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TMI Blog2022 (6) TMI 1069X X X X Extracts X X X X X X X X Extracts X X X X ..... er filing the appeal should be vigilant enough for pursing it before the authorities but for this, if the assessee fails to pursue the appeal, the assessee cannot be penalized by confirming such huge addition without hearing his points of contentions. The mistake committed by the assessee and punishment given to him (the assessee) by sustaining the addition is not commensurate to each other in the given facts and circumstances. But the negligent/dilly-dally approach of the assessee before the Ld. CIT(A) cannot be neglected/ignored. Therefore, we are inclined to levy a cost of Rs. 5,000/- upon the assessee for adopting the negligent approach in the appeal proceedings before the Ld. CIT(A). Accordingly, we direct the assessee to deposit a sum of Rs. 5,000/- to the Income Tax Department prior to the commencement of hearing before the Ld. CIT(A). We are of the view that the assessee must be given one more opportunity of hearing to represent its case. Therefore, in exercise of power conferred under Rule 28 of Tribunal Rules, we restore this appeal to the file of Ld. CIT(A) for reconsideration all grounds of appeal after allowing proper opportunity of being heard in accordance with la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r condoning the delay. In this regard we note that the Hon'ble Madras High Court in the case of Sreenivas Charitable Trust v. Dy. CIT reported in 280 ITR 357 has held that: 3. The Supreme Court in Vedabai v. Shantaram Baburao Patil [2002] 253 ITR 798 held as under: In exercising discretion under section 5 of the Limitation Act the Courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard. The Court has to exercise the discretion on the facts of each case keeping in mind that in construing the expression 'sufficient cause', the principle of advancing substantial justice is of prime importance. (p. 799) 4. The Calcutta High Court in CIT v. Orissa Concrete Allied Industries Ltd. [2003] 264 ITR 186 held as under: ...what is really indicated in the vario ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing the appeal which are reproduced hereunder: (1) Ordinarily, a litigant does not stand to benefit by lodging an appellate. (2) Refusing to condone delay can result in a meritorious matter being thrown at the very threshold 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. (3) '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, commonsense and pragmatic manner. (4) 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. (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 judi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al in accordance with the s. 143? 5. Whether the ITO was legally empowered to arbitrarily disallow the bona fide interest expenses of Rs. 6,62,073 by invoking s. 36(1)(ii) of the Income Tax Act by bereaving the fundamental rights as enshrined under Art. 19(1)(g), 20(3) and 21 of the Constitution and without having any cogent and admissible documents but merely on his own assumptions, presumptions, conjectures and surmises basis? 6. Whether the ITO was legally correct in its tainted jurisdiction to arbitrarily add Rs. 1,43,359 by invoking section 68 of the Income Tax Act without having adverse finding and by overruling the fundamental rights as enshrined in Art. 20 of the Constitution and which was based not on a cogent and admissible document merely on his own assumption, presumption, conjecture and surmises? 7. Whether the ITO was legally empowered and within its jurisdiction in arbitrarily making the addition of Rs. 4,20,000 being cash deposit by invoking s. 69A of the Income lax Act without having adverse finding which was contrary to the facts on the records and by overruling the fundamental rights as enshrined in Art. 19(1)(g) 20(3) of the Constitution and wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of judicial proceedings and without verifying the jurisdiction of the ITO to make any non-jurisdictional addition/disallowance to the returned income? 15. The Honorable Bench of the ITAT be pleased to accept the above grounds of appeal in the best interest of justice to the aggrieved and bereaved appellant and pass an order to set aside the impugned order of the ITO. 16. The Honorable Bench of the ITAT must pass the order with cost and award a compensation to the appellant for infringement and deprivation of the fundamental rights, abuse of process of law and abuse of the power granted to the ITO and for the harassment suffered by the appellant on above grounds of appeal. Further the costs and the compensation must be imposed upon the ITO for unscrupulously framing the order in violation of law. 6. At the outset, it was perceived from the order of Ld. CIT(A) that the several notices were issued and served upon the assessee for fixing the date of the hearing and last date of hearing of the appeal was fixed on 18.01.2017 but in none of the occasion, anybody appeared on behalf of assessee. Therefore, the Ld. CIT(A) passed an ex parte order due to non-appearance of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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