Income Tax Appellate Tribunal - Bangalore
Abdul Azeem Telgi, Belgaum vs Assessee on 22 December, 2010
Page 9 of 9 9 ITA Nos.1062 to 1067/Bang/2009
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
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 22nd 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/21/12. Assistant Registrar, ITAT, Bangalore.
Page 8 of 9 8 ITA Nos.1062 to 1067/Bang/2009
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 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
Page 7 of 9 7 ITA Nos.1062 to 1067/Bang/2009
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.
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 on principle
as it is realized that:
Page 6 of 9 6 ITA Nos.1062 to 1067/Bang/2009
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).
10. We have heard the rival submission and perused the
material on record. The penalty orders were passed for all the asst.
years 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
Page 5 of 9 5 ITA Nos.1062 to 1067/Bang/2009
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 1997-98 AY 1998-99 AY 1999-00 AY 2000-01 AY 2001-02
62 months 37 months 37 months 37 months 62 months 62 months
8 days 21 days 21 days 21 days 8 days 8 days
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
Page 4 of 9 4 ITA Nos.1062 to 1067/Bang/2009
the delay in filing these appeals and proceed to dispose of the matter
on merits.
4. The brief facts of the case are as follows:-
The assessee is an individual. He was arrested in Fake
Stamp Paper Scam. Since the assessee did not furnish the return of
income in response to the notice u/s 148 nor furnished the details
called for pursuant to notice u/s 142(1), the assessee was show-
caused as to why penalty u/s 271(1)(b) should not be levied. The
assessee replied that he was lodged in Central Prison, Pune as an
under-trial prisoner since July, 2003 in connection with the fake
stamp paper scam and he was unable to access the documents required
for furnishing of particulars. It was submitted that he did not have
the proper facility to consult a Chartered Accountant in response to
the notices and hence, non-compliance with the notices were not
intentional and requested for dropping the levy of penalty u/s
271(1)(b).
4.1 The Assessing Officer, however, brushed aside the
objections raised by the assessee and imposed a penalty u/s 271(1)(b)
of the Act amounting to Rs.10,000/- in each of the asst. years
concerned.
5. Aggrieved by the imposition of penalty, the assessee has
preferred appeals before the first appellate authority.
Page 3 of 9 3 ITA Nos.1062 to 1067/Bang/2009
10. the Commissioner of Income-tax (Appeals) VI,
Bangalore by his letter dated 23.10.2009 informed me
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
Page 2 of 9 2 ITA Nos.1062 to 1067/Bang/2009
that the appeals were posted before the CIT(A) for hearing on
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;
Page 1 of 9 1 ITA Nos.1062 to 1067/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.1062 to 1067/Bang/2009
(Asst. years 1996-97 to 2001-02)
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 2001-02. The order of the CIT(A) arise out of different orders passed by the Assistant Commissioner of Income-tax, imposing penalty u/s 271(1)(b) 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