TMI Blog2012 (7) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Section 254(1) provides wide powers to the Tribunal for passing such orders thereon as it thinks fit in the interest of justice.As the assessee has discharged the huge tax liability and as a proof the assessee filed a copy of challan it would be totally unfair for not providing an opportunity to her for disputing the additions made by the AO on merit - in favour of assessee. - IT Appeal No. 2075 (Hyd.) of 2011 - - - Dated:- 30-4-2012 - Chandra Poojari, Saktijit Dey, JJ. S. Rama Rao for the Appellant. B.V. Prasad Reddy for the Respondent. ORDER Chandra Poojari, Accountant Member This appeal filed by the assessee is directed against the order of the CIT(A)-I, Hyderabad dated 30.8.2010 for the assessment year 2008-09. 2. Effective grounds of the assessee in this appeal read as follows : 1. The order of the learned Commissioner of Income-tax(Appeals) is erroneous, unjust and contrary to the facts of the case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... '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 Collector, Land Acquisition v. Mst. Katiji [1987] 167 ITR 471 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 us. It is aptly said that facts should be viewed in a natural perspective having regard to the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 in the case of D.S. Karunakar Reddy v. Dy. CIT , it is a curable defect, and till such time admitted tax is paid the appeal remains defective and not valid, and when such defect is cured by payment of tax on the returned income by the assessee, the appeal becomes valid, and such valid appeal is deemed to have been filed. That being so, delay in the filing of the appeal has to be reckoned till the date the appeal is made valid by the assessee by making payment of admitted tax on returned income, and if there is reasonable cause for the delay in the payment of admitted tax, the delay may be condoned, and the appeal may be disposed off on merits. In the instant case, the assessee has admittedly paid the taxes on the returned income, only on 8.12.2011, before filing the present appeal before the Tribunal. The reason for the delayed payment of admitted tax on returned income is stated to be the absence of proper advice by the Chartered Accountant of the assessee. 7. It is an 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch 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." 9. Then again this expression fell 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. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. 11. On perusal of record, we find that the assessee has discharged the huge tax liability on 8.12.2011 at Rs. 3,07,544 and as a proof the assessee filed a copy of challan from Central Bank of India, Gudimalkapuram Branch, Hyderabad. Thus, it would be totally unfair for not providing an opportunity to her 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 associa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 17. Now that the assessee has paid the admitted taxes on the returned income, we set aside the impugned order of the CIT(A), and restore the matter to the file of the CIT(A) to adjudicate the appeal before him on merits. He shall give reasonable opportunity of hearing to the assessee, and dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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