TaxTMI 
TaxTMI 
2006 (4) TMI 357
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....sessing Officer differed with the valuation adopted by the assessee as on 1-4-1981 and also denied the benefit admissible under section 54 to the Act. In this way ld. Assessing Officer has assessed the income of assessee at Rs. 27,56,690 as against Rs. 44,390. This order was framed under section 143(3) on 30-11-1995. 3. Dissatisfied with the determination of total income at Rs. 27,56,690 assessee carried the matter in appeal before ld. CIT(A) and raised two issues. At the first count assessee impugned the finding of Assessing Officer with regard to denial of benefit admissible under section 54 and in the second count she disputed the determination of value of the flat sold as on 1-4-1981, as adopted by the Assessing Officer. 4. The ld. CIT(A) vide his order dated 21-3-1996 has rejected the first claim of assessee on the ground that assessee could only produce the booking of the flat and she could not produce the sale agreement if any executed with the builder, therefore, she does not fulfil the requisite condition formulated in section 54 of the Act. 5. With regard to the second issue ld. CIT(A) set aside the dispute to the Assessing Officer for fresh determination. 6. ....
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....herself from Bombay to Goa. She could not file the appeal against the first order of the CIT(A) before the ITAT primarily because of two reasons, firstly she remained under the impression that unless sale agreement is executed with the builder she will not get the benefit under section 54 as held by the Assessing Officer and CIT(A) in the first round of their orders. Under this impression she approached the Dispute Redressal Commission and consequently got the sale agreement executed. She remained under the impression that the moment she will get sale agreement benefit under section 54 would be given to her. Only after the adjudication of the dispute by the Tribunal in the second round of appeal assessee could understand that she has approached a wrong Forum and she should have challenged the original order of the ld. CIT(A) also before the Tribunal. She contended that there is no mala fide intention on the part of the assessee for not filing the appeal before the Tribunal. Because of the litigation at various stages i.e., Consumer Court, Family Court for diverse and shifting of her residence from Bombay to Goa this delay has occurred. Ld. counsel for the assessee prayed that consi....
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....ery much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences. 9. It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation, whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unle....
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....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 so. Making a justice-oriented approach from this perspective; there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the "State" which was seeking condonation and not a private party was altogether irrelevant." 15. Keeping in mind the above authoritative pronouncements of the Hon'ble Supreme Court if we advert to the facts of the present case then it revealed that explanation of the assessee does not smack mala fide or does not put forth as a dilatory strategy. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned but that alone is not enough to turn down the plea and to shut the doors against him. As observed by the Hon'ble Supreme Court in the case of N. Balakrishnan (supra) the length of delay is immaterial. It is the acceptability of the explanation, that is the only criteria for condoning the delay. Though there is a delay of more than 7½ years and some negligence can be attributed to t....
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....er of the High Court passed on the writ petition in 1962. Taking into consideration the injustice to the employee the Hon'ble Court has condoned the long delay of 31 years and decided the appeal on merit. Taking into consideration the over all circumstances and judgment of Hon'ble Supreme Court in the larger interest of justice we condone the delay in filing the appeal and proceed to decide the issue on merit. 16. On merit we find that in order to demonstrate that assessee has purchased the new flat out of the sale proceeds of the old flat she placed on record the letter of booking dated 2-4-1993 (page 9 P.B.), Bank Statement reflecting the debit entry of the amounts paid for the purchase of new flat, copy of the cheque paid to the Builder (Page 19, P.B.), petition filed before the State Redressal Commission, copy of the order of the State Redressal Commission (Page 34, P.B.) and the ultimate sale agreement dated 22-5-1996, which is in pursuance of booking of the flat. On the strength of all these documents ld. counsel for the assessee claimed that relief under section 54 be granted to the assessee. On the other hand, ld. D.R. relied upon the order of ld. CIT(A) and contended th....