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2019 (9) TMI 914 - AT - Income TaxCondonation of delay - delay of 1038 days in filing the appeal before the Tribunal - whether the assessee’s failure is sufficient cause for condoning the delay? - Whether 1038 days was excessive or inordinate? - HELD THAT:- When substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right for injustice being done because of non deliberate delay. No counter-affidavit was filed by the Revenue denying the submission made by the assessee. It is not the case of the Revenue that the appeal was not filed deliberately. Therefore, we have to prefer substantial justice rather than technicality in deciding the issue. As observed in MST. KATIJI AND OTHERS [1987 (2) TMI 61 - SUPREME COURT] if the application of the assessee for condoning the delay is rejected, it would amount to legalise injustice on technical ground when the Tribunal is capable of removing injustice and to do justice. This Tribunal is bound to remove the injustice by condoning the delay on technicalities. If the delay is not condoned, it would amount to legalising an illegal order which would result in unjust enrichment on the part of the State by retaining the tax relatable thereto. Under the scheme of Constitution, the Government cannot retain even a single pie of the individual citizen as tax, when it is not authorised by an authority of law. Therefore, if we refuse to condone the delay, that would amount to legalise an illegal and unconstitutional order passed by the lower authority. Therefore, in our opinion, by preferring the substantial justice, the delay of 1038 days has to be condoned. There is no question of any excessive or inordinate when the reason stated by the assessee was a reasonable cause for not filing the appeal. We have to see the cause for the delay. When there was a reasonable cause, the period of delay may not be relevant factor. In case the delay was not condoned, it would amount to legalise an illegal and unconstitutional order. The power given to the Tribunal is not to legalise an injustice on technical ground but to do substantial justice by removing the injustice. The Parliament conferred power on this Tribunal with the intention that this Tribunal would deliver justice rather than legalise injustice on technicalities. Therefore, when this Tribunal was empowered and capable of removing injustice, in our opinion, the delay of 1038 days has to be condoned and the appeal of the assessee has to be admitted and disposed of on merit. We condone the delay of 1038 days in filing the appeal and admit the appeal for adjudication. Estimation of income of the assessee on the basis of the seized records - Estimation of G.P. - There is no error in the estimation of income of the assessee on the basis of the seized records. The estimation of income by the AO is based on the documents found during the search and statement recorded during the course of search. Being so, the AO is completely justified in adopting those figures for the whole year and for the next year. For this proposition, reliance is placed on the judgment of the Jurisdictional High Court in the case of Travancore Diagnostics P. Ltd. vs. ACIT [2016 (11) TMI 76 - KERALA HIGH COURT] wherein it was held that when suppression had been found from the documents and the statement on record, the AO was completely justified in adopting those figures for the whole year and for the next year which was based on sound rationale, since from the statement on behalf of the assessee, the suppression was found to be continued. In view of the uncontroverted and admitted statement given on behalf of the assessee u/s. 133A and the documents impounded during the survey, which were also virtually admitted by the assessee, there was no error in the order of the Tribunal in accepting the materials on record in order to arrive at an assessment.
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