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TMI Blog2019 (3) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... , ITA No. 675/Mum/2018 - - - Dated:- 11-3-2019 - Shri Pawan Singh, Judicial Member And Shri N.K. Pradhan, Accountant Member For the Appellant : Shri Piyush Chhajed (AR) For the Respondent : Shri Satish Chandra Rajore ( Sr- DR) ORDER UNDER SECTION 254(1)OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER; 1. These two appeal by assessee are directed against the separate order of ld. Commissioner of Income-tax (Appeals)-28, hereinafter referred as ld CIT(A), Mumbai dated 13.10.2017 for Assessment Year 2012-13. In ITA No. 675/Mum/2018, the assessee has challenged the additions in the quantum assessment and in ITA No. 674/Mum/2018, the assessee has challenged the confirmation of penalty under section 271(1)(c) of the Act. In both the appeals, the ld. CIT(A) dismissed the appeals of the assessee under sub-section (3) of section 249 by not condoning the delay in filing appeal, resultantly the appeals were not admitted for hearing on merit. The appeal in quantum assessment was filed after 247 days of prescribed period of limitation and similarly the appeal on penalty levied under section 271(1)(c) was filed after 65 days of period of limitation. The ld. CIT(A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umbai. All records related that the business including vouchers, invoices received, statements were kept in the Administrative Office. During the relevant Financial Year under consideration i.e. 2012-13, the assessee suffered huge business losses and assessee committed in business commitment. The bankers of assessee declared the assessee-firm and its partner as defaulter and the loan of assessee was declared as NonITA Performing Asset (NPA). On the application of bankers of assessee i.e. Allahabad bank and Oriental Bank of Commerce, the Administrative Office/business premises of the assessee was sealed in pursuance of order dated 24.12.2014 passed by Chief Metropolitan Magistrate (CMM), Esplanade, Mumbai in proceeding initiated under SARFAESI Act. The ld. AR of the assessee further submits that 28 cases were lodged against the assessee-firm and the companies wherein the partners were Directors. The Firm and its Directors were facing very tough time and facing significant stress and depreciation due to financial losses and prolonged legal proceedings. As a result, the Firm and its partner could not take appropriate step for filing appeal before the First Appellate Authority. The ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erved upon the assessee on 09.04.2015. The assessee filed appeal before the ld. CIT(A) on 11.01.2016. The assessee also filed application supported the affidavit for condoning the delay of 247 days in filing appeal. The ld. CIT(A) dismissed the appeal of assessee by not condoning the delay, resultantly the appeal was dismissed being not admitted. 8. The Hon ble Apex Court in Collector, Land Acquisition vs. Mst. Katji Ors (supra) held that when substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred, the other side cannot claim to have vested right in injustice being done because non-deliberate delay. There is no presumption that delay is occasioned deliberately or on account of culpable negligence or on a malafide. The litigation does not stand to benefit by resorting to delay, in fact he is on serious risk. 9. Hon ble Madras High Court in S. Duraipandi (supra) held that where assessee faced the financial hardship to pay tax due to relevant time and after making sufficient arrangement of funds can pay taxes, due to delay was to be condoned. 10. The Co-ordinate Bench of Cochin Tribunal in Kai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. (viii)There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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