TMI Blog1994 (2) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... The Chartered Accountant in turn had filed an affidavit before the first appellate authority stating that he was instructed by the client to file the appeal on receipt of the order for the assessment year 1983-84 which was acknowledged in his office on 12th February, 1985 and that in the normal course the appeal should have been filed on or before 14th March, 1985 but was, in fact, filed only on 14th April, 1985 involving a delay of about a month and that the delay occurred in his office due to certain staff problem and that the appellant was, in no way, responsible for such delay. The learned CIT(A) was of the view that the Chartered Accountant's affidavit was rather vague and the delay was not explained by sufficient cause. Thus he refus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be liberally construed so as to advance substantial justice when no negligence or any inaction or want of bona fides is imputable to a party, i.e., the delay in filing an appeal should not have been for reasons which indicate the party's negligence in not taking necessary steps when he would have or should have taken. What would be such necessary steps will again depend upon the circumstances of a particular case. AIR 1960 SC and AIR 1972 SC 749, Rel. on." But then there is a later decision of the Supreme Court in Mst. Kaliji's case on the question of limitation wherein their Lordships indicated the kind of approach the Court should adopt in the matter of condonation of delay in the filing of petitions, suits, etc. in the following term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulpable 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 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." The decision in Mst. Katiji's case is a later decision in point of time ; the later decision has amplifled the former decision of the Bench of coordinate jurisdiction. In this view of the matter, we hold that the CIT(A) should have adopted a liberal approach in the matter of condonation of delay, especially when the Chartered Accountant had categorically stated in the affidavit that he had received th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal and disposed it of on merits. This having not been done, we set aside his order and restore the appeal to his file with a direction to entertain the appeal and decide the same on merits in accordance with law. 6. For the assessment year 1984-85 the assessee is aggrieved against the determination of the income on estimate basis at 12% of the gross receipts excluding the cost of materials supplied by the Government. The appellant is a civil contractor and his gross receipts less cost of materials amounted to Rs. 25 lakhs approximately on which it had disclosed a net profit of 8.4%. The learned Assessing Officier estimated the net profit at 12% and no separate deduction for depreciation was granted from such net profit. Aggrieved, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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