BRIJESH CHARITABLE TRUST,PANIPAT vs. ACIT, PANIPAT

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH: ‘SMC’ NEW DELHI

BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER

ITA No.4666/Del/2018 Assessment Year: 1993-94 With ITA No.4667/Del/2018 Assessment Year: 1994-95 With ITA No.2783/Del/2012 Assessment Year: 1993-94 With ITA No.2784/Del/2012 Assessment Year: 1994-95

M/s. Brijesh Charitable Vs. ACIT, Trust, Circle-Panipat C/o- M/s. Sohan Lal Veer Bhan, Shop no. 50, New Wool Market, Panipat (Haryana) PAN :AAATB9939P (Appellant) (Respondent)

Appellant by Sh. K. Sampath, Advocate Sh. V. Rajkumar, Advocate Respondent by Sh. Om Prakash, Sr. DR Date of hearing 30.05.2022 Date of pronouncement 27.07.2022 ORDER

Captioned appeals by the same assessee arise out of two

separate orders of learned Commissioner of Income Tax (Appeals),

Karnal for the assessment years 1993-94 and 1994-95.

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ITA No.4666/Del/2018 for AY: 1993-94 ITA No.4667/Del/2018 for AY: 1994-95

learned Commissioner (Appeals) while deciding assessee’s appeals

against the assessment orders passed under section 144 of the

Income-tax Act, 1961 (for short ‘the Act’) on 28.02.2005. The

Registry has pointed out delay of 3853 days in filing these appeal.

Therefore, at the outset, we have to address the issue of

condonation of delay.

condonation of delay. Along with memorandum of appeal, the

assessee has filed an application seeking condonation of delay

without any affidavit. The contents of the application seeking

condonation of delay in both the assessment years under dispute

are identical and read as under:

“The ex-parte revisional assessment order in the above case was received sometimes in March, 2005. Thereafter an application was moved for correction of the order u/s 154 of the I.T. Act, 1961. That order was passed on 10.01.2012. Soon thereafter the Ld. CIT(A) dismissed the appeal filed by the assessee on this issue on 30.03.2012. Against that order an appeal has been filed on 07.08.2012 before the Hon’ble Tribunal vide Appeal No.2784/D/2012 at Delhi. The said appeal is pending before the ‘A’ Bench. 2. While preparing for this appeal the Counsel of the Appellant before the Hon’ble Tribunal advised that it was necessary to challenge the appellate order in the quantum also as determined in appeal by order dated 03.10.2007 passed by the Ld. CIT(A). For this purpose the

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present appeal is being filed. There is apparently a delay of 130 months in filing this appeal. That delay is attributed to the time expanded by the assessee in pursuing the other appeal on virtually the same points. The delay has occurred because the assessee did not know the correct course of action in the circumstances of the case. Now that the Counsel arguing the matter in the Hon’ble Tribunal has advised for filing the appeal the assessee has taken expeditious and earnest steps in filing the appeal. The merits of the appeal behove the condonation of this delay in filing this appeal apart from the plausible reasons as adumbrated herein above.”

seeking condonation of delay, the reason shown by the assessee is

while preparing for filing of appeals against orders passed by

learned Commissioner (Appeals) in the proceedings arising out of

order passed by the Assessing Officer under section 154 of the Act,

the counsel for the assessee had advised that it is necessary to

challenge the orders passed by learned Commissioner (Appeals) in

quantum proceedings. Hence, on such advice, the assessee has

filed these appeals.

for the assesse has submitted, based on a complaint lodged by

custom authority, the assessment in case of the assessee was

reopened and assessment orders were passed. Subsequently, the

Additional Chief Metropolitan Magistrate, New Delhi, vide order

dated 05.06.2009 has quashed the complaint. Thus, it was

submitted that the delay in filing of appeal is, therefore,

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attributable to the time taken in the collateral proceedings for the

closure of the case. It was submitted that the delay in filing the

appeal is not due to any deliberate negligence on the part of the

assessee. Thus, he submitted, the appeals may be admitted for

hearing on merits after condoning the delay. In support of his

contention, he relied upon a case of the Coordinate Bench in case

of ACIT Vs. Container Corporation of India Ltd. & Ors, ITA No.

1555/Del/2012 and Ors., dated 23.02.2018.

condonation of delay.

materials on record. As could be seen, as per assessee’s own

admission, the impugned orders of learned Commissioner

(Appeals) were served on the assessee on 08.10.2007. Whereas, the

appeals have been filed before the Tribunal on 25.06.2018. Thus,

there is a delay of 3853 days in filing these appeals. In other words,

the appeals have been filed with inordinate delay of more than 10

years. Right to appeal under the Income Tax Act is a statutory right

circumscribed by conditions prescribed in the statute. Section

253(1) permits the assessee to file an appeal before the Tribunal

against orders specified therein. Sub-section (3) to section 253

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prescribes the period of limitation of 60 days for filing the appeal

before the Tribunal. However, sub-section (5) to section 253

empowers the Tribunal to admit an appeal filed beyond the period

of limitation, if it is satisfied that there was sufficient cause for not

presenting it within that period. Therefore, the power to condone

delay under sub-section (5) to section 253 is neither automatic nor

to be exercised in vaccum. The condition precedent for condoning

delay is, the appellant must establish that the delay in filing the

appeal was due to sufficient cause.

above, if we examine the cause shown by the assessee for filing the

appeal belatedly, it is to be noted that in the delay condonation

application filed along with appeal memo, the assessee has simply

submitted that the delay has occurred as the assessee did not knew

the correct course of action to be taken and based on advice of its

counsel, he filed these appeals. Whereas, in the written submission

filed in course of hearing of appeal, a completely different stand

has been taken by the assessee by submitting that the delay in

filling of appeal was due to time taken in the collateral proceeding

for the closure of the case. In other words, the assessee has

attributed the delay to the proceedings undertaken before the

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Additional Chief Metropolitan Magistrate, Delhi, for quashing the

complaint filed by the customs authorities. As far as the reason

shown in the application seeking condonation of delay filed along

with appeal memo, they are not at all satisfactory and, to say the

least, vague. Even, the application seeking condonation of delay

was not supported by any affidavit. Therefore, the reason shown

for condonation of delay in the application does not establish

sufficient cause in terms with sub-section (5) of section 253 of the

Act.

proceedings before Additional Chief Metropolitan Magistrate, New

Delhi, there was delay in filing the appeals, in my view, this reason

also does not hold good. As per assessee’s own admission, the

Additional Chief Metropolitan Magistrate, New Delhi, passed the

order quashing the complaint on 05.06.2009. Whereas, the present

appeals have been filed by the assessee in June, 2018, almost after

9 years. Therefore, the huge gap between the date on which the

Additional Chief Metropolitan Magistrate, New Delhi, passed the

order quashing the complaint and the actual date of filing the

appeals remains unexplained. As could be seen from record,

against the orders passed by the first appellate authority in

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quantum proceeding the assessee, originally, did not file any

appeal before the Tribunal. Rather, he attempted to test his luck

by filing rectification application under section 154 of the Act

before the Assessing Officer to rectify the assessment orders. When

the rectification applications were dismissed and the appeals

against such rectification orders were also dismissed by learned

Commissioner (Appeals). Sometime in 2012, the assessee

preferred appeals before the Tribunal.

apprehending that the appeals may not succeed, challenged the

orders of learned Commissioner (Appeals) passed in quantum

proceedings preferred the present appeals. In my view, such

decision taken by the assessee for filing appeals against the orders

passed by learned Commissioner (Appeals) in quantum proceeding

is only an afterthought. Once, the assessee has abandoned its

statutory right of filing the appeals and has consciously taken such

decision, he cannot again be permitted to pursue that right. More

so, after considerable lapse of time, which in the present case is

more than 10 years. Therefore, when the issue is, more or less,

settled due to efflux of time, it cannot be permitted to be revived

again because one of the parties to the lis suddenly wakes up and

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comes forward to file appeals without providing any valid and

genuine ground for condonation of delay. The decision cited by

learned counsel for the assessee would be of no help as the issue

whether, in a particular case the delay is to be condoned or not is

purely factual and has to be decided based on facts involved in a

particular case. In any case of the matter, in the case cited before

us, the delay in filing of appeals were of 585 and 502 days.

Whereas, in the facts of the present appeals there is inordinate

delay of more than 10 years. Since, in my considered opinion, the

assessee has miserably failed to explain cause of delay

satisfactorily, the delay cannot be condoned. Accordingly, declining

to condone delay, I dismiss the appeals without admitting them.

ITA No.2783/Del/2012 for AY: 1993-94 ITA No. 2784/Del/2012 for AY:1994-95

of the Act.

the assessee did not file any return of income voluntarily under

section 139(1) of the Act. Therefore, the Assessing Officer reopened

the assessment under section 147 of the Act. In response to notice

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issued under section 148, the assessee did not file any return of

income. Even, the assessee did not appear in course of assessment

proceeding. Therefore, the Assessing Officer proceeded to complete

the assessment to the best of his judgment under section 144 of

the Act. While doing so, he determined the total income of Rs.40

lakhs in both the assessment years under dispute. The assessment

orders so passed were subjected to proceedings under section 263

of the Act and vide orders dated 13.09.2003, learned Commissioner

of Income Tax (CIT) set aside the assessment orders with a

direction to frame de novo assessment. In pursuance to the

direction of learned CIT, the Assessing Officer again initiated

assessment proceedings. However, the assessee again defaulted in

complying with the statutory notices issued by the Assessing

Officer. Therefore, the Assessing Officer proceeded to complete the

assessment to the best of his judgment under section 144 of the

Act. Against the assessment orders so passed, the assessee

preferred appeals before learned Commissioner (Appeals).

However, the appeals were dismissed.

Commissioner (Appeals), the assessee on 05.01.2012 moved

applications under section 154 for rectification of the assessment

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orders. The reason being, the complaint by the customs authority,

based on which, the assessments were reopened under section 147

of the Act, in the meanwhile, has been quashed by the Additional

Chief Metropolitan Magistrate, New Delhi, vide order dated

05.06.2009. While considering the applications filed under section

154 of the Act, the Assessing Officer observed that the rectification

applications have been filed after expiry of four years from the end

of the financial year, in which, the assessment orders sought to be

amended, were passed. Further, he observed that the order passed

by the Additional Chief Metropolitan Magistrate, New Delhi,

quashing the complaint filed by the customs authority will not have

any impact on income tax proceedings. Accordingly, he dismissed

the applications filed by the assessee. Though, the assessee

challenged the orders passed under section 154 of the Act before

learned Commissioner (Appeals), however, it was unsuccessful.

stand taken before the departmental authorities. Further, he

submitted, the limitation prescribed under section 154 of the Act

would not apply in a case where effect has to be given to an order

of the court.

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the observations of the Assessing Officer.

relied upon and perused the materials on record. The facts on

record clearly reveal that after the quantum appeals were

dismissed by learned Commissioner (Appeals), the assessee

instead of immediately filing any appeal before the Tribunal within

the period of limitation prescribed under section 253 of the Act,

filed applications under section 154 of the Act seeking rectification

of the assessment orders. Admittedly, the rectification applications

were filed beyond the period of 4 years prescribed under section

154 of the Act. Thus, from the aforesaid facts, it is very much clear

that the assessee was pursuing a kind of trial and error method in

the matter of seeking relief against the assessment orders. When

the assessee failed in its attempt to get desired relief in the

quantum proceeding, he tried his luck again by filing applications

under section 154 of the Act, that too, much after the expiry of

period of limitation. Therefore, the Assessing Officer, being bound

by the statutory provisions, could not have extended the period of

limitation. The contention of learned counsel for the assessee that

limitation requirements of section 154 of the Act would not apply,

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as, effect was to be given to court orders, is fallacious considering

that the order passed by the Additional Chief Metropolitan

Magistrate, Delhi, is in respect of a completely separate proceeding

and has no impact, whatsoever, in the proceedings before the

Income Tax Authorities. In any case of the matter, I am of the view

that the so called mistake sought to be rectified by the assessee,

certainly, does not fall in the category of mistake apparent on the

face of record as envisaged under section 154 of the Act. Therefore,

in my considered opinion, learned Commissioner (Appeals) was

justified in upholding the decision of the Assessing Officer. The

grounds raised by the assessee, being devoid of merits, are

dismissed. Accordingly, appeals are dismissed.

Order pronounced in the open court on 27th July, 2022

Sd/- (SAKTIJIT DEY) JUDICIAL MEMBER

Dated: 27th July, 2022. RK/- Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi