Delay in filing appeal due to CA’s fault is bona fide & must be condoned

After considering the rival submissions and carefully gone through the affidavit filed by the assessee as well as the affidavit of Shri Sunil Hirawat, CA of the assessee, we note that the facts of the case do not suggest that the assessee has acted in a malafide manner or the reasons explained is only a device to cover an ulterior purpose. It is settled proposition of law that the Court should take a lenient view on the matter of condonation of delay. However, the explanation and the reason for delay must be bonafide and not merely a device to cover an ulterior purpose or an attempt to save limitation in an underhand way. The Court should be liberal in construing the sufficient cause and should lean in favor of such party. Whenever substantial Justice and technical considerations are opposed to each other, cause of substantial Justice has to be preferred.

In the case in hand, when the reasons explained by the assessee are not found as malafide or a device to cover up ulterior purpose, then a liberal approach has to be taken for considering the sufficiency of course. We are satisfied with the reasons explained by the assessee that due to bonafide mistake and inadvertence, the appeal could not be filed within the period of limitation. Accordingly, in the interest of Justice we condone the delay of 496 days in filing the present appeal.

 INCOME TAX APPELLATE TRIBUNAL MUMBAI ‘G’ BENCH

BEFORE SHRI VIJAY PAL RAO, JM & SHRI RAJENDRA, AM

ITA No. 5994/Mum/2010 – (Asst Year 2005-06)

Shri Y P Trivedi

Vs

The Jt Commr of Income Tax Range 11(3), Mumbai 

Dt.of hearing –   3rd July 2012

Dt of pronouncement –   11th July 2012

PER VIJAY PAL RAO, JM