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Income Tax Appellate Tribunal, ‘A’ BENCH, KOLKATA
Before: Shri Rajpal Yadav, Vice-(KZ) & Dr. Manish Borad
Per Rajpal Yadav, Vice-President (KZ):- The assessee is in appeal before the Tribunal against the order of ld. Commissioner of Income Tax (Appeals)-3, Kolkata dated 30.11.2017 passed for Assessment Year 2012-13.
Assessment Year: 2012-2013 Krishna Web Tech (P) Limited 2. In response to the notice of hearing, Shri Rajib Kumar, Advocate, earlier appeared. His Power of Attorney is available on the record but after seeking adjournment of one or two occasions, he dropped appearing before the Tribunal. Notices issued to the assessee, every time returned un-served with the Postal remark “Addressee Moved”, in other words not available on the given address.
3. We find that the assessee has filed its return of Rs.7,216/- on 29.09.2012. The ld. Assessing Officer selected this case for scrutiny and found huge share application money along with the share premium introduced by the assessee during the year. He sought explanation of the assessee, but assessee failed to submit anything. The ld. Assessing Officer under the compelling circumstances passed an ex-parte assessment under section 144 of the Income Tax Act. In other words, in this assessment, income of the assessee was determined according to the best judgment of the ld. Assessing Officer. The ld. Assessing Officer has not discussed in detail about the share applicants and other circumstances, but he has made an addition of Rs.1,34,69,80,000/-. He also made addition under section 14A of the Income Tax Act i.e. disallowed the expenditure relatable to earning of alleged tax-free income.
4. Against this assessment order, the assessee filed an appeal before the ld. CIT(Appeals) and the appeal was also decided ex-
Assessment Year: 2012-2013 Krishna Web Tech (P) Limited parte. The ld. 1st Appellate Authority has made discussion about each share applicant and thereafter concurred with the ld. Assessing Officer.
5. On account of above absence of assessee, we heard the appeal ex-parte with the assistance of ld. D.R.
We find that the impugned order was passed on 30.11.2017. The assessee has alleged that it came to know about the impugned order on 15.03.2020. Therefore, the assessee is counting the period of limitation from this date, whereas the assessee is required to explain the delay from the date of its passing. The appeal is hopelessly time-barred and in order to explain the delay, an affidavit is being filed from Shri Sashi Kant Agarwal. Such affidavit reads as under:-
Assessment Year: 2012-2013 Krishna Web Tech (P) Limited
Assessment Year: 2012-2013 Krishna Web Tech (P) Limited
With the assistance of ld. CIT(DR), we have gone through the record carefully. Sub-section 5 of Section 253 contemplates that the Tribunal may admit an appeal or 5
Assessment Year: 2012-2013 Krishna Web Tech (P) Limited permit filing of memorandum of cross- objections after expiry of relevant period, if it is satisfied that there was a sufficient cause for not presenting it within that period. This expression sufficient cause employed in the section has also been used identically in sub-section 3 of section 249 of Income Tax Act, which provides powers to the ld. Commissioner to condone the delay in filing the appeal before the Commissioner. Similarly, it has been used in section 5 of Indian Limitation Act, 1963. Whenever interpretation and construction of this expression has fallen for consideration before Honble High Court as well as before the Honble Supreme Court, then, Honble Court were unanimous in their conclusion that this expression is to be used liberally. We may make reference to the following observations of the Hon’ble Supreme court from the decision in the case of Collector Land Acquisition Vs. Mst. Katiji & Others, 1987 AIR 1353: 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
Refusing to condone delay can result in a meritorious matter being thrown out 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. 6
Assessment Year: 2012-2013 Krishna Web Tech (P) Limited
"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 pragmatic manner.
When substantial justice and technical considerations are pitted against each other, 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.
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.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
Assessment Year: 2012-2013 Krishna Web Tech (P) Limited 8. Similarly, we would like to make reference to authoritative pronouncement of Honble Supreme Court in the case of N. Balakrisknan Vs. M. Krishnamurtky (supra). It reads as under: “Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi lain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that 8
Assessment Year: 2012-2013 Krishna Web Tech (P) Limited the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss”.
We do not deem it necessary to re-cite or recapitulate the proposition laid down in other decisions. It is suffice to say that the Honble Courts are unanimous in their approach to propound that whenever the reasons assigned by an applicant for explaining the condonation of delay, then such reasons are to be construed with a justice oriented approach.
In the light of above, we have examined the facts. The Hon’ble Courts are unanimous in their approach to propound that whenever any explanation of the assessee falls for consideration about the delay in filing the appeal, then such explanation is to be appreciated with a justice oriented mind. However, we find that it is a shell company, which is trying to play with the Income Tax Authorities and the position of law. It has been filing the appeal only for the sake of filing otherwise not contesting the litigation and not justifying anything. After perusing the whole record, which has been brought to us, we are of the view that it is not a case where delay even if of any number of days deserves to be condoned. Therefore, we reject this Assessment Year: 2012-2013 Krishna Web Tech (P) Limited application of the assessee and dismiss the appeal being time- barred.