ORDER
SHEET IN THE HIGH COURT AT CALCUTTA Special Jurisdiction (Income Tax) ORIGINAL SIDE ITAT No.143 of 2014 G.A.No.2755 of 2014 COMMISSIONER OF INCOME TAX, ASANSOL Versus KUMUD RANJAN BANERJEE BEFORE: The Hon'ble JUSTICE SOUMITRA PAL The Hon'ble JUSTICE DEBANGSU BASAK Date : 12th September, 2014.
Md.Nizamuddin, Advocate Mr.Ananda Sen, Advocate The Court : G.A.No.2753 of 2014: This is an application for condonation of delay in preparing and filing the appeal.
The delay is of 115 days.
The causes shown in the application are accepted as sufficient.
G.A.No.2753 of 2014 is allowed.
The delay in filing the appeal is condoned.
G.A.No.2755 of 2014: This appeal under section 260A of the Income Tax Act, 1961 is directed against the order dated December 10, 2013 passed by Income Tax Appellate Tribunal ‘C’ Bench, Kolkata in ITA No.1503/Kol/2011 on the following questions: “ i) Whether on the facts and in the circumstances of the case, the learned Tribunal has erred in law in not admitting the appeal of the revenue on the ground of delay of 31 days and in refusing to condone the delay ?.
ii) the Whether on the facts and in the circumstances of the case, learned Tribunal has erred in law in not condoning the inadvertant delay by disregarding that refusal to condone the delay resulting a meritorious case being thrown out at the very threshold and cause of justice being defeated as held by the Hon'ble Supreme Court in case of Collector Land Acquisition, Anantnag & Anr.
–versus Ms.Katiji (SC) 167 ITR471?.
iii) Whether on the facts and in the circumstances of the case, the learned Tribunal has erred in law in holding that the appeal could not be admitted because of delay by disregarding the law laid down by the Supreme Court that when substantial justice and technical consideration 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 none deliberate delay as held in the case of Collector Land Acquisition, Anantnag & Anr.
–versus Ms.Katiji (SC) 167 ITR471?.
iv) the Whether on the facts and in the circumstances of the case, learned Tribunal has erred in law in not condoning the inadvertant delay by not considering the huge stakes in the case and not applying the ratio laid down by the Hon'ble Supreme Court in the case of CIT –versus West Bengal Infrastructure Development Finance Corporation LTD.334 ITR269(SC).” We are considering the present appeal only on Question No.(i).By the order impugned, the Tribunal did not admit the appeal before it on the ground that no explanation for the delay was shown to it.
The delay in preferring the appeal before the Tribunal was of 31 days.
Mr.Nizamuddin for the appellant relies upon a judgment of the Supreme Court, reported in 334 ITR269(CIT –versus West Bengal Infrastructure Development Finance Corporation Ltd.).Mr.Ananda Sen for the respondent relies upon a judgment of the Supreme Court, reported in (2012) 3 SCC563(Postmaster General & ORS.versus Living Media India LTD.& Anr.) and submits that the present appeal should not be admitted.
He submits that the view expressed by the Supreme Court in Postmaster General (supra) was reiterated by the Supreme Court in the case reported at 46 GST415(State of U.P.versus Amar Nath Yadav).We have heard the learned advocates for the parties.
We have perused the order impugned.
In paragraph-4 of the order impugned, it is recorded that the file with regard to the case was lying with Commissioner of Income Tax for more than two months.
This fact is not disputed.
The ratio of West Bengal Infrastructure Development Finance Corporation LTD.(supra) requires that the cases should be examined on merits and that the cases should not be disposed of mainly on the ground of delay when huge stakes are involved.
We find from the order impugned that the stakes involved herein are substantial.
Applying the ratio of West Bengal Infrastructure Development Finance Corporation LTD.(supra) and since an explanation was given by the appellant with regard to the delay, we consider it appropriate that the Tribunal ought to have condoned the delay of 31 days in admitting the appeal.
Further, Postmaster General (supra) and State of U.P.(supra) are of the view that the delay in preferring an appeal can be explained and when such explanation is given, such appeal ought to be admitted.
In the facts of the case, we find that adequate reasons were given before the Tribunal as to the delay in preferring the appeal.
We, therefore, set aside the order impugned.
We condone the delay in preferring the appeal before the ITAT and request the ITAT to hear and dispose of the appeal on merits.
In view of the above discussions, Question No.(i) is answered in the affirmative and in favour of the appellant.
The other questions need not be answered as the same are consequential to the question already answered.
(SOUMITRA PAL, J.) (DEBANGSU BASAK, J.) km AR(CR)