Itxa/1073/2017 Of Shaan Apartment C.h.s. Ltd v. The Dy. Commissioner Of Income-Tax, Range-1(3)(2)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDITION INCOME TAX APPEAL NO.1073 OF 2017 WITHNOTICE OF MOTION NO.1231 OF 2017IN INCOME TAX APPEAL NO.1073 OF 2017 Shaan Apartment C.H.S. Ltd. ...Applicant/AppellantV/s.The Deputy Commissioner ofIncome Tax, Range 1(3)(2) ...Respondent ..... Mr.Joel D'souza i/by Mr.R.M.Vanoo, Advocate for theApplicant/Original Appellant. Mr.Tejveer Singh, Advocate for the Respondent. .... CORAM :S.V.GANGAPURWALA &A.M.BADAR JJ. DATED :24[th] July 2017. P.C. 1This Appeal pertains to the Assessment Years 2008-09.The present Appeal is filed against the Order dated 26[th] April2017. 2The learned counsel for the Appellant strenuouslycontended that the grounds which were raised by the present Appellant in the Application for condonation and the affidavit filedhave not at all been considered by the Tribunal. The Tribunal hasdismissed the Appeal on the premise that the delay is of 300 daysand the same has not been properly explained. According to thelearned counsel, the office of the Tribunal itself has raised anobjection that the delay is of 249 days. According to the learnedcounsel the expression 'sufficient cause” has to be liberallyconstrued. The learned counsel submits that in the affidavit thereasons were given by the present Appellant. The Appellant is aSociety. After receiving the Order under Section 263 of the Act,the affiant visited the office of the Income-Tax Officer. Appellantnot guided about remedy of the Appeal. The Society isprosecuting for the rights of and on behalf of the members. Thedelay caused is not intentional one. 3Mr.Singh, the learned counsel for the Revenue submitsthat the Tribunal has considered the grounds raised by the presentAppellant. Ignorance of law would not be an excuse forcondonation of delay. According to the learned counsel, theapproach of the Appellant is casual and such a casual approachcannot come within the meaning of expression 'sufficient cause'.The Tribunal has rightly considered the same. 4We have considered the submissions canvassed by thelearned counsel for the respective parties. 5The right of Appeal is a statuary right. Of course, thelitigant has to be diligent. The Appellant herein is a Societynaturally acting for and on behalf of the members. The affidavithas been filed by the Appellant thereby accepting that it hadreceived the notice under Section 263 of the Income-Tax Act on18/03/2014 and had been to the Income-Tax Officer and it wasrepresented to it that the assessment would be taken up by thelater date. The affiant of the said affidavit further states that hewas not aware that the Appeal could be filed. The Societyemployed the Charted Accountant on 28[th] January 2015 andbecause of which the delay has been caused. 6It does not appear that the Appellant would stand togain by delay. It is trite that when the cause for substantial justiceand technical consideration are pitted against each other, cause forsubstantial justice has to be sub-served. As it is found that theAppellant was not to gain by delay and for the reasons stated inthe affidavit, we are inclined to exercise our discretion in favour ofthe Appellant and condone the delay. However, the Appellant alsodeserves to be mulct with cost for delay that has been caused. Inthe result, we pass the following order. (i)The impugned order is quashed and set aside oncondition that the Appellant deposit cost ofRs.20000/- with the Tribunal on or before 21[st]August 2017.condition that the Appellant deposit cost ofRs.20000/- with the Tribunal on or before 21[st]August 2017. (ii) On deposit of said cost within the period asstipulated above, the Tribunal shall proceed anddecide the Appeal on merits after hearing all theparties concerned.stipulated above, the Tribunal shall proceed anddecide the Appeal on merits after hearing all theparties concerned. (i)The impugned order is quashed and set aside oncondition that the Appellant deposit cost ofRs.20000/- with the Tribunal on or before 21[st]August 2017.condition that the Appellant deposit cost ofRs.20000/- with the Tribunal on or before 21[st]August 2017. (ii) On deposit of said cost within the period asstipulated above, the Tribunal shall proceed anddecide the Appeal on merits after hearing all theparties concerned.stipulated above, the Tribunal shall proceed anddecide the Appeal on merits after hearing all theparties concerned. (iii) The Appellant shall appear before the Tribunal on21[st] August 2017.21[st] August 2017. (iv) The deposit of cost is condition precedent. (v) The Appeal accordingly disposed of. 7In view of disposal of the present Appeal, Notice ofMotion No.1231 of 2017 does not survive and stands disposed ofaccordingly. ( A.M.BADAR J.) ( S.V.GANGAPURWALA J.)