High Court Of Madras
Sreenivas Charitable Trust vs. DCIT
Section 254
Asst. Year 1988-89
P.D. Dinakaran & N. Kannadasan, JJ.
Tax Case No. 1059 of 2005
27th October, 2005
Counsel Appeared :
Philip George, for the Appellant : Muralikumar, for the Respondent
JUDGMENT
P.D. DINAKARAN, J. :
Against the order of the Tribunal in ITA No. 1025/Mds/1999, dt. 11th June, 2004, the assessee has preferred the appeal and raised the following substantial question of law : “Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in dismissing the appeal filed by the assessee as barred by limitation ?”
2. The assessee is the appellant. The assessment year involved in the appeal is 1998-99. The assessee is a charitable trust enjoying the exemption under s. 11 of the IT Act. The AO brought to tax the investments made by the assessee in M/s India Housing Finance and Development Limited in respect of which the renewal application for its approval under s. 36(1)(viii) of the IT Act was not disposed off by the CBDT. The CIT(A) upheld the action of the AO. Aggrieved by the same, the assessee preferred an appeal before the Tribunal with a petition to condone the delay of 38 days in filing the appeal. The Tribunal dismissed the appeal as barred by limitation. Hence, the assessee has come forward with this appeal.
3. The Supreme Court in Vedabai alias Vaijayanatabai Baburao Patil vs. Shantaram Baburao Patil (2002) 173 CTR (SC) 300 : (2002) 253 ITR 798 (SC) held as under : “In exercising discretion under s. 5 of the Limitation Act, the Courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard. The Court has to exercise the 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.”
4. The Calcutta High Court in CIT vs. Orissa Concrete & Allied Industries Ltd. (2003) 185 CTR (Cal) 315 : (2003) 264 ITR 186 (Cal) held as under :
“… what is really indicated in the various decisions cited and in s. 5 of the Limitation Act itself, is that a litigant would be required to explain 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.”
5. Recently, the Allahabad High Court in Ganga Sahai Ram Swarup vs. ITAT (2004) 271 ITR 512 (All) has taken the view that a 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. 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 misplaced and thereafter it was found and sent to counsel for preparing the appeal and then, the appeal was prepared and filed before the Tribunal and, in that process, the delay of 38 days occurred. As held by the apex Court, no hard and fast rule can be laid down in the matter of condonation of delay and the Courts should adopt a pragmatic approach and the Courts 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. We are, therefore, of the opinion that the Tribunal ought to have condoned the delay in filing the appeal, considering the reasons given by the assessee for the delay. Accordingly, we find that the Tribunal was not right in dismissing the appeal as barred by limitation. The delay in filing the appeal before the Tribunal is condoned. The Tribunal is directed to take the appeal on the file and dispose off the same on the merits, in accordance with law. The tax case appeal stands allowed and the question of law is answered in favour of the assessee. No costs.
[Citation : 280 ITR 357]
