The Commissioner Of Income Tax,Central Circle Iii (4)Chennai v. Shri S.duraipandi & S.thalavaipandian (Aop)

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.06.2015 THE HONOURABLE MR.JUSTICE R.SUDHAKARANDTHE HONOURABLE MS.JUSTICE K.B.K.VASUKI T.C. (A) Nos.84 to 89 of 2015 The Commissioner of Income Tax,Central Circle III (4)Chennai....Appellant in all Appeals Vs Shri S.Duraipandi & S.Thalavaipandian (AOP)C/o.CNGSN & Associates,Swathi Court, Flat C & DNo.22, Vijayaraghava Road,T.Nagar, Chennai- 600 017.... Respondent in all Appeals Prayer:- These Tax Case (Appeals) are filed, against the order ofthe Income Tax Appellate Tribunal, Madras "C" Bench, Chennai dated08.04.2014 in ITA Nos.2062/Mds/2013, 2063/Mds/2013, 2064/Mds/2013,2065/Mds/2013, 2066/Mds/2013 and 2067/Mds/2013 respectivelypreferred against the common order of the Commissioner of IncomeTax (Appeals)(c)ii Chennai dt.29.8.13 for the Assessment Years2002-03, 2003-04, 2004-05, 2005-06, 2006-07 and 2007-08 against theorders dt.20.9.10 by ACIT, Central Circle-III (4) Chennai u/s 251of Income tax Act 1961 for the Assessment Years 2002-03 to 2007-08. For Appellant :Mr.T.R.Senthilkumar COMMON JUDGMENT (Judgment was delivered by K.B.K.VASUKI, J.) All these appeals are filed by the Revenue against the orderof the Tribunal, thereby condoning the delay of 922 days in filingthe appeals by the assessee for the Assessment Years 2002-03, 2003-04, 2004-05, 2005-06, 2006-07 and 2007-08 before the learnedCommissioner of Income Tax (Appeals). 2.While the Commissioner of Income Tax (Appeals) dismissed theappeals filed by the assessee before the same, with the delay of922 days on the ground that the delay was not sufficientlyexplained, the Tribunal, after having found that the assessee hasshown sufficient cause for the delay in filing the appeals,reversed the order of the learned CIT(A) and remitted back theappeals to the learned CIT(A) to decide the appeals of the assesseeon merits. The relevant paragraphs of the order of the Tribunal areextracted hereunder: https://hcservices.ecourts.gov.in/hcservices/ “7.In the background of above fact, we have to considerthe appeals of the assessee. The Hon'ble Supreme court ofIndia has time and again held that acceptance ofexplanation furnished for condonation of delay should bethe rule and refusal an exception more so when nonegligence or inaction or want of bonafide can be imputedto the defaulting party. The Hon'ble Supreme Court in thecase of Ram Nath Sao v. Gobardhan Sao reported as 2002(3)SCC 195 has held as under: “7.In the background of above fact, we have to considerthe appeals of the assessee. The Hon'ble Supreme court ofIndia has time and again held that acceptance ofexplanation furnished for condonation of delay should bethe rule and refusal an exception more so when nonegligence or inaction or want of bonafide can be imputedto the defaulting party. The Hon'ble Supreme Court in thecase of Ram Nath Sao v. Gobardhan Sao reported as 2002(3)SCC 195 has held as under: “Thus it becomes plain that the expression “sufficientcause” within the meaning of Section 5 of the Act orOrder 22 Rule 9 of the Code or any other similarprovision should receive a liberal construction so as toadvance substantial justice when no negligence orinaction or want of bona fides is imputable to a party.In a particular case whether explanation furnished wouldconstitute “sufficient cause” or not will be dependentupon facts of each case. There cannot be a straitjacketformula for accepting or rejecting explanation furnishedfor the delay caused in taking steps. But one thing isclear that the courts should not proceed with thetendency of finding fault with the cause shown and rejectthe petition by a slipshod order in over-jubilation ofdisposal drive. Acceptance of explanation furnishedshould be the rule and refusal, an exception, more sowhen no negligence or inaction or want of bona fides canbe imputed to the defaulting party. On the other hand,while considering the matter the courts should not losesight of the fact that by not taking steps within thetime prescribed a valuable right has accrued to the otherparty which should not be lightly defeated by condoningdelay in a routine-like manner. However, by taking apedantic and hypertechnical view of the matter theexplanation furnished should not be rejected when stakesare high and/or arguable points of facts and law areinvolved in the case, causing enormous loss andirreparable injury to the party against whom the listerminates, either by default or inaction and defeatingvaluable right of such a party to have the decision onmerit. While considering the matter, courts have tostrike a balance between resultant effect of the order itis going to pass upon the parties either way.” The Hon'ble Supreme Court of India while giving liberalconstruction to the term 'sufficient cause' in the caseof Collector Land Acquisition v. Mst.Katiji and othersreported as 167 ITR 471 (SC) has held: “Any appeal or any application, other than anapplication under any of the provisions of Order XXI of theCode of Civil Procedure, 1908 may be admitted after theprescribed period if the appellant or the applicantsatisfies the Court that he had sufficient cause for notpreferring the appeal or making the application within suchhttps://hcservices.ecourts.gov.in/hcservices/period. The Hon'ble Supreme Court of India while giving liberalconstruction to the term 'sufficient cause' in the caseof Collector Land Acquisition v. Mst.Katiji and othersreported as 167 ITR 471 (SC) has held: “Any appeal or any application, other than anapplication under any of the provisions of Order XXI of theCode of Civil Procedure, 1908 may be admitted after theprescribed period if the appellant or the applicantsatisfies the Court that he had sufficient cause for notpreferring the appeal or making the application within suchhttps://hcservices.ecourts.gov.in/hcservices/period. “1.Ordinarily a litigant does not stand tobenefit by lodging an appeal late.2.Refusing to condone delay can result in ameritorious matter being thrown out at the verythreshold and cause of justice being defeated. Asagainst this when delay is condoned the highest that canhappen is that a cause would be decided on merits afterhearing the parties.3.“Every day’s delay must be explained” does notmean that a pedantic approach should be made. Why notevery hour’s delay, every second’s delay? The doctrinemust be applied in a rational common sense pragmaticmanner.4.When substantial justice and technicalconsiderations are pitted against each other, cause ofsubstantial justice deserves to be preferred for theother side cannot claim to have vested right ininjustice being done because of a non-deliberate delay.5.There is no presumption that delay isoccasioned deliberately, or on account of culpablenegligence, or on account of mala fides. A litigant doesnot stand to benefit by resorting to delay. In fact heruns a serious risk.6.It must be grasped that judiciary is respectednot on account of its power to legalize injustice ontechnical grounds but because it is capable of removinginjustice and is expected to do so. Making a justice-oriented approach from this perspective,there was sufficient cause for condoning the delay in theinstitution of the appeal.” 8.In view of the facts and circumstances of the presentcase and the law laid down by the Hon'ble Apex Court, weare of the considered opinion that the appeals of theassessee deserve to be allowed. The assessee has been ableto show sufficient cause for delay in filing of appealsbefore the CIT (Appeals). The matter is remitted back tothe CIT (Appeals) to decide the appeals of the assessee onmerits. The CIT (Appeals) while adjudicating the appeals onmerits shall also take into consideration the effect of thedecision of the Tribunal in assessee's appeals in ITANos.2223 to 2229/Mds/2012 for Ays 2002-03 to 2008-09decided on 20-03-2013.” 3.The reading of the order of the Tribunal would reveal thatthe Tribunal has gone in depth into the various proceedings thathad been undertaken by the assessee before approaching theCommissioner of Income Tax (Appeals) for pursuing the appeals andthe delay is not on account of the inaction on part of theassessee, but on account of availing remedies before various forumsincluding before the Tribunal, the details of which have alreadybeen set out in the order of the Tribunal. Since the assessee hasnot chosen to pursue two parallel proceedings, the delay in filinghttps://hcservices.ecourts.gov.in/hcservices/the appeals has apparently occurred. 4.In view of such matter, we find no error or infirmity in theorder so passed by the Tribunal, warranting interference by thisCourt. 5.Hence, all the Tax Case Appeals are dismissed. No costs. Sd/-Assistant RegistrarTrue Copy Sub Assistant Registrar To1.The Income Tax Appellate Tribunal, "C" Bench, Chennai. 2.The Commissioner of Income Tax (A)C-II,A6 (Old No.108) M.G.Road, Chennai.3.The Asst.Commissioner of Income Tax,Central Circle III (4)Room No.325, III Floor,46/108 M.G.Road, Chennai. 4.The Assistant Registrar,Income Tax Appellate Tribunal,Rajaji Bhavan, IV Floor,Besant Nagar, Chennai. +1 cc to Mr.T.R.Senthilkumar, SSC, SR.27533.Ku(co)krd 24/6 T.C. (A) Nos.84 to 89 of 2015