JUDGMENT V.C. Daga, J.
1. Heard forthwith by consent of parties. Perused record and proceedings.
2. This appeal is preferred against the order passed by the Income Tax Appellate Tribunal, Nagpur Bench in I.T.A. No. 670/Nag/98 dated 8th September, 2002 for the assessment year 1993-94.
THE FACTS
3. The facts in brief are that the Assistant Commissioner of Income Tax, Circle 1(2), Nagpur passed an assessment order on 27.3.1997 against the appellant under Section 144 read with Section 147 of the Income Tax Act, 1961 ("the Act", for short) and issued show-cause notice as to why penalty proceedings should not be initiated against the present appellant, the assessee.
4. The present appellant preferred an appeal before the Commissioner of Income Tax (Appeals) bearing CIT(A)-I/208/1997-98 against the order passed by the Assistant Commissioner of income Tax on 27.3.1997. Since the appeal was barred by limitation, it was accompanied by application seeking condonation of delay under the signature of one of the partners of the Firm, namely, Shri Laxmikant Chhotelal Gupta. The reason sought to be disclosed in the application was internal dispute between the partners of the Firm which had resulted in delayed filing of the appeal. Application for condonation of delay was rejected and the appeal was dismissed vide order dated 17.9.1998 without adjudication on merits.
5. Appellant preferred I.T. Appeal No. 670/Nag/98 before the Income Tax Appellate Tribunal, Nagpur Bench, Nagpur (for short, the "Tribunal") requesting for grant of opportunity of hearing and for decision on merits in accordance with law.
6. The appeal was fixed for hearing on 7.9.2000, but the appellant had to file an application for adjournment as the wife of Managing Partner, Shri Laxmikant Gupta was suffering from cancer. The Tribunal rejected the said application and dismissed appeal vide order dated 8.9.2002 without considering the same on merits.
7. The aforesaid order dated 8.9.2002 passed by the Tribunal is the subject matter of challenge in this appeal filed under Section 260(A) of the Income Tax Act.
THE CONSIDERATION AND FINDINGS
8. Basically, the question involved in the appeal is, as to whether the Tribunal was justified in refusing to grant adjournment and refusing to consider the validity of the order of the Commissioner of Income Tax (Appeals) refusing to condone delay in presenting an appeal. The reason sought to be given for condonation of delay in presenting the appeal before the Commissioner of Income Tax (A) was conflict and disputes between partners of the assessee Firm. Shri Laxmikant Gupta had filed application in his own signature stating therein that he is the only person running from one Court to other and is required to attend all litigations in various Courts which resulted in belated filing of the appeal before the Commissioner of Income Tax (Appeals).
9. The reason sought to be given by the assessee was sought to be brushed by the Commissioner of Income Tax (Appeals) in a most casual and perfunctory manner. If the Commissioner of Income Tax (Appeals) was not satisfied with the material sought to be disclosed in support of the reason given, it could have asked the assessee to disclose further material in support of his application. The said opportunity ought to have been given by the C.I.T. (Appeals). Needless to state that the justice should not only be done, but it should seem to have been done, is a well-recognised maxim holding the field in the field of law. As a matter of fact, there was no material on record to doubt the reason given in support of the prayer for condonation of delay. We could not notice any opposition to the said prayer on behalf of the Revenue. In absence of serious contest, the delay ought to have been condoned.
10. The Apex Court has laid down from time to time that the Courts and the Tribunals should not be hyper-technical and should not deny opportunity of hearing on merits as far as possible. Therefore, in our view, the Commissioner of Income Tax (Appeals) was not justified in refusing to condone the delay. At the same time, we are of the opinion that the Tribunal should not have rejected the application of the partner of the assessee-Firm for adjournment when the reason given was illness of his wife due to serious ailment like cancer. The Tribunal ought to have placed itself into the armchair of the assessee and should have realised the predicament of the partner Shri Laxmikant Gupta; whose wife was suffering from a dreaded disease like cancer. Grant of one short, adjournment would not have caused any prejudice to the Revenue.
11. The order of Tribunal refusing to grant adjournment and thereunder refusing to set aside the order of the Commissioner of Income Tax (Appeals) and thereby refusing to condone delay in presenting appeal before the Commissioner of Income Tax (Appeals), in our opinion, is clearly in breach of principles of natural justice and suffers from hyper-technical approach on the part of the Tribunal.
12. The impugned order in the appeal, for the reasons stated above. cannot stand to the scrutiny of law. The same deserves to be set aside. However, having heard the parties to the appeal mainly on the issue with regard to the condonation of delay, in the back-drop of the reasons disclosed by the assessee in support of the prayer for condonation of delay: and in absence of serious contest between the parties, we feel that the question of condonation of delay needs to be considered at this stage only.
13. We, therefore, in the aforesaid premise, for the reasons stated in the application seeking condonation of delay in presenting appeal before the Commissioner of Income Tax (Appeals), condone the said delay and instead of remitting the matter back for reconsideration afresh to the Tribunal, remit the same to the Commissioner of Income Tax (Appeals) with a direction to decide the appeal on its own merits in accordance with law.
15. In the result, appeal is allowed in terms of this order with no order as to costs.