Decided on October 28,1994



Vimal Gandhi, Judicial Member - (1.) THESE three appeals by the assessee for the assessment years 1984-85, 1985-86 and 1986-87 are directed against common order of CIT (Appeals) dated 18-11-1988. The office of the Tribunal pointed out that impugned order was communicated to the assessee on 20-12-1988 and appeal was filed on 6-7-1992. Consequently, there was delay of three years six months and 17 days in filing the appeal.
(2.) The assessee-applicant has sought to get the delay condoned with the following averments : The assessee has filed appeals against the orders of Commissioner of Income-tax (Appeals), Bareilly for the assessment years 1984-85, 1985-86 and 1986-87 along with this application. The order of the Commissioner of Income-tax (Appeals) was communicated to his counsel Sri Ram Ji Das on 20-12-1988. The assessee asked him to file the appeal against the said order. It is pointed out that the assessee is engaged in the business of Exports and turnover runs into Crores and so he has to live mostly out of the country. Since then, he was in the impression that the appeals have been filed by his counsel Sri Ram Ji Das. Unfortunately on 21-2-1991 Sri Ram Ji Das expired and he engaged another counsel Mr. Pradeep Kapoor, Chartered Accountant. In the meantime, appeals for the assessment years 1979-80, 1980-81 and 1982-83 were fixed by Commissioner of Income-tax (Appeals), Bareilly for hearing in May 1992, only then, the new counsel Mr. Pradeep Kapoor, checked the records and enquired about the details of other years where the same matter was involved. It was only then, that the new counsel came to understand that although assessee was in impression that the appeals on this point have been pending before ITAT, whereas the correct position was that no appeal was filed by his then counsel. The assessee has now filed these appeals with the request that the delay is not attributed to him, but it was the lapse on the part of his then counsel Sri Ram Ji Das, who was more than 80, and could not file the appeals for the reasons best known to him, and accordingly delay in filing these appeals may be condoned. We have heard both the parties. Learned counsel for assessee-applicant submitted that in the circumstances of the case as mentioned above, the delay should be condoned. He relied upon decision of Hon'ble Supreme Court in the case of Collector, Land Acquisition v. Mst. Katiji [1987] 167 ITR 471 to contend that courts must do even handed justice on merits in preference to scuttle a decision by dismissing the case as out of time. Normally when substantial justice and technical conditions are pitted against each other, the cause of substantial justice deserves to be preferred, for, the other side cannot claim to have a vested right in justice being done because of non-deliberate delay. Shri Sampath further contended that there could be no deliberate intention on the part of the assessee to delay the filing of appeal. Shri Sampath further drew our attention to appeals filed by the assessee for the assessment years 1979-80 and 1980-81 (IT Appeal Nos. 4727 & 4728/ Del./92) which were also fixed before the Bench and in which same issue was involved. The said appeals being in time, the issue was required to be considered on merit. In the above circumstances, cause of justice would be advanced if the delay is condoned and appeals are disposed of on merits. These submissions of Shri Sampath were opposed by learned D.R.
(3.) WE have given careful thought to rival submissions of the parties. The application filed by the assessee is not supported by any affidavit from Sri Ram Ji Das or Mr. Pradeep Kapoor, the counsels referred to in the application. It is not known as to when Sri Ram Ji Das was to file the appeal and how and under what circumstances, the assessee got the impression that appeals have been filed. Reference to record for assessment years 1979-80 and 1980-81 revealed that appeals for those years were heard by the CIT (Appeals) on 6-5-1992 and disposed of on 11-5-1992. There is reference to the orders of his predecessor for the assessment years under appeal. Thus even if it is accepted that applicant had the impression that appeals were filed by its counsel Sri Ram Ji Das, the fact of non-filing of appeals came to his knowledge near about 6-5-1992. The present appeals were filed only on 6-7-1992 and there is gap of two months for which no explanation has been rendered. It is settled law that delay of each day is to be explained and explanation must cover the whole period of delay. In the facts and circumstances of case we cannot hold that delay has been properly explained.;

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