Case Law Details
ITAT HYDERABAD
T. Kishan
V/s.
Assistant Commissioner of Income-tax
IT (SS) A NOS. 23 & 25 (HYD.) OF 2011
[BLOCK PERIOD OF ASSESSMENT YEARS 1996-97 TO 2002-03]
MAY 18, 2012
ORDER
Chandra Poojari, Accountant Member
These two appeals by the assessee are directed against the common order of the CIT(A)-I, Hyderabad dated 23.8.2004 for the block period from 1996-97 to 2002-03. Since common issues are involved, these appeals are clubbed together, heard together and are being disposed of by this common order for the sake of convenience.
2. Facts leading to the filing of the present appeals in brief are that there were search and seizure operations on the premises of the assessee on 5.2.2002, in the course of which incriminating documents and cash of Rs. 1,60,000 were seized. Assessee thereafter filed block return in Form No. 2B on 22.7.2002 admitting an undisclosed income of Rs. 23,15,677, on which tax payable was worked out at Rs. 13,84,406. As against this, the assessing officer completed block assessment determining the total undisclosed income of the assessee for the block period at Rs. 3,32,78,152, vide order of assessment dated 27.2.2004 passed under S. 158BC(c) of the Act.
3. Aggrieved by the block assessment made as above, assessee preferred appeal before the CIT(A). The CIT(A), vide his order dated 23.8.2004, taking note of the fact that the assessee has paid tax of Rs. 30,000 only on 10.4.2003, observed that there was default on the part of the assessee in paying tax on the returned undisclosed income. He accordingly issued a show-cause notice inviting attention of the assessee to sub-section (4) of S. 249 of the Act, as per which no appeal can be admitted unless the full amount of admitted tax is paid at the time of filing an appeal. The assessee in response appeared in person on 13.8.2004, and stated that full amount of admitted tax has not been paid till then. The CIT(A) observed that even after the adjustment of seized cash of Rs. 1,60,000 towards admitted tax, the aggregate payment of tax works out to Rs. 1,90,000 only as against tax due on admitted undisclosed income returned of Rs. 13,84,406. In the circumstances, after referring to the Board Circular No. 559 dated 4th May, 1990, wherein the scope and effect of sub-section (4) of S. 249 has been explained, the CIT(A) concluded that the appeal of the assessee cannot be admitted. He accordingly dismissed the same in limine by the impugned order dated 23.8.2004.
4. Aggrieved by the above order of the CIT(A), assessee filed appeal IT(SS)A No. 25/Hyd/11 before us, on 2.9.2011, with a delay of 2491 days.
5. In the meanwhile, the assessee filed a petition dated 14.3.2011 before the CIT(A), informing the payment of admitted tax for the block period on 17.2.2011, and explaining the reasons for the delay in the payment of admitted tax, prayed for restoration of the appeal and for disposing of the same on merits. The CIT(A), vide her letter dated 14.7.2011, rejected this petition of the assessee observing as follows-
“2.0 The order of the CIT(A) has been passed after due consideration of the facts of the case. The restoration of the appeal, after it has been dismissed for violation of sec. 249(4) is not a rectifiable error apparent form record. There is no provisions for restoration of appeal, as is being sought by the assessee.”
6. Aggrieved by the above communication of the CIT(A) rejecting the petition of the assessee seeking restoration of appeal and adjudication of the same on merits, assessee preferred the other appeal, IT(SS)A No. 23/Hyd/2011 before us.
7. In the appeal which is directed against the order of the CIT(A) passed under S. 250 of the Act dated 23.8.2004, viz. IT(SS)A. No. 25/Hyd/2011, which is filed with a delay of 2491 days, grounds taken by the assessee are as follows-
1. The Order of the Commissioner of Income-tax (Appeals)-I, Hyderabad in dismissing the Appeal ‘in limine” as the admitted Tax was not paid by the Appellant is wholly unsustainable in Law and on facts.
2. The learned CIT(A)-I Hyderabad failed to note that the shortfall in payment of admitted tax was due to reasons beyond the control of the Appellant and therefore, the CIT(A)-I, Hyderabad, erred in dismissing the Appeal “in limine”.
3. Any other ground or grounds that may be urged at the time of hearing.
8. At the outset, we may note that the assessee has filed a petition in the form of an affidavit seeking condonation of delay of as much as 2491 days, which has occurred in the filing of this appeal. The said affidavit elaborately discussed the reasons for the delay in the filing of the appeal, and stated inter alia that the assessee was under a bona fide impression that the appeal would be restored on the file of the CIT(A), on the basis of his application dated 17.3.2011 seeking such restoration and disposal on merits, submitted after payment of admitted taxes, and it is only when such a thing has not happened, that he has filed the present appeal. He has also mentioned in great detail the personal suffering and mental agony which he suffered during the years of delay involved. He submitted that there was reasonable cause for the assessee for not paying the admitted tax, which is elaborately explained in the affidavit seeking condonation of delay. The learned counsel for the assessee submitted that there is, in that process, a reasonable cause for delay in filing of the appeal by the assessee, and as such the same may be condoned and the appeal be disposed of on merits. He submitted that if the delay is not condoned, the assessee would not have any opportunity to put forth its case on merits in the face of huge tax demand thrust on him and there would be gross violation of the principles of natural justice.
9. With regard to the other appeal, viz. IT(SS)A No. 23/Hyd/2011, which is filed against the communication of the CIT(A) declining to restore the appeal and adjudicate upon the same on merits, in view of the fact that the assessee has paid the admitted taxes, the learned counsel for the assessee submitted, that even though there is no mistake apparent on record in the order of the CIT(A) dated 23.8.2004, which was passed in terms of S. 249(4) of the Act, dismissing the appeal in limine on account of non-payment of admitted taxes, since the CIT(A) has not adjudicated upon the grounds urged by the assessee in the appeal, inasmuch as it was dismissed in limine, such an application of the assessee for restoring the appeal and adjudicating the same on merits is admissible, and the CIT(A) was not justified in rejecting the same. It is submitted that there was a reasonable cause for the non-payment of admitted taxes by the assessee. The appeal of the assessee before the CIT(A) remained defective on account of non-payment of taxes. That is only a curable defect, and as and when the defect is cured, the assessee is entitled to approach the appellate authority to admit the appeal and dispose of the same on merits. That being so, once the defect is cured by making payment of admitted taxes, the assessee is entitled for disposal of its appeal on merits, subject to condonation of delay by the CIT(A), in curing the defect by the assessee.
10. In support of the above contentions, learned counsel for the assessee placed reliance on the following decisions-
(a) Improvement Trust v. Ujagar Singh [2010] 6 SCC 786
(b) Poonja Arcade v. Asstt. CIT [2010] 326 ITR 123/191 Taxman 291 (Kar.)
(c) Sreenivas Charitable Trust v. Dy. CIT [2006] 280 ITR 357/154 Taxman 377 (Mad.)
(d) Auto Centre v. State of Uttar Pradesh [2005] 278 ITR 291/148 Taxman 573 (All.)
(e) Ganga Sahai Ram Swarup v. ITAT [2004] 271 ITR 512 (All.)
(f) CIT v. Orissa Concrete & Allied Industries Ltd. [2003] 264 ITR 186/[2004] 135 Taxman 187 (Cal.)
(g) Vedabai Vaijayanatabai Baburao Patil v. Shantaram Baburao Patil [2002] 253 ITR 798/122 Taxman 114 (SC)
(h) Venkatadri Traders Ltd. v. CIT [2001] 248 ITR 681/118 Taxman 622 (Mad.)
(i) Voltas Ltd. v. Dy. CIT [2000] 241 ITR 471/[1999] 106 Taxman 361 (AP)
(j) Society of Divine Providence v. Union of India [1999] 235 ITR 339/102 Taxman 42 (MP)
(k) CIT v. K.S.P. Shanmugavel Nadar [1985] 153 ITR 596/[1987] 30 Taxman 133 (Mad.)
(l) Royal Airways Ltd. v. Addl. DIT (International Taxation) [2006] 98 ITD 259 (Delhi)
(m) All India Primary Teachers Federation v. DIT (Exemption) [2005] 93 TTJ 155 (Delhi)
(n) Kamal Jewellers v. ITO [1995] 55 ITD 451 (Delhi)
(o) Kadur Vidhya Pratishtana v. CIT [2007] 15 SOT 75 (Bang.)
(p) Angela J. Kazi v. ITO [2006] 10 SOT 139 (Mum.)
(q) Collector Land Acquisition v. Mst. Katiji [1987] 167 ITR 471 (SC)
(r) Smt. Rameshwari Devi v. Sansar Chand AIR 1986 Himachal Pradesh 67
(s) Order of Hyderabad Bench ‘B’ of the Tribunal dated 13.10.2011 in Chida Spinning Mills v. ACIT (ITA No.1068/Hyd/2003)
11. Reliance is also placed on the decision of Hyderabad Bench ‘A’ of this Tribunal dated 5.6.2009 in Lavu Educational Society v. CIT Vijayawada (in ITA No. 648/ Hyd/2009).
12. The Learned Departmental Representative on the other hand, strongly supported the appellate order of the CIT(A) and submitted that payment of admitted tax is mandatory and there is no violation of principles of natural justice on account of dismissal of appeal in limine in terms of S.249(4) of the Act.
13. We have considered the rival submissions and perused the orders of the lower authorities impugned in these appeals. As far as the delay in filing the appeal by 2491 days against the appellate order of the CIT(A), viz. IT(SS)A No. 25/Hyd/2011 is concerned, one has to admit that the delay involved is inordinate and not marginal. The delay could not have been mitigated to any great extent, since the admitted taxes on the returned income was paid only on 17.2.2011, and till such payment, the appeal before the CIT(A) could not have been sought to be restored on the ground of having cured the defect. Personal problems or financial constraints per se could not constitute a reasonable cause for non-payment of admitted taxes, and the appellate authority cannot be expected to keep the appeal pending adjudication on merits indefinitely, in the hope of the defect being cured by the assessee at his own convenience after overcoming all his personal difficulties. It is settled position of law that it is only marginal delays that can be condoned, and not inordinate delays running into several years. We may at this juncture, refer to the Third Member decision of Tribunal (Chennai) in the case of Jt. CIT v. Tractors & Farms Equipments Ltd. [2007] 104 ITD 149, wherein drawing out a distinction between normal delay and inordinate delay, it has been observed, vide head-note on page 150 of the Reports (104 ITD) as follows-
“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 more cautious approach, 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 considering the expression ‘sufficient cause’, the principle of advancing substantial justice is of prime importance.”
14. That being so, the case-law relied before us by the learned counsel for the assessee has no application to the facts of the present case. Further we make it clear that there is no hard and fast rule which can be laid down in the matter of condonation of delay and Courts should adopt a pragmatic approach and discretion on the facts of each case keeping in mind that in considering the expression ‘sufficient cause’ the principles of advancing substantial justice is of prime importance and the expression ‘sufficient cause’ should receive a liberal construction. A liberal view ought to be taken in terms of delay of few days. However, when there is inordinate delay, one should be very cautious while condoning the delay. The delay of 2491 cannot be condoned simply because the assessee’s case is hard and calls for sympathy or merely out of benevolence to the party seeking relief. In granting the indulgence and condoning the delay, it must be proved beyond the shadow of doubt that the assessee was diligent and was not guilty of negligence whatsoever. The sufficient cause within the contemplation of the limitation provision must be a cause which is beyond the control of the party invoking the aid of the provisions. The Supreme Court in the case of Ramlal v. Rewa Coalfields Ltd. AIR 1962 SC 361 has held that the cause for the delay in filing the appeal which by due care and attention could have been avoided cannot be a sufficient cause within the meaning of the limitation provision. Where no negligence, nor inaction, or want of bona fides can be imputed to the assessee a liberal construction of the provisions has to be made in order to advance substantial justice. Seekers of justice must come with clean hands. In the present case, the reasons advanced by the assessee do not show any good and sufficient reason to condone the delays. The delays are not properly explained by the assessee. There is no reason for condoning such delay in this case. The delay is nothing but negligence and inaction of the assessee which could have been very well avoided by the exercise of due care and attention. There exists no sufficient or good reason for condoning inordinate delays of more than 2491 days in filing appeal before us. Accordingly, this appeal is dismissed as barred by limitation.
15. We accordingly decline to condone the delay of 2491 days, and dismiss this appeal of the assessee as barred by limitation.
16. Now we will take up IT(SS)A No. 23/Hyd/2011 for adjudication. This appeal is against the communication of the CIT(A) dated 14.7.2011, declining to restore the appeal of the assessee, and thereby rejecting the petition of the assessee. In this case the assessee had filed an appeal on 12.4.2004 against the block assessment dated 27.02.2004 passed u/s. 158BC of the IT Act. The same was dismissed by the CIT(A) in limine as the admitted tax was not paid. The assessee vide letter dated 14.3.2011 requested the CIT(A) to restore the appeal as the admitted tax has been paid by that time. However, the CIT(A) refused the same by holding that there is no provision under the Act to restore the appeal which is dismissed for violation of provisions of section 249(4) of the I.T. Act. Against this the assessee is in appeal before us.
17. It is an admitted fact that as on the date of passing of the impugned order dated 23.8.2004 by the CIT(A), admitted tax was not paid and the appeal was defective in terms of S. 249(4) of the Act. That being so, the CIT(A) dismissed the appeal as non-maintainable. However, at the time of filing the petition before the CIT(A) on 14.3.2011 for restoration of the appeal, the admitted tax has been paid. Before us, the learned AR prayed for restoration of appeal as the admitted tax has been paid and sought direction from us to the CIT(A) to decide the appeal on merit.
18. The DR submitted that there is no mistake apparent on record in the order of the CIT(A) dated 23.8.2004, warranting recall of the said order. There is no appealable order in this case.
19. We have duly considered the rival contentions. From the perusal of record and on consideration of respective arguments, following points have emerged out for our adjudication:
(1) Whether the Tribunal has powers under Section 254(1) to give a finding that, an appeal filed in violation of Section 249(4) would be termed as defective one and the moment the defect is cured by making payment of agreed tax, the appeal can be decided on merit subject to limitation provided in Section 249(2) and its condonation thereof as per Section 249(3).
(2) Whether non-availability of funds for making payment of agreed taxes with the assessee could be considered as a reasonable cause for filing defective appeals in violation of Section 249(4) of the Act.
(3) Whether sufficient reason exists for curing this defect after expiry of limitation provided in Section 249(2) of the Act.
20. It is undisputed proposition of law that appeal is a continuation of the original proceedings and right of appeal is not an inherent right but it is a statutory right. It is open to the legislature to give or not to give a right of appeal against decisions made by authorities. The right of appeal wherever conferred by statute has to be exercised strictly in conformity with the statutory provisions, which create it. If the statute put any restrictions then, such right would be available along with such restrictions. It is also not disputed before us that assessee had made the payment of agreed tax during the pendency of these appeals. Before embarking upon the jurisdiction of the Tribunal whether these appeals can be restored back to the CIT(A) or not, it is salutary to take note of Sub-sections (3) and (4) of Section 249 and Sub-section (1) of Section 254 because these provisions have direct bearing on the controversy :
Section 249(3) : “The CIT(A) may admit an appeal after the expiration of the said period if he is satisfied that the appellant had sufficient cause for not presenting it within that period.”
Section 249(4) : “No appeal under this Chapter shall be admitted unless at the time of filing of the appeal,–
(a) Where a return has been filed by the assessee, the assessee has paid the tax due on the income returned by him; or
(b) where no return has been filed by the assessee, the assessee has paid an amount equal to the amount of advance tax which was payable by him :
Provided that, in a case filling under Clause (b) and on an application made by the appellant in this behalf, the CIT(A) may, for any good and sufficient reason to be recorded in writing, exempt him from the operation of the provisions of that clause.”
Section 254(1) : “The Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit.”
21. For considering the powers of Tribunal contemplated in Sub-section (1) of Section 254, it would be imperative for us to refer the judgment of the Hon’ble Supreme Court rendered in the case of Hukumchand Mills Ltd. v. CIT [1967] 63 ITR 232 wherein the Hon’ble Supreme Court had considered the ambit and scope of the expression “pass such orders therein as it thinks fit”, used in Section 33(4) of IT Act, 1922, which is analogous to 254(1) in Income-tax Act, 1961. At page 237, the Hon’ble Supreme Court made following observation :
“The word ‘there of’, of course, restricts the jurisdiction of the Tribunal to the subject-matter of the appeal. The words “pass such orders as the Tribunal thinks fit” include all the powers (except possibly the power of enhancement) which are conferred upon the AAC by Section 31 of the Act. Consequently, the Tribunal has authority under this section to direct the AAC or the ITO to hold a further enquiry and dispose of the case on the basis of such enquiry.”
22. Then again this expression came for consideration before the Hon’ble Supreme Court in the case of CIT v. Assam Travels Shipping Service [1993] 199 ITR 1/67 Taxman 269 (SC). In this case, assessee filed the return late for asst. yrs. 1963-64 and 1964 65. Thus, violated Section 271(1)(a)(2) of the Act. The learned AO levied the penalty. However, while calculating the penalty, he worked out the amount at a very lower figure. He levied the penalty at Rs. 6,494 and Rs. 70,118 for asst. yrs. 1963-64 and 1964-65 respectively as against the amount of Rs. 65,700 and Rs. 93,564. The assessee challenged this levy of penalty before the CIT(A). The learned CIT(A) quashed the penalty on the ground that the AO levied the penalty contrary to the provisions of Section 271(1). The matter further travelled to the Tribunal. The Tribunal has also dismissed the appeal of the Department by confirming the order of the CIT(A) on the ground that Tribunal has no power to enhance the penalty. In such a situation, it can do nothing except affirming the order of the CIT(A). Ultimately, the matter went up before the Hon’ble Supreme Court. The Hon’ble. Supreme Court has observed as under while elaborating the scope of expression “pass such orders thereon as it thinks fit.” :
“The expression “as it thinks fit” is, wide enough to including the power of remand to the authority competent to make the requisite order in accordance with law in such a case even though the Tribunal itself could not have made the order enhancing the amount of penalty. The power of the AAC under Section 251(1)(b) includes the power even to enhance the penalty subject to the requirement of Sub-section (2) of Section 251 of a reasonable opportunity of showing cause against such enhancement being given to the appellant assessed. This could have been done in the assessee’s appeal itself filed in the present case. The power of the Tribunal to make an order of remand in such a situation is well-settled in Hukumchand Mills Ltd. v. CIT [1967] 63 ITR 232 (SC).”
23. On plain reading of Sub-section (3) of Section 249 shall reveal that if the assessee showed sufficient reasons for late filing of his appeals, then such delay can be condoned and controversy would be silenced on merit. Similarly, for sake of explanation, if an assessee did not have sufficient funds for complying the requirement of Section 249(4) and has not filed the appeal within the time provided under Section 249(2), subsequent to expiry of limitation, he made compliance of Section 249(4) and filed the appeal with a prayer of condonation of delay then it would be in discretion of the first appellate authority to see whether sufficient reasons for late filing of appeal exist or not. If the learned CIT(A) arrived at a conclusion that sufficient reasons exist then again the controversy would be decided on merit. Thus, on conjoint reading of Sub-sections (3) and (4), it is inferred that defect arises due to non-compliance of Section 249(4) is a curable one and in a given case if the Tribunal is satisfied that there exist sufficient reasons for curing such defects after expiry of limitation, it would be in the realm of Tribunal’s discretion to restore such matters to the file of the CIT(A) for deciding the controversy on merit because Sub-section (1) of Section 254 provides wide powers to the Tribunal for passing such orders thereon as it thinks fit in the interest of justice.
24. There is no dispute that the assessee has discharged the huge tax liability on 17.2.2011 vide Challan No. 788, Indian Bank, Himayatnagar Branch, Hyderabad, BSR Code 0260025 which is evident from the document filed by the assessee. Thus, it would be totally unfair for not providing an opportunity to him for disputing the additions made by the AO on merit. The Hon’ble Full Bench of Delhi High Court in J.T. (India) Exports v. Union of India [2003] 262 ITR 269, while elaborating the principle of natural justice along with the legal justice, has observed as under :
“Natural justice is another name for commonsense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a commonsense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form.”
25. The expression, ‘natural justice and legal justice’ do not present a water-tight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technically, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law.
26. The adherence to principle of natural justice as recognized by all civilized states is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties.
27. From the judgment of Hon’ble Delhi High Court, it is clear that whenever legal justice fails to achieve the solemn purpose of securing justice then natural justice is called in aid of legal justice. From the details submitted by the assessee in the paper book as extracted by us, it reveals that assesses kept on making the payment of tax along with interest in instalments. Had the assessee was having sufficient fund with him, then no prudent businessman would allow to swell the liability of interest in such a way. For example, the total tax required to be paid by the assessee in asst. yr. 1991-92 on the agreed return along with interest was Rs. 17,30,273. Against it, by the end of December, 1997, assessee has paid Rs. 26,09,843. Thus, it clearly indicates that assessee was not having sufficient funds at the relevant time for compliance of Section 249(4) which rendered the appeals of the assessee as defective one. In the interest of justice, we are of the opinion that these appeals deserve to be allowed by setting aside the impugned order of the CIT(A) and restoring the same before the learned first appellate authority for adjudication on merit. For our above view, we are supported by the decision of Hon’ble Orissa High Court given in the case of CIT v. Kalipada Ghose [1987] 167 ITR 173/[1986] 29 Taxman 197. Though the issue before the Hon’ble High Court was on a little different footing, but an inference can be drawn from the judgment that in such cases the right course would be restoring the appeal before the CIT(A). Before the Hon’ble Orissa High Court, the issue relates to asst. yrs. 1974-75 and 1975-76. The learned AO determined the income of assessee at Rs. 17,500 and Rs. 30,000. Against this order, the appeals were filed before the first appellate authority on 29th Oct., 1975. By then Section 249 has been amended by incorporating Sub-section (4) w.e.f. 1st Oct., 1975. The learned first appellate authority dismissed the appeal of the assessee in limine on the ground that assessee failed to pay the agreed tax at the time of filing of the appeal. During the pendency of appeal before the Tribunal, the assessee paid agreed tax on 15th June, 1976, The Tribunal set aside the order of the learned CIT(A) and restored the matter back to the file of first appellate authority. The Revenue has challenged the order of the Tribunal on the ground that decision given by the first appellate authority was not one under Section 250 of the Act and, therefore, no appeal would lie to the Tribunal and the Tribunal has no jurisdiction under Section 253 for setting aside the order of first appellate authority and directing the first appellate authority to decide the issue afresh on merit. The Hon’ble High Court rejected the contention of the Revenue and upheld the order of the Tribunal. While doing so, the Hon’ble High Court at p. 176 observed as under :
“On the aforesaid analysis, it has to be held that the order of the AAC dismissing the appeals for non-compliance with Section 249(4) of the Act came within the ambit of Section 250 of the Act and was appealable before the Tribunal under Section 253 of the Act. The Tribunal, therefore, committed no illegality in entertaining the appeals and in condoning the delay on being satisfied, on the facts and circumstances of the case, that there was sufficient cause for the assessee’s failure to comply with Section 249(4) of the Act and in remitting the cases to the first appellate forum for disposal on merits. Accordingly, the question referred is answered in the affirmative.”
28. Thus, we are fortified for our view by the above decision of the Hon’ble High Court.
29. The next issue for our adjudication is whether sufficient reasons exist for curing defect after expiry of limitation provided under Section 249(2) of the Act. Since, we have held in the upper part of the order that appeal filed in violation of Section 249(4) would be termed as a defective one and the moment defect is cured then those can be disposed of on merit subject to limitation. The Courts and the quasi-judicial bodies are empowered to condone the delay if a litigant satisfies the Court that there were sufficient reasons for availing the remedy after expiry of limitation. Such reasoning should be to the satisfaction of the Court. The expression “sufficient cause or reason”, as provided in Sub-section (3) of Section 249 of the Act, is used in identical position in a number of statutes and the Hon’ble Supreme Court as well as the Hon’ble High Courts have time and again held that expression “sufficient cause” for condonation of a delay should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party because the judiciary is expected 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. A litigant does not stand to benefit by resorting the delay or breaching any provision of a statute. The Hon’ble, Supreme Court in Mst. Katiji (supra) has observed that 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 a vested right in injustice being done because of a non-deliberate delay. Thus, considering the hardship of the assessee, we are of the opinion that there exist sufficient reasons for not filing a valid effective appeal before the CIT(A). It is aptly said that facts should be viewed in a natural perspective having regard to the compulsion of circumstances of a case where it is possible to draw inferences, from the facts and where there is no evidence of any dishonest or improper motive on the part of the assessee it would be just and equitable to draw such inference in such a -manner that would lead to equity and justice. Too hyper technical or legalized approach should be avoided in looking at a provision which must be equitably interpreted and justly administered. Hence, taking into consideration the overall facts and circumstances of the case we are of the opinion that these appeals deserve to be allowed and, accordingly, allowed. We set aside the order of the learned CIT(A) and restore the matters before him for deciding the controversy on merit.
30. In the result, IT(SS)A No. 25/Hyd/2011 is dismissed and IT(SS)A No. 23/Hyd/2011 is allowed.
