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2017 (4) TMI 761 - ITAT MUMBAI

2017 (4) TMI 761 - ITAT MUMBAI - TMI - Delay in filing an appeal before the CIT(A) - Condonation of delay - Held that:- there should be pedantic approach and the doctrine that is to be kept in mind that the appeal has to be deal with rational common sense and the cause of substantial justice must be kept in mind. We are also aware that the substantial justice must be preferred over the technical consideration. We may also observed that the appellant/assessee is not going to gain in approaching t .....

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vide the assessee an opportunity of hearing on merit, we deem it appropriate to accept the appeal of assessee. We further order to condone the delay in filing the appeal before the ld. CIT(A). - Matter restored before the CIT(A) - Decided in favor of assessee. - ITA No.4195/Mum/2016 - Dated:- 24-2-2017 - SHRI D.KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER For The Assessee : Shri B. N. Rao (AR) For The Revenue : Shri Sambit Mishra (DR) Order Under Section 254(1) of .....

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ing to file the present appeal are that the assessee filed appeal before the ld. CIT(A) challenging the various additions and disallowance made by Assessing Officer (AO) in assessment order under section 143(3) dated 27.02.2015. The assessee filed the appeal beyond the prescribed period of time. There was delay of 265 days in filing appeal before ld CIT(A). The delay was not condoned by ld CIT(A), consequently the appeal was not admitted. Thus, aggrieved by the order of ld. CIT(A), the present a .....

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First Appellate Authority (FAA) and that the assessee was not aware about the technicalities of filing appeal within the prescribed period of limitation. The assessee came to know about the assessment order for AY 2012-13 only when the AO during the assessment proceeding for AY 2013-14, the AO enquired about the assessment order of previous year. The assessee thereafter, contacted his previous C.A. and collected the order from previous C.A. and thereafter, the appeal was filed before the ld. CI .....

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that assessee was required to explain the delay of each and every day. The assessee was failed to explained the delay before the ld. CIT(A). Thus, ld. CIT(A) has rejected the contention of assessee for condoning the delay in filing the appeal.. The ld. DR for the Revenue further argued that despite the direction of the Court, the assessee is not file his own affidavit or affidavit of C.A. who represented the assessee before the AO or who had allegedly collected the order directly from the offic .....

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d that the assessment order was collected by his previous representative on 09.03.2015. His representative did not inform him nor advise him to file the appeal. The assessee was not well-versed with the tax law. The assessee came to know about the assessment order for AY 2012-13 during the assessment proceeding for AY 2013-14, when the AO enquired about the order for previous AY. The contention of assessee was not accepted by ld. CIT(A) holding that it was a responsibility of the assessee to fil .....

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see or the C.A. is not file before the Tribunal. The ld. AR of the assessee fairly conceded that due to social relation with the C.A., the assessee has not made any complaint or asked him to give affidavit against his negligent Act. 5. We are conscious that the law of limitation is Substantive Law and it has defined consequences on the right and obligation of the parties. The provisions and the principle contained in the law of limitation should be adhered by the parties in its strict sense as p .....

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, for the courts are not supposed to legalize injustice but are obliged to remove injustice. ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation. iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. iv) No presumpt .....

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ept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted, That, apart, the first one warrants strict approach whereas the second calls for a liberal delineation. ix) The conduct, behaviour and attitude of a party relating to its i .....

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It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation, xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception, xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. Further, the .....

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y subjective. c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. . d) The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters. 6. From the legal pos .....

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