TMI Blog2009 (7) TMI 728X X X X Extracts X X X X X X X X Extracts X X X X ..... Mst. Katiji [1987] 167 ITR 471 (SC) ; AIR 1987 SC 1353, Auto Centre v. State of U. P. [2005] 278 ITR 291 (All) and Income-tax Appeal No. 25 of 2004, decided on July 8, 2005, Bharat Auto Centre v. CIT [2006] 282 ITR 366 (All)." 2. With the consent of learned counsel for the parties this appeal is being heard and finally decided. 3. The present appeal under section 260A of the Income-tax Act, 1961 (hereinafter referred to as "the Act") is directed against the order of the Tribunal dated July 8, 2005 for the assessment year 2001-02, whereby the Tribunal has rejected the appeal of the appellant as barred by limitation arising out of the order of the Commissioner of Income-tax (Appeals) dated September 25, 2002. 4. The question for consideration is whether the Tribunal was justified in refusing to condone the delay and rejecting the delay as barred by limitation. 5. Assessment order under section 144 of the Act was passed by the Income-tax Officer, Ward 2(3), Meerut by order dated March 5, 2002. Aggrieved by the order dated March 5, 2002, the appellant filed an appeal on April 8, 2002 before the Commissioner of Income-tax (Appeals). The said appeal was dismissed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant has placed reliance on various decisions of this court as well as of the apex court in support of his contention, which will be dealt with in the latter part of the judgment. 7. On the other hand, learned standing counsel appearing on behalf of the Department has supported the impugned order passed by the Tribunal and has submitted that the appellant has not acted with reasonable diligence in prosecuting the appeal and no sufficient cause has been shown by the appellant for condoning the delay, therefore, no interference in the matter is warranted. He has further submitted that there was no justification for the appellant to have waited for such a long time to avail of the remedy of filing an appeal before the Tribunal. 8. Heard the learned counsel for the parties and perused the record. 9. Before proceeding to examine the rival contentions of the parties in the matter it would be useful to reproduce paragraph Nos. 2, 3 and 4 of the affidavit dated October 16, 2004 filed in support of the delay condonation application which reads as under : " (2) That being aggrieved by the order of the learned Commissioner of Income-tax (Appeals), I decided to file an appeal be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, 2002 was served on the appellant on November 18, 2002. The record of the case shows that the appellant deposited the amount of Rs. 11,550 towards statutory fees and miscellaneous expenses on December 21, 2002 in the office of the counsel and the receipt bearing No. 2325, dated December 21, 2002 was also filed before the Tribunal. A copy of the account as appearing in the ledger of M/s. Malik and Co. showing the receiving of the amount was also filed before the Tribunal and this fact has not been disputed by the Department. Therefore, in view of the aforesaid facts the filing of any affidavit of the local counsel was not required. 12. It is also noteworthy that an application under section 154 of the Act was filed against the order dated September 25, 2002 well within time. There is no reason to disbelieve the contention of the appellant, that he was advised by his counsel to file an application under section 154 of the Act for the rectification of the order dated September 25, 2002 and the pendency of the said application had caused the delay in filing the appeal before the Tribunal. The apex court in the case of State of West Bengal v. Administrator, Howrah Municipalities, AI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered . . . The law of limitation is thus founded on public policy." 17. In Smt. Prabha v. Ram Prakash Kalra [1987] (Supp.) SCC 339, the Supreme Court took the view that the court should not adopt an injustice-oriented approach in rejecting the application for condonation of delay. 18. The apex court in State of Nagaland v. Lipok Ao [2005] 3 SCC 752 has observed in para 9 of the judgment as follows (page 757) : " The proof by sufficient cause is a condition precedent for exercise of the extraordinary restriction (sic discretion) vested in the court. What counts is not the length of the delay but the sufficiency of the cause, and shortness of the delay is one of the circumstances to be taken into account in using the discretion. In N. Balakrishnan v. M.Krishnamurthy [1998] 7 SCC 123 it was held by this court that section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the court has to go in the position of the person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax 228 ; [2006] 282 ITR 366 (All) while dealing with the similar situation wherein the delay in filing the appeal before the Commissioner of Income-tax (Appeals) was caused due to the pendency of the application under section 154 of the Act has observed as follows (page 368) : " Having heard the learned counsel for the parties, we are of the opinion that the Commissioner of Income-tax (Appeals) as well as the Tribunal has taken a pedantic view while considering the application for condonation of delay. It has been consistently held by the apex court that in the matter of condonation of delay a liberal and pragmatic view should be taken. The reasons given by the appellant for the delay appears to be sufficient cause and accordingly, the delay is liable to be condoned." 21. It has been consistently held by the apex court that in matter of con- donation of delay a liberal and pragmatic view should be taken. The apex court in Ramji Dass v. Mohan Singh [1978] ARC 496 has held that as far as possible the court' s discretion should be exercised in favour of the hearing and not to shut out hearing. 22. Thus, while deciding such an application a justice oriented approach is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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