TMI Blog1994 (12) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee-firm explained that as of practice and procedure certain number of liquor both say 20% of the total requirement was supplied by the distillery against payment of Rs. 2 per empty bottle and the rest of the required number of empty bottles was used to be supplied by the assessee. At times it was not possible for the assessee to supply the required number of empty bottles to the distillery and in that case the distillery supplied extra bottles to the assessee-firm, and the deficiency, if any, used to be made good to the distillery at the time of final settlement of the account. It was further submitted that at times the consumers used to bring back empty bottles to the 53 retail shops run by the assessee-firm and such bottles used to be purchased by it at the rate of Re. 1 per bottle. The AO summoned the record of the distillery and also examined the Manager Shri Vishal Singh Shekhawat. Shri Shekhawat told that the procedure followed at the distillery was that 20% of the empty bottles, involved in the sale to be made to the assessee, used to be supplied to the assessee by the distillery @ Rs. 2 per bottle and the rest of the 80% empty bottles were supplied by the assessee itself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the delay caused in filing the appeal late was satisfactorily explained by the assessee. Mr. Jain explained that Sri H. K. Ojha, Advocate, who had conducted assessee's appeal and prepared papers to be filed in the Tribunal, had duly sent the necessary documents to Sri Panna Lal Jain, the then Accountant of the assessee at Jaipur, but the said accountant by one reason or the other did not receive such papers which appeared to have gone to the hands of other liquor contractors who forgot to deliver the same to Sri Panna Lal or to a partner of the assessee-firm. It was further submitted that as soon as the assessee came to know of the non-filing of the appeal in the Tribunal, it filed the appeal on 16-6-1994 along with an application praying for condonation of delay. In this behalf, Sri Jain referred to the affidavits of S/Shri A.K. Ojha, Advocate and Panna Lal Jain, Accountant and further submitted that in the matter of condonation of delay the courts are expected to take a liberal view and should not shut the doors of justice upon the aggrieved persons. In this behalf Shri Jain relied upon the decision of Collector Land Acquisition v. Mst. Katiji [1987] 167 ITR 471 (SC), wherein in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the matter of condoning delays the courts should adopt a liberal attitude. The main duty entrusted to the courts is to decide the disputes between the parties on merits and finally and, therefore, procedural sins should not result in loss or death of the rights of the parties. The doors of justice should not be shut on the parties for their non-deliberate and unintentional lapses or defaults committed under circumstances which are beyond their control. Efforts should be made to settle their disputes after hearing them. But at the same time, no party should be allowed to take benefit of his own faults to the disadvantage or at the cost of his adversary as it is likely to frustrate the very object of administration of justice. It is, therefore, necessary for doing justice between the parties that where an authority is vested with the discretion to do an act either way it should exercise such discretion judicially and not arbitrarily. A discretion exercised judicially leads to just decisions, promotes authority of law and establishes rule of law, a discretion exercised arbitrarily leads to miscarriage of justice and causes erosion in the very system of administration of justice. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is further submitted that we have applied for the certified copy to the CIT(A), Range-III, Jaipur who is at present having jurisdiction of Churu Bkr. Range on 9-6-1994, but the ld. CIT(A) has expressed her inability to supply the certified copy as the record is not available. Therefore, we are filing the appeal with the photo copy of the order of the ld. CIT(A) with the humble pray that under these circumstances, when the record is not traceable, the appeal may please be directed to take on record. Submitted accordingly, Yours faithfully, Sd/ (S. K. Jain) Encl : As above Authorised Advocate." This application was not supported with the affidavit of any person. On 2-7-1994, the assessee moved another application which reads as under : "Before the ITAT, Jaipur Bench, Jaipur Re: In M/s Birbal Khan Chandan Khan Party v/s ITO Assessment year: 85-86 Appeal against order u/s 143(3) ITA No. 1382/JP/94 Application for condonation of delay Hon'ble Sirs, It is submitted that the above appellant-firm has filed the second appeal against the order of the CIT(A), dated 16-2-1989 in appeal No. 2/88-89 on 16-6-1994 along with an application for condonation of de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of CIT(A) in appeal No. 2/88-89, dated 6-12-1989 to Jaipur well within time. 5. That the appeal papers were sent to one Shri Panna Lal Jain on the address of office of the then liquor contractors of Jaipur for delivery to the partner of M/s Birbal Khan Chandan Khan and Party available at Jaipur. What has been stated above is true to the best of my knowledge and belief. Nothing has been concealed. God may help me. Sd/ (HARI KISHAN OJHA) ROUND SEAL ATTESTED Dt. 15-6-1994 CENTRAL NOTARY, BIKANER (RAJ.) (INDIA) " Then again an application was filed on 26-7-1994 which runs as under :--- "Before the Income-tax Appellate Tribunal, Jaipur Bench, Jaipur. Re: In M/s Birbal Khan Chandan Khan and Party VS. Income-tax Officer ITA No. 1382/JP/94-A.Y. 85-86 Appeal against order u/s 143(3) Hon'ble Sir, We have applied for condonation of the delay of the above appeal along with the affidavit of Shri H.K. Ojha, Advocate. However, the affidavit of Shri Pannalal Jain could not have been submitted earlier because of death of his mother. Therefore, we are enclosing herewith an affidavit of Shri Pannalal Jain, the Accountant. This affidavit may please ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal and the same came up for hearing on 29-4-1994. On 29-4-1994, the hearing was adjoined to 19-5-1994 on assessee's request. On 19-5-1994, assessee filed paper book in the penalty appeal and as the D/R prayed for time for verification of the documents filed by the assessee, the hearing was adjoumed to 9-6-1994. On 9-6-1994 when the penalty appeal came up for hearing, the Bench enquired of the parties as to what happened on quantum side. It was on such query from the Bench that the ld. counsel for the assessee told the Bench that the assessee intended to file the second appeal on quantum side with prayer for condonation of delay. This state of affairs does not suggest that the assessee had ever flied the quantum appeal before the query was made by the Bench on 9-6-1994. 14. Be that as it may, coming to the merits of the condonation application, it is noticed that it nowhere states as to when the order appealed against was communicated to the assessee and when the appeal was prepared and sent by Shri H.K. Ojha to Jaipur and to whom. It is in the second application, dated 2-7-1994 that it is stated that Shri H.K. Ojha, Advocate had sent the appeal papers to one Shri Panna Lal J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ently reasonable. It would not be any sort of assertion that would amount to sufficient cause and would justify the condonation of delay. The cause pleaded must fit in the facts and circumstances of the given case and the explanation offered regarding the delay occasioned by such cause should appeal to reasons so as to get judicial approval. 17. In the instant case neither the very existence of sufficient cause is established nor the delay alleged to have occasioned from such a cause satisfactorily explained. It is not the delay of one minute or one hour and also not of one day, one month or even one year that was required to be explained in this case but a delay of more than four years. And this inordinate delay has remained totally unexplained. The facts and circumstances of the case go to speak that it was after the query made by the Bench on 9-6-1994 in the course of hearing the penalty appeal of the assessee for this very year that the assessee thought of filing this second appeal on quantum side. The provisions contained in sub-sec. (5) of sec. 253 no doubt sufficiently authorise this Bench to condone the delay in filing the appeals, but we fail to over-look the inordinate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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