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TMI Blog2020 (2) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned ex parte orders are set aside back to the file of the AO and not the CIT(A) as the parties have highlighted that evidences are not on record as before the AO also, the assessee could not make effective representation due to the illness etc. of the Directors. - I.T. Appeal Nos. 1088 To 1092 (CHD.) Of 2018 - - - Dated:- 24-9-2019 - Smt. Diva Singh, Judicial Member And Smt. Annapurna Gupta, Accountant Member Tej Mohan Singh, Adv. for the Appellant. Chanderjeet Singh, CIT-DR, for the Respondent. ORDER Smt. Diva Singh, These five appeals have been filed by the assessee against the separate orders dated 26.09.2016 of CIT(A)-3 Gurgaon pertaining to 2005-06, 2009-10, 2010-11, 2011-12 and 2012-13 assessment years on identical grounds. 2. However, before addressing the same, parties were heard on the delay of 615 days pointed out by the Registry in each of the appeals filed. 3. The ld. AR inviting attention to the Revised Condonation of delay application dated 27.07.2019 filed in substitution of the original condonation of delay application dated 28.05.2019 submitted that the delay has occurred in view of the peculiar facts and circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Shri G.K. Bhola and Shri Deepak Uniyal, the ld. AR on the last two dates offered that in case statement of Shri D.Uniyal was to be recorded or the Revenue wanted to cross-question him qua the contents of his affidavit, he was present and available. The CIT-DR waived the need to cross question him. Reverting back to his arguments relying upon the revised condonation of delay application and the affidavits, the ld. AR submitted that due to some communication gap between the assessee company, Department and the G.PA holder Shri B.K. Bhola, the delay has occurred inadvertently. Supporting documents including the affidavits of Shri B.K. Bhola and Shri Deepak Uniyal alongwith the medical history of Shri Rajiv Goyal and e-mail communications etc. between the respective parties were relied upon. 3.1 Referring to the same, it was his submission that the delay has occurred on account of the inadvertent mis-communication arising out of the peculiar facts and circumstances where the Directors remained pre-occupied. Accordingly, it was his submission that the delay may be condoned. 4. The ld. CIT-DR Mr. Chanderjeet Singh submitted that the assessee before the AO has also remained unr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss the facts set out in the revised condonation of delay application dated 27.07.2019 placed on record by the assessee. The application is extracted hereunder for the sake of completeness: Respectfully submitted as under:- 1. That the Income Tax Appeals against the orders dated 26.09.2016 of the Commissioner of Income Tax (Appeals)-3, Gurgaon relating to assessment years 2005-06, 2009-10, 2010-11, 2011-12 and 2012-13 were filed on 23.08.2018 which were late by 615 days. 2. That the appellate orders were received on 17.10.2016 in the office of the company being attended to only by an office supervisor of the group companies Sh. Deepak Uniyal who in turn handed over the documents to CA Alok Krishan who was at that point of time looking after the affairs of the group companies. He was also sent an e-mail on 17.10.2016 vide official e-mail ID [email protected] attaching therewith copies of the appellate orders passed by the CIT(A)-3, Gurgaon. Copy of the same is annexed herewith at Page 1. 3. That the auditors of the Company stationed at New Delhi inquired about the details of assessments framed for the purpose of incorporating the details of outstandings of the Income Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Krishan. 14. That immediately corrective measures were initiated and the appeals were filed though belatedly on 23.08.2018 through Sh. Tejmohan Singh Advocate. 15. That the delay was due to multiplicity of problems with the company being defunct, no regular employee, the director suffering from cancer and out of the country with his wife who was the other director and mistake of the Chartered Accountant who was representing the group companies. 16. That there being no mala fide intention of not filing the appeal in time, it is prayed that the delay be condoned. It is, therefore, respectfully prayed that the delay be condoned there being a reasonable cause and in the in interest of substantial justice, the appeal be heard on merits. 7.1 It is seen that the application is accompanied by the following supporting documents which have been annexed: Sl. No. Description of documents 1. Copy of the e-mail dated 17.10.2016. 2. Copy of the General Power of Attorney in favour of Shri B.K. Bhola issued by the Director of the assessee-company. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortunate for him when it was discovered during the Thyroid surgery that the cancer had spread to one of his lymph nodes and also, in his Deudanom surgery margins were not found to be clear, which meant that both the cancers can relapse. He is currently undergoing various tests and treatments to bring himself into safety zone. Also, the root cause of persistent pain in the abdomen is still not known. It is actually very painful and taxing on his health/body to undergo so many surgeries/procedures, investigations, tests etc. in such a short span as he already had two major surgeries of Thyroid Duodenum. It was very unfortunate that during the Duodenum surgery the margins were not clear and there is possibility of a relapse anytime. The thyroid tumuors had also spread to lymph nodes due to which he had to take radio active iodine therapy (chemotherapy) and is under constant observation. Some tumours have been observed on the liver too, which are also under constant observation may have to be removed by another major surgery. In August, 2015 he underwent surgery of Colorectal which did not go well...Post surgery he had to be on bed for almost 4 months and underwent many ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Shri B.K. Bhola has been executed who was looking out for the affairs of the company. Shri B.K. Bhola was kept informed of notices/orders etc. received at the factory premises by Shri D. Uniyal, only employee at both of the defunct company. The contents of the affidavit of Shri B.K. Bhola and Shri Deepak Uniyal are also extracted hereunder for the sake of completeness: AFFIDAVIT I, B.K. Bhola son of Shri Om Parkash Bhola aged 54 years resident of H. No. 2389, Sector 71, Mohali do hereby solemnly affirm and declare as under: - 1. That I am the Authorised Signatory of M/s. Emsons Organics Limited being G.PA holder of Sh. Rajeev Goyal, Director. 2. That the Income Tax Appeals against the orders dated 26.09.2016 of the Commissioner of Income Tax (Appeals)-3, Gurgaon relating to assessment years 2005-06, 2009-10, 2010-11, 2011-12 and 2012-13 were filed on 23.08.2018 which were late by 615 days. 3. That the appellate orders were received on 17.10.2016 in the office of the company being attended to only by an office supervisor of the group companies Sh. Deepak Uniyal who in turn handed over the documents to CA Alok Krishan who was at that point of time looking after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d orders would have been filed since the original orders had been given to their counsels CA Alok Krishan. 15. That immediately corrective measures were initiated and the appeals were filed though belatedly on 23.08.2018 through Sh. Tejmohan Singh Advocate. 16. That the delay was due to multiplicity of problems with the company being defunct, no regular employee, the director suffering from cancer and out of the country with his wife who was the other director and mistake of the Chartered Accountant who was representing the group companies. Sd/- Deponent Verified that the above noted contents of my affidavit are true and correct to the best of my knowledge and belief and nothing has been concealed therein. Sd/- Deponent Chandigarh Dated 27.7.2019. 7.4 Contents of Affidavit of Shri Deepak Uniyal: AFFIDAVIT I, Deepak Uniyal, son of Shri B.D. Uniyal aged 28 years resident of House No. 280, Hallomajra, Chandigarh do hereby solemnly affirm and declare as under: - 1. That the Income Tax Appeals against the orders dated 26.09.2016 of the Commissioner of Income Tax (Appeals)-3, Gurgaon relating to assessment years 2005-06, 2009-10, 2010-11, 2011-12 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled against the impugned order was preceded by lack of representation even before the CIT(A) also. This lapse is pleaded to be arising due to communication gaps etc. between Shri D.Uniyal and the erstwhile C.A. wherein Mr. Goel the other Director was also being kept in the loop and some e-mail Id created for communication between the erstwhile C.A. and the company operated by Shri D.Uniyal became inoperative. Shri D. Uniyal relying on past practice understood that communication was complete which it appears was not accessed by the erstwhile C.A. In the said background, we are required to adjudicate on the issue whether in these peculiar facts and circumstances should the assessee after having taken all possible steps to ensure that it is represented in the various forums be allowed to succeed in demonstrating sufficient cause or should the assessee fail on technicalities. When the contents of the Condonation of Delay Application extracted above are considered, alongwith the contents of the affidavit of Shri B.K. Bhola, G.PA holder, specific page 37 paras 13-14 thereof are read alongwith paras 3, 4 5 of the affidavit of Shri Deepak Uniyal, it is seen that the consistent documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the phrase every day's delay must be explained has clearly held that it does not imply that while interpreting the provisions, a pedantic approach should be taken. The Court held that the doctrine must be applied in a common sense and pragmatic manner holding that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be adhered. While espousing such an approach, the Court was quick to highlight that for doing so was imperative as the other side cannot claim to have a vested right in injustice being done because of a non-deliberate delay on the part of the other side . In the facts of the present case, we have seen that Shri Rajeev Goel, the Director underwent various surgeries for his multiple cancer related health issues and the other Director being his wife, also remained out of the country alongwith Shri Rajeev Goel. The affidavit of the G.PA holder Shri B.K. Bhola has been seen. The contents of the same have also been verified by Shri Deepak Uniyal, the sole employee of the assessee company handing the notices and orders etc. from various authorities. It appears that on account of a mis-commu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, 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 judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 7.8 We may also refer to the decision of the Hon'ble Supreme Court in the case of Concorde of India Insurance Co. Ltd. v. Smt. Nirmala Devi [1979] 118 ITR 507 and the decision of the Hon'ble Madhya Pradesh High Court in the case of Mahaveer Prasad Jain v. CIT [1988] 172 ITR 331 to support our conclusion. The Courts in the aforesaid de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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