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TMI Blog1991 (4) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... partner of the firm. This deed of partnership along with Form Nos. 11 11A were filed before the assessing officer on 28-3-1981 seeking registration of the firm for the assessment year 1982-83. The firm as reconstituted was granted continuation of registration for the assessment year 1983-84. There was again a change in the constitution of the firm during the course of the accounting year relevant to the assessment year 1984-85 as one of the partners retired from the firm as per the retirement deed dated 10-9-1982. The firm closed its books of accounts on 10-9-1983. Form Nos. 11 11A along with the deed of partnership in original were received from the assessee on 5-11-1983. Thus there was a delay of two months in submitting the application for registration. The assessing officer refused to accept the explanation submitted by the assessee for condoning the delay and passed order under section 184(4) of the Income-tax Act rejecting the request. On appeal it was dismissed by the Appellate Assistant Commissioner as not maintainable under section 246 of the Act. The order dated 7-2-1986 was served upon the assessee on 19-2-1986. Subsequently the assessment was reopened by issue of no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is preliminary objection on the ground that this appeal itself before the Tribunal was time barred by more than 3 years. The assessee itself has computed the delay in its affidavit filed before the Tribunal as has also been admitted by the registry in 1079 days. Being the delay running to more than 3 years, the appeal is time barred outright and this has to be dismissed in limine. There is no satisfactory explanation for such inordinate and huge delay by the assessee. 5. He has also added that even on merits, the assessee has no case. Earlier registration has no effect for the year in question. Conduct of the assessee is of delaying nature. Even before the assessing officer when he applied for registration it caused delay of merely two months which is therefore rightly rejected by the assessing officer. The appellate officer too correctly confirmed such rejection by the Income-tax Officer and dismissed the appeal as being not maintainable. The addition made in the assessment under section 144 was not challenged as the issue was not agitated at the relevant time when he ought to have done. In any event either for registration purposes where he has been sleeping over his right for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in question at nil was also accepted by the Income-tax Officer in toto. 7. He has also drawn support to his stand for condoning the delay either on merits or on the preliminary objection of the Revenue, from the decisions of the Hon'ble Supreme Court in the case of Concord of India Insurance Co. Ltd. v. Smt. Nirmala Devi [1979] 118 ITR 507 and in the case of Collector, Land Acquisition v. Mst. Katiji [1987] 167 ITR 471 besides the decision rendered by the Hon'ble M.P. High Court in the case of CIT v. Khemraj Laxmichand [1978] 114 ITR 75 at 78 particularly referring to another decision of the Hon'ble Supreme Court in the case of Mata Din v. A. Narayanan AIR 1970 (SC) 1953 which was extracted therein, as also the decision of the Hon'ble Punjab and Haryana High Court in the case of Manoj Ahuja v. IAC [1984] 150 ITR 696 at 701. He ultimately concluded by praying that in any event either on preliminary objection or on the merits of the case, the submissions of the revenue have no iota of substance. He thus prayed for the allowance of the appeal. 8. Learned representative for the revenue answered the assessee by stating that the cases relied upon by him have no applicability to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tified in condoning the delay and upholding the registration of the firm. 12. The sum and substance of the submissions of the assessee focussed emphatically was that there was no deliberate or wanton delay or lapse due to culpable negligence or mala fide on the part of the assessee in the instant case and that the mistaken advice of the earlier counsel to the assessee as has happened in this case will constitute a ground sufficient for condonation as held in the case of Manoj Ahuja. The mistake that has happened in the instant case was a bona fide one had there is no ulterior motive which therefore deserves condonation as per the decision in the case of Concord of India Insurance Co. Ltd. The grievance of the assessee is that only when the matter was said to be reopened and huge tax demand was raised as a result of the re-assessment, the assessee hastened to file this appeal against the order with a delay of nearly two months in filing the application for registration. 13. If sufficient cause for excusing delay is shown discretion is given to the Court to condone the delay and admit the appeal. This discretion has been conferred on the Court in order that judicial power and dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing officer if the status of the assessee is taken as URF or RF when for the assessment year in question viz. 1984-85, the assessee's total income was disclosed at nil which was also accepted by the Income-tax Officer. He has also given his finding that the assessee can file an appeal as per the provisions of section 246 only when he is aggrieved and that he could not see any grievance of the assessee in the appeal before him. Thus he found that there was no need to adjudicate on the grounds of appeal raised before him. The assessee was given a mistaken advice that no appeal is necessary to be filed against such impugned order when his income disclosed for the assessment year in question was accepted by the Income-tax Officer. Thus the mistaken advice and the wrong findings of the Appellate Asst. Commissioner impressed the assessee that he was not aggrieved at that stage. He found that he was really aggrieved only when received the notice demanding tax of Rs. 76,869 pursuant to action taken under section 148 in the reassessment on total income of Rs. 1,36,790 as per the order dated 22-3-1989. Immediately thereafter, the assessee firm submitted the present appeal before the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hold 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. (iii) "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. (iv) When substantial justice and technical consideration 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. (v) 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. (vi) 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. 17. On the peculiar facts and circumstances of the case now before us and in view of all the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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