2024 (1) TMI 326

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....d that in terms of provisions of Section 253(5) of the Act, the Tribunal has the power to admit the appeal even after expiry of the period referred to in sub-section (3) & (4) of Section 253 of the Act ff the Tribunal is satisfied that there was sufficient cause for not presenting the appeal within the stipulated period. The Ld. Counsel for the assessee submitted that the assessee was earlier resident of Kolkata residing at Block BH 111, Sector 2, Salt Lake, Kolkata-700071. Thereafter the assessee shifted permanently to 71, Pahargaon, Dollygunj, Port Blair. The Ld. Counsel for the assessee submitted that for the relevant assessment year i.e. AY 2011-12, the return of income was on 30.09.2011 by mentioning the address as Austinabad, Port Blair. The Ld. A.R stated that right from AY 2008-09 to 2011-12 the assessee has been filing the returns of income in the office of DCIT, Austinabad, Port Blair and the copies of acknowledgement of the ITRs are placed at page no. 1 to 4. The Ld. A.R also referred to the communication received from the Department and also the intimation issued u/ s 143(1) at Port Blair address mentioning 97/2, Moulana Azad Road, Phoenix Bay, Port Blair, Andaman & Nic....

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.... from the office of ITO, Ward-3(4), Port Blair that the assessee was finally able to procure copy of the appellate order to enable his CA to draft, prepare and file the present appeal. The Ld. A.R also stated that the finally the appeal was filed on 17.10.2023 before the Tribunal. The Ld.A.R therefore submitted that the delay in filing the appeal is neither intentional nor the assessee is benefitted in any manner from the said delayed filing of appeal. The Ld. A.R submitted that since the reasons attributable to late filing the appeal are beyond the control of the assessee, therefore in the interest of justice and fair play the appeal of the assessee may be admitted and adjudicated. In defense of argument the Ld. A.R relied on the decision of Hon'ble Apex court in the case of Improvement Trust vs. Ujagar Singh & Ors. [2010] 6SCC 786 (SC) and Collector, Land Acquisition vs. Mst. Katiji [1987] 1987 taxmann.com 1072 (SC) . Finally the Ld. A.R prayed that the appeal may be admitted for hearing. 5. The Ld. D.R on the other hand opposed the contentions of the assessee that the period of 2083 days is beyond the control of the assessee. The ld. D.R submitted that it may be true that the....

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....use 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. Similarly, we would like to make reference to authoritative pronouncement of Hon'ble Supreme Court in the case of N.Balakrishnan Vs. M. Krishnamurthy (supra). It reads as under: "Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wa....

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.... propound that whenever the reasons assigned by an applicant for explaining the delay, then such reasons are to be construed with a justice oriented approach. 9. In the light of above, if we examine the facts of the present case, then it would reveal that basically the appeal has been filed after 2083 days of the ld. CIT's order but almost more than two years is attributable to COVID period, i.e. March ,2020 to May,2022. Besides , we note that the assessee has shifted to Portblair and has been filing the returns of income there only from A.Y. 2008-09 onwards. However the Notices in this case were issued by JCIT ,Range 37 Kolkata and were sent on the kalkata address and hence the proceedings could not be attended. Similarly the appeal of the assessee was also decided ex-parte the order was not served on the Portblair address. Moreover, making the appeal time-barred has not been used by the assessee as a tactics to avoid the litigation with the Revenue because such strategy would not give any benefit to the assessee in this type of litigation. Therefore, we condone the delay and proceed to decide the appeal on merit. 10. Issue raised in ground no. 2 as stated above is legal iss....