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TMI Blog2019 (9) TMI 914X X X X Extracts X X X X X X X X Extracts X X X X ..... ected, it would amount to legalise injustice on technical ground when the Tribunal is capable of removing injustice and to do justice. This Tribunal is bound to remove the injustice by condoning the delay on technicalities. If the delay is not condoned, it would amount to legalising an illegal order which would result in unjust enrichment on the part of the State by retaining the tax relatable thereto. Under the scheme of Constitution, the Government cannot retain even a single pie of the individual citizen as tax, when it is not authorised by an authority of law. Therefore, if we refuse to condone the delay, that would amount to legalise an illegal and unconstitutional order passed by the lower authority. Therefore, in our opinion, by preferring the substantial justice, the delay of 1038 days has to be condoned. There is no question of any excessive or inordinate when the reason stated by the assessee was a reasonable cause for not filing the appeal. We have to see the cause for the delay. When there was a reasonable cause, the period of delay may not be relevant factor. In case the delay was not condoned, it would amount to legalise an illegal and unconstitutional order. The powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The order of the Commissioner of Income Tax (Appeals) - IV, Kochi, in ITA No.346/CIT(A)-IV/2015-16 dated 31.03.2016 for the Assessment Year 2008-09, is opposed to law, facts and circumstances of the case. 2. The CIT(A) went wrong in confirming the additions of ₹ 93,56,364/- for the Assessment Year 2008-09. 3. The appellant respectfully submits that the enhancement of the sales turnover from ₹ 2,00,49,352/- to ₹ 6,68,31,173/-, is also arbitrary. The above estimate is purely on a mechanical basis by multiplying the declared turnover applying a formula of 100/30, which has resulted in estimation of suppressed turnover of ₹ 4,67,81,821/-. Absolutely, no material is brought on record or referred to, in order to apply the formula of 100/30 pertaining to the appellant's business, which is different and separate from other business concerns, whose turnover and profits are referred to. 4. It is respectfully submitted that the estimate of profit at 20% of the suppressed turnover is also arbitrary and illegal. Absolutely, no material or evidence is relied on for estimating profit at 20% of the turnover, which is presumably shown as a concession as against 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys in filing the appeal before this Tribunal. The assessee has explained the reasons for the delay by way of affidavit as follows: 1. I am the proprietrix of the petitioner firm in the above appeal. I am acquainted with the facts of the case. I am authorized and competent to swear to this affidavit. 2. The petitioner herein is the appellant in the accompanying appeal and petitioner in the petition for condonation of delay, for the Assessment tear 2008-09. The appeal is filed against the common order dated 31.03.2016 in I.T.A. No.346/M/CIT(A)-lV/Kochi/2015-16 and connected appeal passed by the ClT(A)-lV, Kochi. 3. The appeal filed by the petitioner before the Commissioner of Income Tax(Appeals)-lV, Kochi, vide I.T.A. No.346/ClT(A)-lV/Kochi/2015-16, was disposed of by order dated 31.03.2016. The appeal was heard on 28.03.2016 and represented by the petitioner's Chartered Accountant Shri. Gopalakrishnan. There were three appeals relating to the Assessment Years 2006-07 to 2008-09, all of which were disposed of by common order dated 31.03.2016. The appeals filed before the CIT(A) related to the Assessment Years 2006-07 to 2008-09, of which the appeals for the first two Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner. There is no willful omission or neglect on the part of the petitioner. 6. The delay is not intentional or willful, but due to reasons beyond control. The petitioner would suffer great hardship, prejudice and monetary loss, if the delay is not condoned and the appeal decided on merits. The petitioner has raised very valid grounds in the Memorandum of Appeal and there is reasonable chance of success in the appeal. The petitioner is unable to pay the unbearable demand. In such circumstances, if coercive action is taken, it would cause serious hardship, prejudice and mental agony to the petitioner. In the above facts and circumstances of the case, the petitioner humbly prays that the Appellate Tribunal, Cochin Bench, Cochin, may be pleased to condone the delay of 1040 days in filing the appeal in time and accept the same on file and render justice. A separate petition praying the above relief is filed herewith and the same may be considered. All the facts stated above are true and correct to the best of my knowledge, information and belief." 3.1 Thus, the Ld. AR pleaded to condone the delay and to decide the appeal on merits. 3.2 The Ld. DR strongly objected to the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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. (5) 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. (6) 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. 4.1 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 for injustice being done because of non deliberate delay. No counter-affidavit was filed by the Revenue denying the submission made by the assessee. It is not the case of the Revenue that the appeal was not filed deliberately. Therefore, we have to prefer substantial justice rather than technicality in deciding the issue. As observed by Apex Court, if the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of advancing substantial justice is of prime importance and the expression "sufficient cause" should receive a liberal construction. Therefore, this Judgment of the Madras High Court (supra) clearly says that in order to advance substantial justice which is of prime importance, the expression "sufficient cause" should receive a liberal construction. Therefore, for the purpose of advancing substantial justice which is of prime importance in the administration of justice, the expression "sufficient cause" should receive a liberal construction. In our opinion, this Judgment of the Madras High Court is also squarely applicable to the facts of this case. A similar view was taken by the Madras High Court in the case of Venkatadri Traders Ltd. v. CIT (2001) 168 CTR (Mad) 81 : (2001) 118 Taxman 622 (Mad). 4.4 The Mumbai Bench of this Tribunal in the case of Bajaj Hindusthan Ltd. v. Jt. CIT (AT) (277 ITR 1) has condoned the delay of 180 days when the appeal was filed after the pronouncement of the Judgment of the Apex Court. Furthermore, the Revenue has not filed any counter-affidavit opposing the application of the assessee for condonation of delay. The Ape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, there is no error in the estimation of income of the assessee on the basis of the seized records. The estimation of income by the Assessing Officer is based on the documents found during the search and statement recorded during the course of search. Being so, the Assessing Officer is completely justified in adopting those figures for the whole year and for the next year. For this proposition, reliance is placed on the judgment of the Jurisdictional High Court in the case of Travancore Diagnostics P. Ltd. vs. ACIT (390 ITR 167) wherein it was held that when suppression had been found from the documents and the statement on record, the Assessing Officer was completely justified in adopting those figures for the whole year and for the next year which was based on sound rationale, since from the statement on behalf of the assessee, the suppression was found to be continued. In view of the uncontroverted and admitted statement given on behalf of the assessee u/s. 133A and the documents impounded during the survey, which were also virtually admitted by the assessee, there was no error in the order of the Tribunal in accepting the materials on record in order to arrive at an assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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