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TMI Blog2024 (1) TMI 945X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee has filed an application and thereafter in the paper book filed an affidavit. The stand of the assessee is that he is 71 years and partner in the partnership firm named Kargalighat C.S. Shop. He has engaged an Advocate, namely Shri Ashok Kumar Chandra of Purulia and Shri Udayan Dasgupta, Advocate of Asansol. The records were with them and they have not attended the proceeding beyond the understanding of the assessee. The appeal has been decided ex-parte for want of prosecution without deciding the issues on merit. When assessee came to know about the orders, then, he immediately collected the papers and filed the appeal before the Tribunal. 3. The ld. D.R., on the other hand, contended that the assessee failed to appear before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter 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. 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 common sense pragmatic manner. 4. 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. 5. There is no presumption that delay is oc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... troy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi lain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]. It must be reme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er are required to be challenged otherwise he cannot be absolved from the tax liability. It appears there is some bonafide mistake for not appearing before the lower authorities and filing the appeal well in time. Apart from the above, we are going to comment on the merits and how ld. Assessing Officer has framed the assessment order. Thus in our opinion, the delay in filing the appeal deserves to be condoned. We accordingly condone the delay and proceed to decide the appeal on merit. 8. Before proceeding further, we would like to take note of the complete assessment order, which is a non-speaking and sketchy one. It reads as under:- "Return of income for the A.Y. 2011-12 was electronically furnished on 20.03.2017 disclosing total income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3140 it was found that there is a closing balance of cash in hand is Rs. 24,00,490/- but on the perusal of ITR the above mentioned cash in hand was not shown. A show cause notice was issued to the assessee on 06.09.2018 to explain the source of cash in hand but till date the assessee neither submitted any documents requisitioned u/s. 142(1) nor submitted any reply of show cause notice, hence assessment order is being passed u/s. 144 of the IT Act 1961 Thus the above closing balance amount (expenses) is treated as Cash credit u/s. 68 of the IT Act 1961 and added back to the total income. Penalty u/s. 271(1)(c) is initiated on this issue for concealment of income. 4. Copy of order, penalty notice and demand notice is issued to the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further found that the ld. 1st Appellate Authority has also again not appreciated any of these circumstances but dismissed the appeal for want of prosecution. 10. During the course of hearing, ld. D.R. submitted that since the assessee failed to give any explanation and it is an ex-parte order, then, let the issue be set aside again to the file of ld. Assessing Officer. 11. On due consideration of the facts and circumstances, we are of the view that no doubt in a best judgment, element of assumption will always be invoked, but that estimation could not be yield one and it cannot be used as a tool to punish the assessee. The ld. Assessing Officer is supposed to collect information from the surroundings of the assessee and thereafter forme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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