He was arrested in Fake Stamp Paper Scam. Assessments were completed u/s 144 r.w.s. 147 determining the total income for all the asst. years concerned. The details of the income assessed, the tax demanded, the interest demanded and the total amount demanded are as follows:-
Asst. years Income Tax Interests Total amount Assessed Demanded Demanded Demanded 1996-97 3,00,000 94,000 2,79,650 3,73,650 1997-98 8,61,000 3,17,400 8,72,531 11,89,931 1998-99 5,06,723 1,27,016 2,89,717 4,16,733 1999-2000 4,26,850 1,02,055 1,82,197 2,84,252 2000-2001 3,00,000 64,000 75,360 1,39,360 2001-2002 3,00,000 64,000 50,880 1,14,880 2002-2003 15,25,360 4,40,240 3,52,740 7,92,980 Total 42,19,933 12,08,711 21,03,075 33,11,786
5. Aggrieved by the assessments completed, the assessee has preferred appeals before the first appellate authority.
6. Appeals were belatedly filed before the first appellate authority and the delay in filing appeals before the CIT(A) are as follows:-
AY 1996-97 AY 1997- AY 1998- AY 1999- AY 2000- AY 2001- AY 2002- 98 99 2000 2001 2002 2003 55 months 43 months 43 months 43 months 55 months 55 months 43 months 27 days 22 days 22 days 22 days 27 days 27 days 22 days Page 5 of 9 5 ITA Nos.1048 to 1054/Bang/2009 6.1 Appeals before the first appellate authority were fixed for hearing on 12.3.2009, on that date, the assessee sought for adjournment. The CIT(A), however, rejected the adjournment application and proceeded to dispose of the appeals since according to the CIT(A), the case was specifically fixed for hearing on 12.3.2009 and the assessee was intimated of the same. The CIT(A) was of the view that there was inordinate delay in filing the appeals before him and there is no "sufficient cause" mentioned for condoning the delay stating so, he dismissed the appeals on the ground of limitation, without going into the issue on merits.
7. Aggrieved by the CIT(A)'s order in dismissing the appeals on the ground of limitation, the assessee is in appeal before us.
8. The learned counsel for the assessee reiterated the submissions made before the authorities below. It was further submitted that in identical situation, in assessee's brother's case, the CIT(A) had dismissed the appeal on the ground of limitation.
However, on further appeal to the Tribunal, the matter was remitted back to the CIT(A) for consideration of the issue on merits. It was submitted that the assessee's brother is the main accused in the fake stamp paper scam.
9. The learned DR, on the other hand, supported the impugned order of the CIT(A).
Page 6 of 9 6 ITA Nos.1048 to 1054/Bang/2009
10. We have heard the rival submission and perused the material on record. All the assessment orders were passed when the assessee was in prison. It is an undisputed fact that the assessee was arrested and put in prison from 3/6/2003 until 29/7/2008. The assessee was taken into custody by the police for alleged fake stamp racket. The assessee's involvement in the alleged fake stamp paper case spread over to 12 States of India. Various cases have been registered against him in different States and the respective investigative agencies were carrying out their investigation. Quite frequently, the assessee had to be taken to relevant courts spread over to 12 States for appearance before Judicial Forum either for extending the remand of judicial custody or for trial. Under this turmoil, the assessee was not in a position to get the details and proper advice to file the appeals before the first appellate authority. After his release from the prison, the assessee gathered all the papers and also raised money required for payment of appeal fees and the counsel fees and thereafter, filed the appeals before the CIT(A) within five months from the date of his release. Under the facts and circumstances, we are of the view that there is "sufficient cause"
for delay in filing appeals before the CIT(A) . 10.1 Moreover, in assessee's brother's case, under similar circumstances, appeal was dismissed by the CIT(A) on the ground of limitation. On further appeal before the Tribunal (ITA No.1138 to 1142/Bang/2007 dated 17.10.2008), the matter was restored to the CIT(A) for consideration of the issue on merits. Page 7 of 9 7 ITA Nos.1048 to 1054/Bang/2009 10.2 Dealing with the condonation of delay u/s 5 of the Limitation Act, 1963, the Supreme Court, in Collector, Land Acquisition v Mst. Katiji (1987) 167 ITR 471, 472-73 (SC), has laid down as under:-
"The Legislature has conferred the power to condone delay by enacting section 5 of the Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on "merits". The expression "sufficient cause" employed by the Legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice - that being the life purpose of the existence of the institution of court. It is common knowledge that this court has been making justifiably liberal approach in matters instituted in this court. But the message does not appear to have percolated down to all the other courts in the hierarchy.
And such a liberal approach is adopted onprinciple as it is realized that:
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 Page 8 of 9 8 ITA Nos.1048 to 1054/Bang/2009 delay? The doctrine must be applied in a rational, common sense and pragmatic manner.
4. When substantial justice and technical considerations 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 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 the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the "State" which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an evenhanded manner. There is no warrant for according a step-motherly treatment when the "State" is the applicant praying for condonation of delay".
10.3 Therefore, considering all these, we allow the appeals of the assessee on the issue of condoning the delay in filing the appeals before the CIT(A) and remand the same to the CIT(A) for fresh Page 9 of 9 9 ITA Nos.1048 to 1054/Bang/2009 consideration on merits. The CIT(A) will decide the issue after giving adequate and reasonable opportunity to the assessee. The CIT(A) will also call for a remand report from the Assessing Officer with necessary details and materials.
11. In the result, the appeals filed by the assessee are allowed for statistical purposes only to the extent stated above. The order pronounced on the 23rd day of December, 2010 at Bangalore.
Sd/- Sd/-
(A MOHAN ALANKAMONY) (GEORGE GEORGE K)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Copy to :- 1. The Assessee 2. The Revenue 3. The CIT(A)
concerned. 4. The CIT, concerned. 5. The DR 6. GF
By Order
MSP/22/12. Assistant Registrar, ITAT, Bangalore.