TMI Blog2023 (1) TMI 646X X X X Extracts X X X X X X X X Extracts X X X X ..... procedural requirement cannot be made hindrance in affording justice. The assessee who filed appeal within the time limit in paper form in our considered cannot be deprived of justice merely for the reason to comply with newly brought procedural requirement. In holding so, we find support and guidance from the judgment of Hon ble Supreme Court in case of Rani Kusum vs. Kanchan Devi [ 2005 (8) TMI 709 - SUPREME COURT ] Appeal of the assessee was dismissed for procedural requirement in ex-parte order by the learned CIT(A), we set aside the finding of the learned CIT-A and restore the issue to the file of the ld. CIT-A for fresh adjudication as per the provisions of law. Hence, the ground of appeal of the assessee is allowed for the statist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall loose due to procedural technicalities. As per the Ld. AR, the assessee has meritorious case and therefore, the delay in filing the appeal should be condoned. 5. On the other hand the ld. DR opposed to condone the delay in filing the appeal by the assessee 6. We have perused the records and heard the rival submissions of both the sides. There was a delay of 874 days in filing the appeal by the assessee before ITAT. In the condonation petition, it was the explained that the order of the ld. CIT(A) was handed over to the staff namely Shri Dinesh Desai who left the organization as the assessee was facing severe financial crises. In fact, the assessee could not repay the money borrowed from Visnagar Co-operative Bank for which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in why the appeal and/or application could not be filed within the period prescribed by limitation and explain the delay for such period for the purpose of linking up the circumstances which had caused the delay during the period of limitation and thereafter. (p. 192) 5. Recently, the Allahabad High Court in Ganga Sahai Ram Swarup v. ITAT [2004] 271 ITR 512 has taken the view that liberal view ought to have been taken by the authority as the delay was only of a very short period and the appellant was not going to gain anything from it. 6. Applying the ratio laid down by the Apex Court as well as various High Courts, we find, it is stated in the petition filed by the assessee for condonation of delay that the order copy was mispla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r otherwise, the CIT has the power to correct such an assessment under section 264(1) of the Act. If the CIT refuses to give relief to the assessee, in such circumstances, he would be acting de hors the powers under the Act and the provisions of the Act and, therefore is duty-bound to give relief to an assessee, where due, in accordance with the provisions of the Act. 19. In the present case, the respondent-CIT has nowhere stated that the petitioner is not entitled to the relief under section 10(10C) of the Act. In fact, the said position is undisputed. The Assessing Officer himself had passed an order under section 154 of the Act, granting such relief. In the circumstances, even the order under section 264 of the Act made on 29-3- 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Vareli textile industry versus CIT reported in 154 Taxman 33 has held as under: It is equally well-settled that where a cause is consciously abandoned (as in the present case) the party seeking condonation has to show by cogent evidence sufficient cause in support of its claim of condonation. The onus is greater. One of the propositions of settled legal position is to ensure that a meritorious case is not thrown out on the ground of limitation. Therefore, it is necessary to examine, at least prima facie, whether the assessee has or has not a case on merits. 6.5 In view of the above and after considering the facts in totality, we are of the view that it is a fit case where the delay in filing the appeal by the assessee deserves t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cution or defence in the manner for the time being by or for the Court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. (See Blyth v. Blyth (1966 (1) All E.R. 524 (HL). A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. (See Shreenath and Anr. v. Rajesh and Ors. (AIR 1998 SC 1827) Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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