TMI Blog2010 (3) TMI 1119X X X X Extracts X X X X X X X X Extracts X X X X ..... osition under the general law, and there is nothing in the provisions of Act, which enacts a different principle. Therefore, the contentions relating to preliminary issues are open to consideration at the time of the hearing of the appeal, and that the jurisdiction of the CIT(A) is not limited to the hearing of the appeal on the merits of the assessment only. In this view, the orders of the CIT(A) holding that there were no sufficient reasons for excusing the delay and rejecting the appeals as time-barred would be orders passed u/s 250 and would be open to appeal, and it would make no difference in the position whether the order of dismissal is made before or after the appeal is admitted. It is well established that rules of limitation pertain to the domain of adjectival law, and that they operate only to bar the remedy but not to extinguish the right. An appeal preferred in accordance with section 30(1) of the 1922 Act must, therefore, be an appeal in the eye of law, though having been presented beyond the period mentioned in section 30(2) it is liable to be dismissed in limine. Therefore, it must be held that an appeal presented out of time is an appeal, and an order dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia Ltd., Vs. JCIT,[ 2006 (2) TMI 142 - MADRAS HIGH COURT] wherein on identical set of facts, affidavit filed by the Director of the assessee company for the delay in filing the appeal, the delay was condoned. Since the matter has been sent back to the file of the CIT(A) on the first ground of appeal itself, therefore, we do not express any opinion on merit of the case. We remit the matter back to the file of the CIT(A) and the CIT (A) is directed to condone the delay and decide the appeal on merit after providing reasonable opportunity of being heard to both the sides. Appeal of the assessee is allowed. - SHRI R.K. GUPTA, J.M. AND SHRI A.L. GEHLOT, A.M. For the Appellant: Mr. A.V. Sonde For the Respondent: Mr. R.N. Jha ORDER PER A.L. GEHLOT, A.M.: This appeal filed by the assessee is directed against the order of CIT(A)- XIX, Mumbai, passed on 13th August, 2008 for the assessment year 1999-2000, wherein the assessee has raised the following grounds of appeal:- 1. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in holding the delay in filing the appeal cannot be condoned. The appellant prays that the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 147 on 31.03.2005. An appeal also filed against that order, which has been disposed off by the CIT(A) vide order dated 14.11.2005. During the appellate proceedings before the CIT(A), the assessee engaged new AR, who was scrutinized the papers and advised to file this appeal before the CIT(A). It was also affirmed that the delay in filing of appeal from is attributable to the earlier AR, M/s Rajesh Rajeev Associates who failed to inform the appellant company, the necessity of filing appeal against the disallowance made in the original assessment order u/s 143(3) of the Act. 4. The learned AR submitted that delay in filing appeal due to mistake of counsel that itself is sufficient cause for condonation of delay. He relied upon the judgment of the Apex Court in the case of Concord of India Insurance Co. Ltd. V. Smt. Nirmala Devi and Others, [1979] 118 ITR 507(SC) wherein the Apex Court held that the law is settled that mistake of counsel may in certain circumstances be taken into account in condoning the delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground. It is always a question whether the mistake was bona fide or was m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d DR further submitted that the reasons for delay in filing of appeal cannot be made but they must be existed and the assessee did not furnish the reasons for such delay. Without prejudice to the above, the learned DR further submitted that reason has to be sufficient and proper reasons. Mere filing of affidavit of staff does not constitute sufficient evidence. The learned DR further submitted that the decision of not filing appeal is the decision of the assessee and not the decision of the AR. The learned DR submitted that decisions cited by the learned AR are distinguishable on facts. The learned DR in support of his contentions relied upon the following judgments:- i. JCIT Vs. Tractors Farm Equipments Ltd., [2007] 104 ITD 149 (Chennai)(TM). ii. V. Hemraj Onkarji Mali, [2009] 311 ITR (AT) 416 (Indore). Iii Madhu Dadha Vs. ACIT, [2009] 317 ITR 458 (Mad.) 7. In the rejoinder, the learned AR submitted that the ITAT has power to admit appeal dismissed in limine by CIT(A), for which he relied upon the judgment of Hon ble Supreme Court in the case of Mela Ram and Sons v. Commissioner of Income-tax reported in 29 ITR 607(SC). It is also the submissions of the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of dismissal is made before or after the appeal is admitted. 8.1 The supreme court in case of Meal Ram Sons V. Commissioner of Income-tax, [1956] 29 ITR 607(SC) resolved the judicial conflict. The facts in brief of that case were that for the relevant assessment years, the ITO assessed the income of appellant firm and issued a notice of demand on account of income-tax and super-tax. The appellant preferred an appeal against the assessment, and it was actually received in the office of the AAC out of time. But the appeal was registered and notice of hearing under section 31 of the 1922 Act was issued. The appellant prayed for condonation of the delay on the ground that following on the partition of the country the conditions were very unsettled and that curfew order had been promulgated and was in force, that the post office did not accept registered letters and that the traffic on the road was closed, and that in view of those exceptional circumstances, it had sufficient cause for not presenting the appeals in time. At the hearing, the AAC passed orders holding that there was no sufficient ground for condoning the delay, and rejected the appeal in limine. On further appeal, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in conferring a right of appeal under section 30(1) and prescribing a period of limitation for the exercise thereof separately under section 30(2), the legislature has envinced an intention to maintain the distinction well-recognised under the general law between what is a substantive right and a procedural law. Therefore, it must be held that an appeal presented out of time is an appeal, and an order dismissing it as time-barred is one passed in appeal. Section 31 of the 1922 Act is the only provision relating to the hearing and disposal of appeals, and if an order dismissing an appeal as barred by limitation is one passed in appeal, it must fall within section 31. And as section 33 confers a right of appeal against all orders passed under section 31, it must also be appealable. Thus the law laid down by the Apex Court in the case of Meal Ram Sons V. Commissioner of Income-tax, [1956] 29 ITR 607(SC) is that an appeal presented out of time is an appeal, and an order dismissing it as time barred is one passed in appeal and that section 250 of Income Tax Act 1961(Section 31 of the Act 1922) should be liberally construed so as to include not only orders passed on a consideration o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome as an infamous power created by positive law to decrease litigation and encourage dishonest defenses . This may not be wholly true but still the limitation vests a definite right in a party after a lapse of period prescribed under law. It interposes a statutory bar after a certain period giving quietus to the rights arising from a judgment which is sought to be impugned. In other words, the law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae ut sit finis litium (it is for the general welfare that a period be part to litigation). The very scheme of proper administration of justice pre-supposes expediency in disposal of cases and avoidance of frivolous litigation. Where the parties chose to sleep over their rights for prolonged periods without any just cause, can hardly claim equity in justice particularly faced with the statutory provisions of Section 5 of the Act. In construing enactments which provide period of limitation for institution of proceedings, the purpose is to intimate people that after lapse of certain time from a certain event, a proceeding will not be entertained where a strict grammatical construction is normal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Others 167 ITR 471 (SC) as under:- (Pages 472) The Legislature has conferred the power to condone delay by enacting section 51 of the Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on de merits . The expression sufficient cause employed by the Legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice that being the life-purpose of the existence of the institution of courts. It is common knowledge that the court has been making a justifiably liberal approach in matters instituted in this court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that: 1. Ordinarily, a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words sufficient cause under section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain V. Kuntal Kumari, AIR 1969 SC 575 and State of West Bengal V. the Administrator, Howah Muni-capacity, AIR 1972 SC 749. 8.6 Now we would like to go through the cases relied upon by the learned DR. The case of JCIT Vs. Tractors Farm Equipments Ltd., [2007] 104 ITD 149 (Chennai)(TM) is distinguishable on facts as in that case, the delay was not condoned by the ITAT on the ground that as the delay was due to negligence and in action on the part of the assessee and the assessee could have very well avoided the delay by exercis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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