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Income Tax Appellate Tribunal, “C’’ BENCH: BANGALORE
Before: SHRI CHANDRA POOJARI & SMT. BEENA PILLAI
PER BEENA PILLAI, JUDICIAL MEMBER:
This appeal is filed by the assessee is directed against order of CIT(A)-12 dated19.2.2020 for the block period 1.4.1997 to 3.4.2003.
At the outset, it is noticed that, there was delay of 1081 days in filing of appeal before this Tribunal. It was submitted that the ld. CIT(A) passed the impugned order on 19.2.2020. It is submitted that the assessee got to know regarding passing of the impugned order on receipt of penalty notice u/s 158BFA(2) of the Income-tax Act,1961 ['the Act' for short] during March, 2022. However, assessee could not file the appeal immediately as the assessee was putting efforts to get in contact with Mr. Jeevan Rao, who was holding to all the relevant documents necessary to file the present appeal. The ld. A.R. submitted that out of 1081 days, up to 730 days are to be excluded due to post Covid-19 Pandemic. He requested that the delay of balance 379 days
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Page 2 of 7 approximately may be condoned in the interest of justice, otherwise it causes un-bearable hardship to the assessee. For this, he relied on the following judgements:
i. Collector, Land Acquisition Vs. MST. Katiji and Others (1987) 167 ITR 471 (SC); ii. Concord of India Insurance Co. Ltd., Vs. smt. Nirmala Devi and Others 118 ITR 507 (SC); iii. Radha Krishna Rai Vs. Allahabad Bank & Others [2009] 9 SCC 733; iv. CIT Vs. West Bengal Infrastructure Development Finance Corporation Limited [2011] 334 ITR 269 (SC); v. Improvement Trust, Ludhiana Vs. Ujagar Singh & Ors. in Civil Appeal No.2395 of 2008 (SC); vi. Ram Nath Sao Vs. Gobardhan Sao reported in AIR 2002 SC 1201;
On the other hand, Ld. DR submitted that the assessee only builds up a story to condone the delay, there is no reasonable cause for inordinate delay, which shall not be condoned. In this regard, Ld. DR relied on the decision of the Co-ordinate Bench of the Tribunal in the case of Smt. Rajalakshmi Vettrivel Vs. ACIT in ITA Nos.1106, 1107, 1108, 1109, 1110 & 1111/Mds/2017, dt.31-08-2017, wherein it was held as under:
“6. I have considered the rival submissions and perused the orders of the lower authorities impugned in these appeals. As far as the delay in filing these appeals by 744 days against the common appellate order of the CIT(A), viz. ITA No. 76 to 81/09- 10 dated 19.02.2015 is concerned, one has to admit that the delay involved is inordinate and not marginal. 6.1 It is settled position of law that it is only marginal delays that can be condoned, and not inordinate delays running into several years. We may at this juncture, refer to the Third Member decision of Tribunal (Chennai) in the case of Jt. CIT v/s. Tractors & Farms Ltd. (104 ITD 149)-TM, wherein drawing out a distinction between normal delay and inordinate delay, it has been observed, vide head-note on page 150 of the Reports (104 ITD) as follows- "A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case, the consideration of prejudice to the other side will be a relevant factor, so the case calls for more cautious approach, in the latter case, no such consideration may arise and such a case
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Page 3 of 7 deserves a liberal approach. No hard and fast rule can be laid down in this regard. The Court has to exercise the discretion on the facts of each case, keeping in mind that in considering the expression ‘sufficient cause’, the principle of advancing substantial justice is of prime importance." 7. That being so, the case-law relied before us by the learned counsel for the assessee has no application to the facts of the present case. Further I make it clear that there is no hard and fast rule which can be laid down in the matter of condonation of delay and Courts should adopt a pragmatic approach and discretion on the facts of each case keeping in mind that in considering the expression ‘sufficient cause’ the principles of advancing substantial justice is of prime importance and the expression ‘sufficient cause’ should receive a liberal construction. A liberal view ought to be taken in terms of delay of few days. However, when there is inordinate delay, one should be very cautious while condoning the delay. The delay of 744cannot be condoned simply because the assessee’s case is hard and calls for sympathy or merely out of benevolence to the party seeking relief. In granting the indulgence and condoning the delay, it must be proved beyond the shadow of doubt that the assessee was diligent and was not guilty of negligence whatsoever. The sufficient cause within the contemplation of the limitation provision must be a cause which is beyond the control of the party invoking the aid of the provisions. The Supreme Court in the case of Ramlal v. Rewa Coalfields Ltd., AIR 1962 SC 361 has held that the cause for the delay in filing the appeal which by due care and attention could have been avoided cannot be a sufficient cause within the meaning of the limitation provision. Where no negligence, nor inaction, or want of bona fides can be imputed to the assessee a liberal construction of the provisions has to be made in order to advance substantial justice. Seekers of justice must come with clean hands. In the present case, the reasons advanced by the assessee do not show any good and sufficient reason to condone the delays. The delays are not properly explained by the assessee. There is no reason for condoning such delay in this case. The delay is nothing but negligence and inaction of the assessee which could have been very well avoided by the exercise of due care and attention. Though the assessee has said that the divorce proceedings initiated by her spouse were the reason for delay in filing these appeals, there is no iota of evidence of such proceedings before any Court. Hence, there exists no sufficient or good reason for condoning inordinate delays of more than 744 days in filing appeal before us. Accordingly, these appeals are dismissed as barred by limitation. 8. I accordingly decline to condone the delay of 744 days, and dismiss these six appeals of the assessee as barred by limitation”. reason that on the advise of his CA, he handed over the appeal papers to Prakash R. Badiger, Advocate, Dharwad who failed to take necessary steps to file appeal before this Tribunal and thereafter he engaged M/s. K.R. Prasad, Advocates, Bangalore to file appeal. The assessee also furnished a confirmation letter from Mr. Prakash R. Badiger, Advocate, Bangalore stating that due to eagerness or immaturity, he accepted the income tax brief, but not able to deliver and there was a delay from his end. 7. However, the assessee has not produced any evidence of his CA, Mr. Sharanagouda Patil who advised assessee to contact Mr. Badiger, Advocate. Further, there is no evidence to suggest about the date of handing over the documents to Advocate and it is not mentioned what are the papers given to Mr. Badiger for preparation of filing of appeal and what is the advise given to the assessee during this 310 days. There is no material to suggest to suggest the professional charges so as take up filing of appeal before the Tribunal. The assessee has failed to bring any material on record to prove his bonafide attempt in filing the appeal. The assessee merely furnished one letter from Mr. Badiger, Advocate for seeking condonation of delay in filing the appeal along with affidavit. Except these, the assessee has not brought out any other material to prove his
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Page 4 of 7 bonafide attempts to file the appeal. In our opinion, the assessee has not acted with due diligence in prosecuting the appeal. On the other hand, the assessee was negligent in his attitude in taking steps to file the appeal. In the absence of any evidence to prove the bonafides of the assessee, except the self-serving documents, the inordinate delay of 310 days in filing the appeal before the Tribunal cannot be condoned. There are 3 persons involved in this case viz., the assessee, his CA Shri Sharanagouda Patil and Shri Prakash R. Badiger, Advocate, who are required to explain the delay. They are not illiterate and they very well know the law. Ignorance of law is no excuse. We may refer to the judgment of the Hon’ble Supreme Court in the case of The Swadeshi Cotton Mills Co. Ltd. v. The Govt. of UP & Ors. (1975) 4 SCC 378 wherein it was held as follows:- “...But we are in agreement with the High Court on the other two grounds. As mentioned earlier, the impugned assessments were made in 1949. The writ petition was filed in 1956. The explanation given by the petitioner for this long delay is that he did not know the correct legal position and he came to know about the same after the decision of the Allahabad High Court in the Commissioner of Sales Tax, U.P. Vs. Modi Food Products Ltd. Every individual is deemed to know the law of the land. He courts merely interpret the law and do not make law. Ignorance of law is not an excuse for not taking appropriate steps within limitation. Therefore the argument that the appellant did not know the true legal position is not one that can be accepted in law. ....” 8. Further, in the present case, there is no denial on the part of the assessee about the service of the order on the assessee and after receipt of the order of the CIT(Appeals), to whom the assessee wants to entrust the work of filing appeal before the Tribunal is his own concern and this explanation does not constitute sufficient ground to condone the delay. Therefore we find no merit in the application for condonation of delay. Accordingly, we are of the considered view that the assessee has failed to make out a sufficient and reasonable cause for condonation of delay and reject the petition for condonation of delay. Being so, we refrain from going into other grounds of appeal on merits. 9. In the result, the appeal of the assessee is dismissed in limine”. 3.1 The ld. D.R. thus, submitted that, there was inordinate delay of 379 days, which shall not be condoned as the assessee was very negligent in his acts. He prayed to confirm the order of the Ld. CIT(A).
We have heard the contentions of both the parties and perused the material on record. In this case, there was an actual delay of approximately 1081 days, out of which approximately 730 days relates to post-covid delay, which need not to be considered at this stage. We have to consider only the delay of 379 days in filing of appeal before this Tribunal. The assessee explained delay on account of ex-parte order passed by the ld. CIT(A) in view of the non-participation of assessee’s assigned counsel before the ld. CIT(A) and the assessee could not obtain
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Page 5 of 7 the relevant documents that were held by previous authorized representative Mr. Jeevan Rao.
4.1 It is submitted that the assessee was not aware of the proceedings before the CIT(A) and also ex-parte dismissal of the appeal by the CIT(A) only came to know about CIT(A) when the assessee approached new consultant for filing of return of income and the same was explained by the assessee by way of affidavit before us.
4.2 No counter affidavit is filed by the department stating the above averments made by the assessee is not bonafide. At this point it is appropriate to go the judgment of Hon’ble Supreme Court in the case of Collector, Land Acquisition Vs. Mst.Katiji & Ors [167 ITR 471] (SC) wherein 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 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 consideration 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. (0) 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. (1) It must be grasped that the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so”.
4.3. In our opinion, where substantial justice and technical consideration are pitted against each other, the cause of substantial
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Page 6 of 7 justice deserves to be preferred, for the other side cannot claim to have vested right for injustice being done because of non-deliberate delay. In the case on our hand, the issue on merit, deserves to be decided. As the previous representative was not traceable who possessed all necessary documents like Assessment Order, Form 35, etc., the assessee could not file the present appeal even after becoming aware during May, 2022. Being so, the assessee is having good and sufficient reasons in not filing the appeal in time. Accordingly, we inclined to condone the delay and admit the appeal for adjudication. Accordingly, the appeal is admitted for adjudication. On merits, we note that assessee could not represent the issues raised before the ld. CIT(A). In the interest of justice, we deem it fit and proper to remand this appeal to the ld. CIT(A) to decide the appeal de- novo. The assessee is directed to file all relevant evidences necessary to adjudicate the issues. Needless to say that proper opportunity of being heard must be granted to the assessee. All the grounds raised by the assessee stands allowed for statistical purposes.
In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 6th July, 2023
Sd/- Sd/- (Chandra Poojari) (Beena Pillai) Accountant Member Judicial Member
Bangalore, Dated 6th July, 2023. VG/SPS
ITA No.278/Bang/2023 M/s. Kaypee Exporters, Bangalore
Page 7 of 7 Copy to:
The Applicant 2. The Respondent 3. The CIT 4. The CIT(Judicial) 5. The DR, ITAT, Bangalore. 6. Guard file By order
Asst. Registrar, ITAT, Bangalore.