TMI Blog2022 (5) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... is a minor delay of 43 days, for which, in our view, the assessee has given a plausible explanation. In the assessment framed on the assessee, Ld. Assessing Officer has made a huge addition of 33,00,000/- as undisclosed income in the hands of the assessee. The assessee, in our view, should not be precluded an opportunity of hearing merits, simply on account of a delay of mere 49 days in filing appeal. Appeal of assessee allowed. - ITA No. 1459/Ahd/2019 - - - Dated:- 29-4-2022 - Shri Waseem Ahmed, Accountant Member And Shri Siddhartha Nautiyal, Judicial Member For the Assessee : None For the Revenue : Shri V.K. Singh, Sr. D.R. ORDER PER : SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER:- This is an appeal filed by the assessee against the order of the ld. Commissioner of Income Tax (Appeals)-5, Ahmedabad in Appeal no. CIT(A)-5/ITO Wd.5(1)(1)/10682/2018-19 vide order dated 23/07/2019 passed for the assessment year 2011-12. 2. The assessee has raised following grounds of appeal:- 1. That Lrd CIT(A)-5, Ahmedabad has erred in law in rejecting delay Condon application filed by the appellant which has not been done in right perspective therefore, considering the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eived the order u/s.147 r.w.s. 144 on 03.01.209. The contention of the appellant that he was misguided by the Chartered accountant is not supported with any evidence has not tenable. It is well settled law that delay in filing the appeal can be condoned if there is a reasonable and sufficient cause which prevented the assessee to file the appeal within the stipulated time . In the instant case, the appellant failed to show any reasonable or sufficient cause which has prevented him to file the appeal within stipulated time. 3.3 There are various judicial pronouncements which laid down the principle for condonation of delay. The basic essence of all the judgment says that delay should not be malafide and there should not be any negligence on the part of the appellant. Some of the decisions are relied upon are as under: .. 3.4 In view of the above judicial pronouncements, the basic principle emerges that me delay should be bonafide and there should not be any negligence on the part of the appellant. However, in the appeal under consideration, the appellant has taken the vague and unsupported plea for the delay and which is not verifiable from the records. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. The Apex Court further held that when substantial justice and technical considerations are pitted against each 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. 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. 6. The Supreme Court in N. Balakrishnan v. M. Krishnamurthy 2008 (228) ELT 162 , while condoning the delay of 883 days in filing an application for setting aside the ex parte decree held That the purpose of Limitation Act was not to destroy the rights. It is founded on public policy fixing a life span for the legal remedy for the general welfare . The primary function of a Court is to adjudicate disputes between the parties and to advance substantial justice. The time limit fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation. Such reasoning should be to the satisfaction of the Court. In the instant case, on account of earthquake and ill health of his wife, the assessee had been facing many problems, simultaneously. According to him, order under section 154 was served upon him at the old address. That communication had also consumed time. Therefore, the assessee could not gain anything by filing the appeal late. There was no mala fide imputable to the assessee. The delay in filing the appeal was the result of ill health coupled with the change of his address thrice in a short span. In every case of delay there can be some lapse of the litigant concerned. That alone is not enough to turn down the plea and to shut the doors against him. If the explanation does not smack of mala fide or it is not put-forth as a part of dilatory strategy, the Courts must show utmost consideration to such litigant. At the most for the inaction or a little negligence, the assessee could be burdened with the cost. But his right of hearing of the appeal on merit ought not to be shut. Therefore, the delay in filing the appeal before the Commissioner (Appeals) was condoned and the matter restored to the first appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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