TMI Blog2019 (9) TMI 914X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal is bound to remove the injustice by condoning the delay on technicalities. If the delay is not condoned, it would amount to legalising an illegal order which would result in unjust enrichment on the part of the State by retaining the tax relatable thereto. Under the scheme of Constitution, the Government cannot retain even a single pie of the individual citizen as tax, when it is not authorised by an authority of law. Therefore, if we refuse to condone the delay, that would amount to legalise an illegal and unconstitutional order passed by the lower authority. Therefore, in our opinion, by preferring the substantial justice, the delay of 1038 days has to be condoned. There is no question of any excessive or inordinate when the reason stated by the assessee was a reasonable cause for not filing the appeal. We have to see the cause for the delay. When there was a reasonable cause, the period of delay may not be relevant factor. In case the delay was not condoned, it would amount to legalise an illegal and unconstitutional order. The power given to the Tribunal is not to legalise an injustice on technical ground but to do substantial justice by removing the injustice. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 16,48,792/-. 2. The assessee has raised the following grounds of appeal: 1. The order of the Commissioner of Income Tax (Appeals) - IV, Kochi, in ITA No.346/CIT(A)-IV/2015-16 dated 31.03.2016 for the Assessment Year 2008-09, is opposed to law, facts and circumstances of the case. 2. The CIT(A) went wrong in confirming the additions of ₹ 93,56,364/- for the Assessment Year 2008-09. 3. The appellant respectfully submits that the enhancement of the sales turnover from ₹ 2,00,49,352/- to ₹ 6,68,31,173/-, is also arbitrary. The above estimate is purely on a mechanical basis by multiplying the declared turnover applying a formula of 100/30, which has resulted in estimation of suppressed turnover of ₹ 4,67,81,821/-. Absolutely, no material is brought on record or referred to, in order to apply the formula of 100/30 pertaining to the appellant's business, which is different and separate from other business concerns, whose turnover and profits are referred to. 4. It is respectfully submitted that the estimate of profit at 20% of the suppressed turnover is also arbitrary and ill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble Income Tax Appellate Tribunal, Cochin Bench, may kindly be pleased to set aside the addition of ₹ 93,56,364/- made by the Assessing Officer and sustained by the CIT(A), allow the appeal and render justice. 3. There was a delay of 1038 days in filing the appeal before this Tribunal. The assessee has explained the reasons for the delay by way of affidavit as follows: 1. I am the proprietrix of the petitioner firm in the above appeal. I am acquainted with the facts of the case. I am authorized and competent to swear to this affidavit. 2. The petitioner herein is the appellant in the accompanying appeal and petitioner in the petition for condonation of delay, for the Assessment tear 2008-09. The appeal is filed against the common order dated 31.03.2016 in I.T.A. No.346/M/CIT(A)-lV/Kochi/2015-16 and connected appeal passed by the ClT(A)-lV, Kochi. 3. The appeal filed by the petitioner before the Commissioner of Income Tax(Appeals)-lV, Kochi, vide I.T.A. No.346/ClT(A)-lV/Kochi/2015-16, was disposed of by order dated 31.03.2016. The appeal was heard on 28.03.2016 and represented by the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner is advised to file this second appeal, though belatedly, so as to contest the appeal before the Appellate Tribunal and to bring consistency. Accordingly, this second appeal is filed. Compared to the date of service of the Appellate order, now impugned in this appeal, there is a delay of . days, which has occurred unintentionally and without the knowledge of the petitioner. There is no willful omission or neglect on the part of the petitioner. 6. The delay is not intentional or willful, but due to reasons beyond control. The petitioner would suffer great hardship, prejudice and monetary loss, if the delay is not condoned and the appeal decided on merits. The petitioner has raised very valid grounds in the Memorandum of Appeal and there is reasonable chance of success in the appeal. The petitioner is unable to pay the unbearable demand. In such circumstances, if coercive action is taken, it would cause serious hardship, prejudice and mental agony to the petitioner. In the above facts and circumstances of the case, the petitioner humbly prays that the Appellate Tribunal, Cochin Bench, Cochin, may be pleased to condone t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) Refusing to condone delay can result in a meritorious matter being thrown 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. (3) 'Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational, commonsense and pragmatic manner. (4) When substantial justice and technical consideration are pitted against each other, the 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 the judiciary is respected not on account of its power to legalise injustice on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urthermore, the Chennai Tribunal by majority opinion in the case of People Education and Economic Development Society (PEEDS) v. ITO (100 ITD 87) (Chennai) (TM ) condoned more than six hundred days delay. It is pertinent to mention herein that the view taken by the present author in that case was overruled by the Third Member. 4.3 The Madras High Court in the case of Sreenivas Charitable Trust (supra) held that no hard and fast rule can be laid down in the matter of condonation of delay and the Court should adopt a pragmatic approach and the Court should exercise their discretion on the facts of each case keeping in mind that in construing the expression sufficient cause the principle of advancing substantial justice is of prime importance and the expression sufficient cause should receive a liberal construction. Therefore, this Judgment of the Madras High Court (supra) clearly says that in order to advance substantial justice which is of prime importance, the expression sufficient cause should receive a liberal construction. Therefore, for the purpose of advancing substantial justice which is of prime importance in the administration of justice, the expressi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, the delay of 1038 days has to be condoned and the appeal of the assessee has to be admitted and disposed of on merit. 4.6 In view of the above, we condone the delay of 1038 days in filing the appeal and admit the appeal for adjudication. 5. Coming to the merit of the issue of addition of ₹ 93,56,364/- on account of estimation of G.P., it is pertinent to mention herein that a similar issue came up for consideration before this Tribunal in the Sunny Jacob Jewellers Group cases in ITA Nos. 314 to 319/Coch/2016, 341 to 344/Coch/2016, 320-321/Coch/2016, 324/Coch/2016 and 371 372/Coch/2016 wherein the Tribunal vide order dated 10/10/2018 decided the issue against the assessee. In our opinion, there is no error in the estimation of income of the assessee on the basis of the seized records. The estimation of income by the Assessing Officer is based on the documents found during the search and statement recorded during the course of search. Being so, the Assessing Officer is completely justified in adopting those figures for the whole year and for the next year. For this proposition, reliance is placed on the judgment of the Jurisdictional High ..... X X X X Extracts X X X X X X X X Extracts X X X X
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