TaxTMI 
TaxTMI 
2010 (3) TMI 1119
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.... in the circumstances of the case and in law, the learned CIT(A) erred in not deciding the issue on merits and not allowing the payments made to common staff of Rs. 20,06,098. The appellant prays that the same may kindly be heard and allowed." 2. Briefly the facts relating to ground No. 1 are that the assessee filed the appeal before the CIT(A) belatedly by 1358 days and requested for condonation of the said delay in filing the appeal. The CIT(A) did not condone the delay and dismissed the assessee's appeal in limine by observing that at this stage it is not just and proper on the part of the appellant to raise the issue after a gap of almost four years. Under section 249(3) of the IT Act, the first appellate authority may on good and sufficient reasons for the delay being shown, admit the appeal after the expiry of limitation of time for filing the appeal. The CIT(A) further held that such delay in filing the appeal should be ordinarily accompanied by a petition showing and explaining the cause of the appellant not being able to file the appeal within the period of limitation and praying for the condonation of delay. The CIT(A) relied upon certain decisions and concluded tha....
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....of the Act is being considered. The learned AR submitted that delay in filing appeal before CIT (A) was not deliberately. The learned AR relied upon the another judgment of Hon'ble Supreme Court in the case of N. Balakrishnan V. M. Krishnamurthy, AIR 1998 SC 3222. 5. As regards submissions of affidavit from earlier chartered Accountant the learned AR submitted that on identical set of facts Hon'ble Madras High Court in the case of Areva T and D India Ltd., (formerly known as Alstom Ltd.) V. JCIT, [2006] 287 ITR 555 (Mad.), has accepted the affidavit filed by the party. In the said case the delay was on account of advice by counsel, tribunal insisted on affidavit from counsel and the counsel declined to give any such affidavit sworn to by the director of assessee filed before the Tribunal. The Tribunal ought to have been given finding whether assessee had given sufficient cause in affidavit sworn to by the director of assessee. The Court held that the Tribunal was not correct in dismissing appeal on account of limitation. On merit, the learned AR relied upon the decision of ITAT, Mumbai Bench "D" in the case of Sterlite Industries (India) Ltd. V. Addl. CIT, [2006] 6 SOT 497 (Mum.....
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....ne under the facts and circumstances of the case that the appeal was filed beyond the prescribed time limit before CIT(A). A right of appeal is a statutory one, and, unless there is anything explicit in the statute or the rules made there under, such right cannot be restricted. The construction which deprives the parties of valuable rights should be avoided. That taking the plea of limitation when there is a judgment or order against which the statute provides a right of appeal but none is preferred within the time prescribed therefore, the respondent acquires a valuable right, of which he cannot be deprived by an order condoning delay and admitting the appeal behind his back. And when such an order is passed ex parte, he has a right to challenge its correctness at the hearing of the appeal. That is the position under the general law, and there is nothing in the provisions of Act, which enacts a different principle. Therefore, if an appeal is admitted without the fact of delay in presentation having been noticed clearly it must be open to the department to raise the objection at the time of the hearing of the appeal. That would also appear to be the practice obtaining before the Tr....
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....a right of appeal on the assessee, section 31 of the 1922 Act provides for the hearing and disposal of the appeal, and section 33 of the 1922 Act confers a right of further appeal against orders passed under section 31.Under section 33 of the 1922 Act it is only orders under section 31 that are appealable. An order declining to condone delay and dismissing the appeal as barred by time is an order under section 31 of the 1922 Act, if it is passed in appeal against an order of assessment, and is one which affirms it. When power is granted to an authority to be exercised at his discretion, it is necessarily implicit in the grant that he may exercise it in such manner as the circumstances might warrant. And if the AAC has discretion to excuse the delay, he has also discretion in appropriate cases to decline to do so. Therefore the refusal to excuse delay is an order under section 30(2) of the 1922 Act. The Apex Court has held that a right of appeal is a substantive right, and is a creature of the statute. Section 30(1) of the 1922 Act confers on the assessee a right of appeal against certain orders, and an order of assessment under section 23 of the 1922 Act is one of them. The appe....
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....on 250 of the Income Tax Act,1961 .All the orders under section 250 of the Income Tax Act,1961 being appealable under section 253 of the Income Tax Act,1961.The order of dismissal for non-compliance with section 249(2) of the Income Tax Act,1961, not filing appeal in time is also be appealable. In the light of above discussions we do not find substance in submission of the Learned DR therefore his contention is rejected. 8.3 Now we come to the merit of the case. In the case of condo nation of delay in filing appeal the entire controversy would revolve on the showing or not of sufficient cause while praying for condonation of delay. In other words, where there is sufficient cause shown and the application for condonation of delay has been moved bonafide, the court would normally condone the delay but where the delay has not been explained at all and, in fact, there is unexplained and inordinate delay coupled with negligence or sheer carelessness, the discretion of the court in such cases would normally tilt against the applicant. The period of limitation has to be construed somewhat strictly and advantages that accrue to non-applicant would normally not been taken away in a routi....
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.... care and caution. An interpretation or application of the statutory provisions which would frustrate its very object necessarily has to be avoided. The law of procedure undisputedly takes in its ambit and scope the need to act expeditiously and not to delay the progress of the legal proceedings. The law of limitation stricto senso is not law of procedure simplicitor but has the effect of creating a legal bar in exercise of a right which otherwise would have been available to a party but for lapse of time. As already noticed, the law of limitation is based on public policy and helps effective and proper administration of justice. It is expected of every litigant, to act within the period of limitation. It is only by way of an exception and upon showing sufficient cause that Appeals, if otherwise permissible, could be entertained beyond the prescribed period of limitation. It also be noticed that in the case of State of West Bengal vs. Administrator, Howrah Municipality, AIR 1972 SC 749, the Supreme Court held that expression "sufficient cause" should receive a liberal construction so as to advance the purpose of justice particularly when there is no motive behind delay. This necess....
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....ined" does not mean that 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 and pragmatic manner. 4. When substantial justice and technical considerations 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 malafides. A litigant does not stand to benefit by resorting to delay. In fact, he runs serious risk. 6. It must be grasped that the 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." 8.5 Here we would also like to refer the finding of the Apex Court in the case of N. Balakrishnan V. M. Krishnamurthy, AIR 1998 SC 3222. The Apex Court held as under:- "11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort d....