M.S AVALON TECHNOLOGIES PVT LTD,CHENNAI vs. ACIT(OSD) / DEPUTY COMMISIONER OF INCOME TAX,, CHENNAI

1 an the Managing Director of the petitioner company and I am fully acquainted with the facts of the case leading to and relating to the present petition.

I submit that being aggrieved with the order of assessment for the assessment year 2012-13, the petitioner had filed an appeal before the first appellate authority on number of issues and the learned Commissioner of Income Tax (Appeals), Chennai vide his orders dated 28.02.2018 allowed the petitioner appeal in part. Consequent to the orders of the first appellate authority the petitioner had paid all taxes and no proceedings were pending before the revenue authorities.

On receipt of the orders from the first appellate authority, the petitioner had handed over the said order to its authorized representative for advice and follow up action. However, no specific advice was given by the authorised representative, who appeared for the petitioner before the first appellate authority, in respect of filing of appeal before the Hon'ble ITAT, therefore the petitioner could not file appeal within specified date.

The petitioner submits that it could not file the appeal before the Hon'ble ITAT within the stipulated timeline since no specific advice was given to the petitioner by the authorised representative who appeared before the first appellate authority. Further there were frequent manpower changes due to the resignation of some employees in the finance and accounts department of the appellant during the such period coupled with various assessments that were to be attended during the said period.

The petitioner submits that the delay in filing the appeal is not deliberate and is neither wilful nor wanton but only due to reasons that it was not advised to file an appeal. The petitioner submits that the delay is due to the aforesaid bona fide reason and there is no taint mala fides or element of recklessness or ruse. The petitioner humbly submits when substantial justice and technical considerations are opposed to each other, cause of substantial justice has to be preferred to prevent financial injury to the petitioner and to prevent unjust hardship, further when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

The petitioner in the above circumstances humbly prays that the Hon'ble Tribunal be pleased to take a liberal, pragmatic, justice-oriented, non- pedantic view and condone the delay of 983 days in filing the appeal for the AY 2012-13 since refusal to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated.

We confronted these reasons to ld.CIT-DR. He drew our attention to the decision of Hon’ble Madras High Court in the case of Ajmeer Sherriff & Co. vs. ITO in Tax Case (Appeal) No.529 of 2014 and referred to paras 9 & 10 as under:- 9. The principles involved and the approach needed while considering the application for condonation of delay has been highlighted in the decision reported in 2013 (5) CTC 547 (Esha Bhattacharjee V. Managing Committee of Raghunathpur, Nafar Academy and others, and the relevant portions are extracted for convenient reference:- "15. From the aforesaid authorities the principles that can broadly be culled out are: i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the to 6/CHNY/2021 6 courts are not supposed to legalise injustice but are obliged to remove injustice. ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact situation. iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude."

We find that the appellant in the present case has been lackadaisical in their approach and in a nonchalant manner they have tried to seek to 6/CHNY/2021 7 condonation of delay. The Supreme Court in the decision referred supra has deprecated the practice of showing leniency in unwarranted fact situation. The parameters laid down by the Supreme Court as to when the delay should not be condoned get squarely attracted to the facts of the present case and therefore, we find no reason to condone the delay. The Tribunal was correct in dismissing the appeal on that score.

The case law cited by ld.counsel of assessee of Hon’ble Madras High Court in the case of Rarefield Engineers Pvt. Ltd., vs. ACIT in T.C.A. No.161 of 2023, the delay was only 380 days and Hon’ble High Court has considered the issue on substantial justice due to short delay. Similarly, in the case law relied on by the ld.counsel of the assessee in the case of Venkatadri Traders Ltd., vs. CIT, 248 ITR 681 of Hon’ble Madras High Court, the delay was of 5 months and that also the reason “that the need for filing a revision arose only after it was found that the amount received by the assessee for the Candouble was required to be treated as capital gain in the year of receipt and, consequently, the accrued interest on which tax had been paid for the earlier years had been wrongly included in those years as his income.”

In the result, the appeals filed by the assessee in & 6/CHNY/2021 are dismissed.