Delay in filing electronic appeal due to non updation of mobile no. in aadhar so as to verify the OTP was held as sufficient reasons
ABCAUS Case Law Citation:
ABCAUS 3031 (2019) (06) ITAT
Important Case Laws Cited/relied upon by the parties:
Collector Land Acquisition Vs. Mst. Katiji & Others, 1987 AIR 1353
N.Balakrishnan Vs. M. Krishnamurth
The assessee was aggrieved by the action of the CIT(A) in not condoning the delay of 12 days in filing of appeal and dismissing the appeal as time barred.
Before the Tribunal, the appellant contended that as per Rule 45(2) of the IT Rules, 1962, appeal before the CIT(A) requires to be filed electronically and in order to file it electronically it is to be verified by Aadhar OTP or through digital signature.
It was submitted that both the above modes required OTP for verification on mobile number registered with UIDAI (Authority Maintaining Aadhar Database) The assessees made application for updation of mobile number in Aadhar data base.
It was further submitted that the UIDAI took 12 days to update the same and thereafter appeals were filed before the CIT(A). However, CIT(A) did not accept this contention of the assessee and rejected the application for condonation of delay.
The Tribunal observed that Sub-section 5 of Section 253 contemplates that the Tribunal may admit an appeal or permit filing of memorandum of cross objections after expiry of relevant period, if it is satisfied that there was a sufficient cause for not presenting it within that period. This expression “sufficient cause” employed in the section has also been used identically in sub-section 3 of section 249 of Income Tax Act, which provides powers to the Commissioner to condone the delay in filing the appeal before the Commissioner. It was noted that similarly, the expression used in section 5 of Indian Limitation Act, 1963.
The Tribunal further observed that whenever interpretation and construction of this expression has fallen for consideration before Hon’ble High Court as well as before the Hon’ble Supreme Court, then, Hon’ble Court were unanimous in their conclusion that this expression is to be used liberally.
It was noted that Hon’ble Courts are unanimous in their approach to propound that whenever the reasons assigned by an applicant for explaining the condonation of delay, then such reasons are to be construed with a justice oriented approach.
It was noted that the Hon’ble Supreme Court had held 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 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 occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
The Tribunal opined that the delay had occurred on account of certain procedural aspect. The assessees had explained their bonafide. They had not made their appeals time barred by adopting tactics as a strategy to fight litigation with the department. In other words, there was no malafide intention at the ends of assessees not to file appeal well in time. The first appellate authority ought to have taken a sympathetic view while considering the application for condonation of delay.
On due consideration of the facts, the Tribunal opined that the assessees were prevented by sufficient reasons for not pressing their appeals before the CIT(A) within the time limit. Therefore, the Tribunal condoned the delay in filing appeal(s) before the CIT(A) and set aside the impugned orders of the first appellate authority.