Decided on February 28,1994



G. Santhanam, Accountant Member - (1.) THESE appeals are by the assessee and relate to the asst. yrs. 1983-84 and 1984-85 respectively.
(2.) The appeal for the asst. yr. 1983-84 Is against the order of the CIT(A) in not condoning the dealy of 30 days in the filing of the appeal. The delay of one month, it was explained by the appellant, was due to the delay caused in the Chartered Accountant's office. The Chartered Accountant in turn had filed an affidavit before the first appellate authority stating that he was instructed by the client to file the appeal on receipt of the order for the assessment year 1983-84 which was acknowledged in his office on 12th February, 1985 and that in the normal course the appeal should have been filed on or before 14th March, 1985 but was, in fact, filed only on 14th April, 1985 involving a delay of about a month and that the delay occurred in his office due to certain staff problem and that the appellant was, in no way, responsible for such delay. The learned CIT(A) was of the view that the Chartered Accountant's affidavit was rather vague and the delay was not explained by sufficient cause. Thus he refused to condone the delay and dismissed the appeal as barred by limitation. The assessee is on further appeal. The learned Departmental Representative relies on the decision of the Supreme Court in the case of Mrs. Sandhya Rani Sarkar v. Smt. Sudha Rani Debi AIR 1978 SC 537. He also placed reliance on the decision of the Kerala High Court in the case of P.D. Varghese and E.J. Davis v. CIT [1989] 180 ITR 187 (Ker.). The assessee relies on the decision of the Supreme Court in the case of Collector, Land Acquisition v. Mst. Katiji [1987] 167 ITR 471.
(3.) IN para 8 of the decision of the Supreme Court in Mrs. Sandhya Rani Sarkar's case (supra) it was explained as follows : Discretion is conferred on the Court before which an application for condoning delay is made and if the Court after keeping in view relevant principles exercises its discretion granting relief, unless it is shown to be manifestly unjust or perverse, the Supreme Court would be loathe to interfere with it. It is undoubtedly true that in dealing with the question of condoning the delay under Section 5 the party seeking relief has to satisfy the Court that he had sufficient cause for not preferring the appeal or making the application within the prescribed time and this has always been understood to mean that the explanation has to cover the whole period of delay. However, it is not possible to lay down precisely as to what facts or matters would constitute sufficient cause under Section 5. But those words should be liberally construed so as to advance substantial justice when no negligence or any inaction or want of bonafides is imputable to a party, i.e., the delay in filing an appeal should not have been for reasons which indicate the party's negligence in not taking necessary steps when he would have or should have taken. What would be such necessary steps will again depend upon the circumstances of a particular case AIR 1960 SC and AIR 1972 SC 749, Rel. on. But then there is a later decision of the Supreme Court in Mst. Kaliji's case [supra) on the question of limitation wherein their Lordships indicated the kind of approach the Court should adopt in the matter of condonation of delay in the filing of petitions, suits, etc. in the following terms : The expression 'sufficient cause' employed by the Legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice-that being the life- purpose of the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that: 1. Ordinarily, a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter 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 and pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, the 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.;

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