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TMI Blog2013 (12) TMI 1209X X X X Extracts X X X X X X X X Extracts X X X X ..... e Respondent : Govind Krishna ORDER 1. We have heard Sri S.D. Singh, Senior Advocate, assisted by Sri Harsh Vardhan for the appellant-assessee. Sri Govind Krishna appears for respondent-department. 2. This Income Tax Appeal under Section 260-A of the Income Tax Act, 1961 (the Act) is directed against the order dated 15.12.2003, passed by the Income Tax Appellate Tribunal (S,M.C.), Lucknow Bench, Lucknow in Income Tax Appeal No. 1517(Alld)/97, relating to assessment year 1994-95. 3. The assessee-appellant has raised the following substantial questions of law, for consideration of the Court:- "1. Whether the assessee's right of appeal could be snatched for the delay of 46 days caused by mistake of its counsel? 2. Whether there was any delay on part of the assessee in applying to its assessing authority for certified copies of the original and supplementary partnership deeds? 3. Whether even otherwise the assessee's appeal could have been dismissed when the original and supplementary partnership deeds exist on the assessment record? 4. Whether the assessee could have been assessed as an Association of Persons and salary and interest paid to the partners disallowed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03, the assessee filed an application for condonation of delay along with an affidavit of Sri H.K. Gupta, Advocate - the counsel appearing for the assessee, in which it is stated in paragraph Nos. 1 to 4, for condonation of delay as follows:- "1. That the deponent is an Advocate by profession and is looking after all matters connected to Income Tax etc for the Firm namely M/s.Kishore Trading Company, Kanpur since the past several years. 2. That the deponent was handed over the copy of the order of the Ld. CCIT (Appeals) of the aforementioned Firm by the partners Srhi Kishore Kumar Mishra for assessment year 1994-95 some time in the month of September 1997, for filing the second appeal before the Hon'ble ITAT, Allahabad Bench, Allahabad. 3. That the deponent was required to prepare and get the appeal filed before 30.10.1997 being the last date for filing the same. 4. That the deponent due to pressure of work and oversight could not prepare the appeal in time and thus an inadvertent delay of almost 46 days occurred in filing the appeal for the present assessment year." 7. The Tribunal, after referring to the facts of the case, dismissed the appeal with reasons given in para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law. If there is a stay of dispossession it will continue till the disposal of the matter by the High Court. There remains the question as to who shall pay the costs of the respondent here. As we feel that the party is not responsible because he has done whatever was possible and was in his power to do, the costs amounting to Rs.200/- should be recovered from the advocate who absented himself. The right to execute that order is reserved with the party represented by Mr. A.K.Sanghi. Appeal allowed to the extent indicated with costs in the manner indicated." 10. Sri S.D. Singh has also relied on another judgment in Ram Kumar Gupta and others Vs. Har Prasad and another [(2010) 1 SCC 391] in which relying on judgment in Rafiq Vs. Munhsi Lal (supra) the Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s order in the High Court." 11. In N. Balakrishnan Vs. M. Krishnamurthy [(1998) 7 SCC 123] the Supreme Court once again reiterated the same principle in para 13 as follows: - "13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss." 12. Sri Govind Krishna, appearing for respondent-department, submits that the explanation for condoning the delay, off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xplained that the delay in filing the appeal beyond 31.10.1997, occurred due to pressure of work in his office. The Tribunal did not consider the affidavit of the counsel for the appellant, and while mentioning the fact that further particulars have been filed, namely, supplementary partnership deed, rejected the grounds for condoning the delay, without giving any reason. The conclusion drawn by the Tribunal that it is a not a fit case for condoning the delay is not a reason to disbelieve or reject the explanation. 15. We are not required to adjudicate as to whether the reason given by the counsel for the assessee was sufficient or not. The fact that the Tribunal did not consider the reason, and observed that it was not a case to condone the delay has deprived the appellant the remedy of Second Appeal, which is the final authority on recording findings of fact. We are thus satisfied that the Tribunal did not apply its mind to the explanation offered for condonation of delay in filing the appeal. 16. The appeal is allowed. The question Nos. 1 and 2 are decided to the effect that whenever an explanation is given to condone the delay in filing the appeal, the Tribunal must exercis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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