Loading judgment…
No AI summary yet for this case.
Before: SHRI V. DURGA RAO & DR. MANISH BORAD
O R D E R
PER V. DURGA RAO, JUDICIAL MEMBER:
This appeal filed by the assessee is directed against the order of the ld. Commissioner of Income Tax (Appeals) 14, Chennai, dated 16.01.2019 relevant to the assessment year 2015-16.
The appeal filed by the assessee is delayed by 1333 days in filing the appeal before the Tribunal. The assessee has filed a petition for condonation of delay in the form of an affidavit, wherein, the assessee has submitted as under:
I, V. Sayeebrinda, wife of Mr. Allalachari Sampath Rangarajan, Hindu aged about 45 years having office at Al, No.28, Ashok Flats, 10th Avenue, Chennai - 600083, do hereby solemnly and sincerely affirm and state as follows: I am the Trustee of the Petitioner/Appellant Trust herein and am well acquainted with the facts pertaining to the belated filing of the captioned appeal before the Appellate Tribunal, thereby competent to swear to this affidavit. I state that the order of the CIT (Appeals) - 14, Chennai dated 16.01.2019 was received immediately thereafter and handed over to Mr. S.V. Srinivasan, Chartered Accountant for further action. I state that the appeal for the assessment year 2016-17 was decided by the ITAT August 2022 in and thereafter the entire income tax profile of the petitioner/appellant was examined by the counsel on record for taking a uniform stand by applying the law laid down by the Supreme Court for taxation of rental _income in the hands of right persons (reported in 84 Taxmann.com 116). 1 state that the mistake of non filing of the appeal for the assessment year under consideration against the order dated 16.01.2019 by the office of Mr. S.V. Srinivasan, CA came to light and the office of the counsel on record while preparing the appeal against the ITAT’s order referred to herein before in the Registry of the Madras High Court, the appeal against the impugned order for the captioned assessment year was also prepared. I state that the appeal was filed by the office of the counsel on record in the Registry of the Appellate Tribunal on 09.11.2022 belatedly by 1333 days which included the COVID 19 exclusion period from 15.03.2020 to 31.05.2022 (effective delay of 525 days) and in this regard, I state that the belated filing of th6 caption appeal wag neither wilful nor deliberate but due to circumstances beyond my control. What is stated above is TRUE and CORRECT based on my information, belief and knowledge. In such circumstances, the delay of 1333 days (effective delay of 525 days) in filing the appeal for the assessment year 2015-16 may be condoned in the interest of justice and further prayed for rendering decision on merits, of the case.
By referring the affidavit, the ld. Counsel for the assessee has submitted that the assessee was prevented by reasonable cause for the delay and the delay in filing the appeal is neither wilful nor wanton. Thus, the ld. Counsel has prayed for condoning the delay.
On the other hand, the ld. DR has submitted that the assessee was well acquainted with the Income Tax Act, procedures to be adopted for filing of the return/filing of rectification petition as has been done in the assessment year 2016-17, etc. and they ought to have been filed the appeal in time. The assessee has not been able to establish any reasonable cause to condone the inordinate delay in filing the appeal before the Tribunal and submitted that the delay should not be condoned.
We have heard both the sides, perused the condonation petition filed in the form of affidavit. In the affidavit, the assessee has admitted to have filed its appeal with a delay of 1333 days which included the Covid- 19 pandemic exclusion period from 15.03.2020 to 31.05.2022 and the effective delay is 525 days. We have gone through the Affidavit filed by the assessee and also examined sequence of events and after considering necessary facts, we are of the considered view that the reasons given by the assessee in its Affidavit is vague and not bonafide, for the reason that, the assessee has very well represented its case through an Authorized Representative before the Assessing Officer and also before the ld. CIT(A). Moreover, we could not find any reasonable cause for the delay of more than one and half years in filing the appeal before the Tribunal and thus, the explanation given by the assessee cannot be accepted as bonafide explanation.
In the absence of any reasonable cause, in the case of Mrs. Preeti Madhok v. ITO in dated 17.06.2022, the Coordinate Benches of the Tribunal has observed and held as under: “5. We have heard both the parties and considered the petition filed by the assessee for condonation of delay of 581 days. We have also carefully considered the reasons given by the assessee for delay in filing of the appeal. We find that prima facie the reasons given by the assessee, in her Affidavit for condonation of delay of 581 days, seems to be not bona fide. Further, in the petition filed for condonation of delay, the assessee claimed that she was not aware of law that an appeal can be filed against the order of the PCIT u/s.263 of the Act, and further, an advice from the Counsel, Mr. T. Banusekar, CA, she came to know that there is a provision to file appeal against the revision order and thus, she took decision to file appeal, which caused delay of 581 days. We have gone through the Affidavit filed by the assessee and also examined sequence of events and after considering necessary facts, we are of the considered view that the reasons given by the assessee in her Affidavit is not bona fide, because, the assessee has very well represented her case through an Authorized Representative before the AO and also before the PCIT during revisional proceedings. She had been represented by Mr. Chandanmal Jain, CA, before the Income Tax Officer. During the course of revision proceedings, she had also engaged the same CA to appear before the PCIT under 263 proceedings. Therefore, we are of the considered view that when she was capable of engaging a professional for appearing before two different authorities at two different points of time, it is impossible to believe her version that she was not aware of filing of the appeal against 263 order within the due date prescribed under the provisions of Income Tax Act, 1961. We further noted that in her petition, she claimed, she met Mr. T. Banusekar, CA, to seek his services for representing the case before the CIT(A) in connection with the appeal filed by the assessee against the order u/s.143(3) r.w.s.263 of the Act. Therefore, from the above, what is clear is that she is an educated person, aware of Income Tax proceedings, including filing of the appeal against the order of the AO. Further, from the contents of the petition filed by the assessee for condonation of delay, what we could understand is that the assessee has chosen not to file the appeal against the order of the PCIT u/s.263 of the Act, because, she can pursue an alternative remedy available with her and represent her case before the AO on the belief that she can get a favourable order from the AO. Once, the assessment order passed by the AO, went against the assessee, then she consulted a different professional, who advised her to file the appeal against the order of the PCIT u/s.263 of the Act, which is clearly evident from the fact that in all proceedings, including assessment proceedings before the AO and revision proceedings before the PCIT and consequential assessment proceedings before the AO, she had appeared through her Authorized Representative and filed necessary details. Therefore, from the above sequence of events, it is very clear that subsequent filing of the appeal against the order of the PCIT passed u/s.263 of the Act, is only an afterthought, but not a case of ignorance of law or unaware of provisions in filing of the appeal before the Tribunal against the order of the PCIT u/s.263 of the Act. Therefore, we are of the considered view that there is no merit in the reasons given by the assessee in her petition for condonation of delay in filing of the appeal.
6. Be that as it may. Coming back to the legal position evolved by the decision of various High Courts, including the Hon’ble Supreme Court in number of cases, where it has been, time and again, held that when merits and technicalities pitted against each other, then merit alone deserves to be prevailed, because, if you throw out a meritorious case out of judicial scrutiny on the grounds of technicalities, then you may deprive the right of the petitioner in pursuing their case. At the same time, various Courts have held that rules of limitation are not meant to destroy the rights of parties, they are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly, within the time bound prescribed under the Act. Further, in a case, where, for the reasons beyond the control of the petitioner, the appeal could not be filed, then the Courts are well equipped with power to condone the delay, if the petitioner explains the delay in filing of the appeal with a reasonable cause. However, there is no law or mandate in the Act, to condone the delay in each and every case. But, it depends upon all facts of each case and the reasons given by the parties for condonation of delay. Therefore, one has to go by the facts of its own case and the reasons given by the petitioner for condonation of delay. In this case, on perusal of reasons given by the assessee for delay in filing of the appeal, we find that although it appears, the assessee is not deriving any benefit by not filing the appeal within the due date prescribed under the Act, but, from the contents of petition filed by the assessee, we could easily make out a case that the assessee has made an afterthought to file the appeal against the order of the PCIT u/s.263 of the Act, only when she did not get a favourable order from the AO, consequent to the order passed by the PCIT u/s.263 of the Act. Therefore, in our considered view, for these vague reasons, such huge delay of 581 days in filing of the appeal, cannot be condoned.
7. As regards, the case law relied upon by the assessee in the case of Mr.Imam Syed Abdul Kamal Nazar v. ITO in dated 02.06.2022, as we have already stated in earlier part of this order, condonation of delay, has to be examined based on facts of each case. However, it does not depend upon observations of any Court or Tribunal in some other case. Although, in the case law referred by the Ld. Counsel for the assessee, the Tribunal has condoned the delay of 486 days in filing of the appeal, but the said findings of the Tribunal is based on facts of those case and as per the facts of the above case, the assessee himself had represented his case before the PCIT through his Accountant without any help from Professional or /Chartered Accountant or /Advocate. Under those facts, the Tribunal came to the conclusion that although the ignorance of law is not an excuse, but it cannot be expected from each person to know laws of this country. In so far as the arguments of the Ld. Counsel for the assessee, in light of decision of the Hon’ble Supreme Court in the case of Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh &Ors.(supra) that ignorance of law is also an excuse, but if you examine the facts of the present case, we are of the considered view that the assessee is not ignorant of law, because, she was well aware of the Income Tax proceedings and further, hired professional Chartered Accountant, for representing her case. Therefore, we are of the considered view that the assessee cannot claim that she was ignorant of law and because of her ignorance, she could not file appeal against the order of the PCIT u/s.263 of the Act. Thus, we are of the considered view that the case laws relied upon by the assessee, are not applicable to the facts of the present case.
In this view of the matter and considering the facts and circumstances of the case, we are of the considered view that the assessee had failed to make out a prima facie case for condonation of delay of 581 days in filing of the appeal before the Tribunal. Further, the reasons given by the assessee in her Affidavit does not come under reasonable cause as prescribed under the Act, for condonation of delay. Hence, we reject the petition filed by the assessee for condonation of delay and dismiss the appeal filed by the assessee. By considering the submissions of the ld. Counsel as well as vague reasons stated in the affidavit filed by the assessee for condonation of delay, we are of the considered opinion that the reasons given by the assessee in the affidavit does not come under reasonable cause for condonation of delay, as prescribed under the Act and thus, the petition filed by the assessee for condonation of delay is rejected. Since we have rejected the petition for condonation of delay in filing the appeal before the Tribunal, the appeal filed by the assessee is not maintainable and accordingly, the appeal filed by the assessee is dismissed
In the result, the appeal filed by the assessee is dismissed.
Order pronounced on 26th April, 2023 at Chennai.