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Income Tax Appellate Tribunal, “B’’ BENCH: BANGALORE
Before: SHRI CHANDRA POOJARI & SMT. BEENA PILLAI
PER CHANDRA POOJARI, ACCOUNTANT MEMBER:
This appeal by assessee is directed against order of CIT(A) dated 25.7.2019. The assessee has raised following grounds of appeal:
1. The order of the Assessing Officer is against the fact and circumstances of the case and against the judicial pronouncements delivered in cases of Joint Development Agreement.
2. On the facts and circumstances of the case, and under the provisions of law, the Assessing officer
Mr. Thatigundla Prabhakar, Bangalore Page 2 of 8 erred in dismissing the appeal of the Appellant without admitting "the additional evidences submitted u/r 46A of the Income Tax Rules, 1962 which is against the principal of natural justice.
3. On the facts and circumstances of the case, the Assessing Officer erred in adopting the purchase cost of the land of Appellant as Rs. 22,01,058/- but actual cost of land of the Appellant is Rs.14,08,677/-.
On the facts and circumstances of the case, and under the provisions of law, the Assessing Officer erred in not allowing the exemption us/ 54F of the Income Tax Act, 1961 for which the Appellant is entitled on account of the Joint Development Agreement for all the multiple flats received by the Appellant.
5. For these and other reasons which may be adduced at the time of the hearing, Your Honour is requested to allow the appeal of the Assessee as prayed in the statement of facts and computation statement enclosed herewith.
6. The appellant craves leaves, to add, to alter, to amend and to delete any other grounds at the time of hearing.
At the outset, it was observed that there was delay of 1406 days in filing the appeal before this Tribunal. The assessee has filed affidavit explaining the reason for filing the appeal belatedly before this Tribunal as follows:
Mr. Thatigundla Prabhakar, Bangalore Page 3 of 8
Mr. Thatigundla Prabhakar, Bangalore Page 4 of 8
The ld. A.R. placed reliance on the above affidavit and pleaded that the assessee is having a case on merit and the issue in dispute was covered in favour of the assessee by way of various decisions of this Tribunal.
Mr. Thatigundla Prabhakar, Bangalore Page 5 of 8 4. The ld. D.R. strongly opposed to admit the appeal since the delay was inordinate and unreasonable.
We have heard the rival submissions and perused the materials available on record. The assessee has filed an affidavit stating that the delay of 1406 days was due to improper advise of assessee’s Tax Consultant for filing the appeal before this Tribunal, consequent to dismissal of assessee’s appeal by ld. CIT(A). The assessee came to know about the non-filing of appeal by the Consultant only after receipt of recovery notice received by the assessee. Thereafter, assessee has taken steps for filing appeal before this Tribunal. The assessee neither in the condonation petition nor in the affidavit explained as to why such long time was taken to file appeal before this Tribunal belatedly and only claiming that some Tax Consultant has ill advised him, without naming the person to whom assessee has handed over the ld. CIT(A)’s order for filing the appeal before this Tribunal. The assessee has also not mentioned the date on which it was handed over to the said Consultant and not placed any evidence of correspondence between them. In fact, there is even no attempt to explain the same. It is the duty of the assessee to contact Advocate or CA or Consultant and to take steps to file the appeal before this Tribunal. The assessee, being aggrieved party should be very conscious of the fact that time to file the appeal is running against the assessee shall take proper steps to file the same. There must be proper explanation in the condonation petition that assessee is very vigilant and not slept over the matter. The reason explained by the assessee in the condonation petition is too general and it does not explain the delay except stating that the delay was due to improper advice of Tax Consultant.
5.1 The Apex Court in the case of Office of the Chief Post Master General and Others vs. Living Media India Ltd, and Another, reported in (2012) 348 ITR 7 (SC)
Mr. Thatigundla Prabhakar, Bangalore Page 6 of 8 while dealing with the condonation of delay application by the State, has observed as under :- "12. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period o f limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. Though we are conscious of the fact that in a matter o f condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law o f limitation undoubtedly binds everybody including the Government.
In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay."
5.2 As already noted, there was no mention of the Consultant to whom the assessee had handed over the ld. CIT(A)’s order and what are the steps taken by the assessee to file the appeal before this Tribunal. In our opinion, the condonation petition will have to be case specific and the delay has to be explained to the satisfaction of the Tribunal. Being so, the contention of the assessee cannot be Mr. Thatigundla Prabhakar, Bangalore Page 7 of 8 accepted. The delay in filing the appeal by the assessee is not bonafide. Therefore, according to us, the assessee has not explained the delay in filing the appeal by showing any reasonable cause and the reason explained by assessee cannot be considered as good and sufficient reason to condone the delay. It was submitted by the ld. A.R. that the delay is to be condoned since the issue on merit covered in favour of the assessee. 5.3 This submission ignores the fact that the object of the law of limitation is to bring certainty and finality to litigation. This is based on the Maxim “interest reipublicae sit finis litium i.e. for the general benefit of the community at large, because the object is every legal remedy must be alive for a legislatively fixed period of time. The object is to get on with life, if you have failed to file an appeal within the period provided by the Statute. It is for the general benefit of the entire community so as to ensure that stale and old matters are not agitated and the party who is aggrieved by an order can expeditiously mover higher forum to challenge the same, if he is aggrieved by it. As observed by the Apex Court in many cases, the law assist those who are vigilant and not those who sleep over their rights as found in the Maxim “Vililantibus Non Dormientibus Jura Subveniunt”. In our opinion, merely because the assessee is not vigilant, it cannot follow that the assessee is bestowed with a right to the delay being condoned. We are conscious of the fact that the period of limitation should not come as a hindrance to do substantial justice between the parties. However, at the same time, a party cannot sleep over its right ignoring the statute of limitation and without giving sufficient and reasonable explanation for the delay, except its appeal to be entertained merely because the assessee is an individual. Appeals filed beyond a period of limitation have been entertained by us where the delay has been sufficiently explained such as in cases of bonafide mistake. Thus, the assessee should be well aware of the statutory provisions and the period of limitation and should pursue its Mr. Thatigundla Prabhakar, Bangalore Page 8 of 8 remedies diligently. The assessee cannot expect his appeal to be entertained because he is after all the assessee, notwithstanding the fact that delay is not sufficiently explained. Even if we consider the delay during Covid Period i.e. from 15.3.2020 to 28.2.2022, which needs to be excluded in view of the decision of Hon’ble Supreme Court in Miscellaneous Application No.21 of 2022 in Miscellaneous Application No.665 of 2021 in Suo Moto WP No.(C) No.3 of 2020 in Re: Cognizance of Limitation dated 10.1.2022, the assessee has not explained the delay during other than the Covid period. Thus, we are not satisfied with the reason set out in the affidavit filed before us, so as to condone the delay in filing the appeal before this Tribunal. Hence, the delay is not condoned and the appeal is unadmitted.
In the result, the appeal of the assessee is dismissed.
Order pronounced in the open court on 9th Oct, 2023