TMI Blog2019 (1) TMI 1327X X X X Extracts X X X X X X X X Extracts X X X X ..... cember 2017 referred by him. The deponent (assessee) has not done so. In the instant case the assessee has not disclosed with sufficient particularity the nature and source of knowledge. Thereby, the other side is precluded to verify it and make an effective answer. delay in filing appeal before the Tribunal - decided against assessee - ITA No. 253/MUM/2018 - - - Dated:- 18-10-2018 - Shri Pawan Singh (Judicial Member) And Shri N.K. Pradhan (Accountant Member) For the Assessee : Mr. Prateek Jha Mr. Prayag Jha, ARs For the Revenue : Mr. Rajesh Kumar Yadav, DR ORDER PER N.K. PRADHAN, AM This is an appeal filed by the assessee. The relevant assessment year is 2011-12. The appeal is directed against the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the certified copy of the Appellate Order for filing of Appeal before the Hon. ITAT. Under the circumstances the delay in filing of appeal before the ITAT was not due to any carelessness and was beyond the control of the deponent as the deponent was under perception that the appeal before CIT(A)-3 is still pending. The affidavit is required to be submitted to the Hon. ITAT to bring forth the facts of the case and to explain the delay in filing of Appeal before the ITAT. Solemnly affirmed at Mumbai this 6th day of January, 2018. The assessee vide letter dated 05.01.2018 further submits that under the circumstances, the delay in filing of appeal before the Tribunal was not due to any carelessness and it was beyond the control of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... done so. In the case of Suckwinder Pal Bipan Kumar v. State of Punjab, AIR 1982 SC 65, the Hon ble Supreme Court has emphasized regarding disclosure of source of information of affidavit that The nature and source of knowledge is to be disclosed with sufficient particularities. Affidavits will not be one as required by law if the above things are not there . In the instant case the assessee has not disclosed with sufficient particularity the nature and source of knowledge. Thereby, the other side is precluded to verify it and make an effective answer. 4.1 Let us now discuss the case-laws relied on by both sides. In the case of M/s Lahoti Overseas Ltd. (supra), relied on by the Ld. counsel of the assessee, there was a delay of 2191 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected 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. In the case of Kunal Surana (supra), relied on by the Ld. DR, the Tribunal has held that entertaining application of additional evidence pendi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o enable the courts to apply the law in a meaningful manner which subserves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate-Collector (L.A.) v. Katiji N. [1987] 2 SCC 107, N. Balakrishnan v. M. Krishnamurthy [1998] 7 SCC 123 and Vedabai v. Shantaram Baburao Patil [2001] 9 SCC 106. 4.3 Further in H. Dohil Constructions Company Private Limited V. Nahar Exports Limited, reported in 2015 1 SCC 680, the Hon'ble Supreme Court, after considering its decision in Esha Bhattacharjee v. Raghunathpur Naf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 4.4 Under section 253 of the Act, appeals have to be filed before the Tribunal, within 60 days from the date of receipt of a copy of the order of the Commissioner (Appeals). For condoning the delay in filing the appeal, it must be proved beyond doubt that the assessee was diligent and not guilty of negligence whatsoever. Due diligence and caution are the essential requirements. An examination of the affidavit at para 4 against the backdrop of the ratio laid down in the decisions rendered by the Hon ble Supreme Court extracted at para 4.2 and 4.3 hereinbefo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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