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Income Tax Appellate Tribunal, -SURAT-BENCH-SURAT
Before: SHRI SANDEEP GOSAIN & SHRI O.P.MEENA, ACCOUTANT MEMBER
NONE िनधा�रती क� ओर से /Assessee by Mrs. Anupama Singla, Sr.D.R. राज�व क� ओर से /Revenue by 03.02.2020 सुनवाई क� तारीख/ Date of hearing: 03.02.2020 उ�ोषणा क� तारीख/Pronouncement on आदेश /O R D E R PER PENCH: 1. The above captioned appeals by the Assessee are directed against the order of learned Commissioner of Income tax (Appeals)- Valsad (in short “the CIT (A)”) all dated 15.04.2016 pertaining to Assessment Years 2013-14 to 2015-16 arising out of support orders SBI v. ACIT(CPC)Ghaziabad /I.T.A.No. 3419 to 3423/ AHD/2016/A.Y.-13 to 15-16 Page 2 of 16 passed under section 154 read with section 200A of Income Tax Act, 1961 (in short ‘the Act’) by the Assistant Commissioner of Income Tax(CPC) Ghaziabad (in short “the AO”).
2. The above appeals were heard together and being decides by common order for the sake of brevity and convenience. I.T.A.No. 3419/AHD/2016/ A.Y. 2013-14; 3. The Ground No. 1 relates to non condoning delay in filing of appeal before CIT (A).
4. The assessee submitted before the CIT (A) found that there is delay in these appeal ranging between 101 days to 701 days in filing of appeal before him. The assessee has filed a chart showing delay for various quarters for filing of appeal. The main reason for delay is claimed as that the notice were received at the branch level of the bank. It was further submitted that the appellant being a public Sector bank, it has to take permission through proper channel for filing of appeals which consumes a considerable time. The delay beyond 30 days was due to the following approval procedure prevalent in bank. The appellant has neither done intentional delay if filing of appeal or gained anything for delaying the same.
5. However, Ld. CIT (A) observed that there is no doubt that there might be some internal procedure in the bank to get approval of SBI v. ACIT(CPC)Ghaziabad /I.T.A.No. 3419 to 3423/ AHD/2016/A.Y.-13 to 15-16 Page 3 of 16 competent authority to file appeal. Here the appellant has claimed that the delay occurred due to following prescribed procedure, but no evidence in support of the same has been filed. The appellant was required to establish that there were circumstances which were his beyond control. The appellant has not filed any evidence when the order under section 154 of the Act was received. When the appellant initiated the processes of getting approval of competent authority and also when competent authority conveyed the approval and in turn received by the appellant. In such a situation, the veracity of the submissions of the assessee`s claim was remained as unsubstantiated. Further the assessee has not filed hard copy of the order under section 154 of the Act. The delay has been admitted by the assessee himself by filing of appeal. As there is no corroborating evidences with submissions of the appellant regarding cause of delay. Therefore, Ld. CIT (A) held that there was no genuine cause for delay hence, delay was not condoned and the appeal of the appellant was treated as nonest in the eyes of law.
Being, aggrieved the assessee filed this appeal before the Tribunal. The learned counsel for the assessee submitted that the notice the assessee has received a demand notice offer demand of Rs. 1000 under section 234E for late filing of TDS return for the SBI v. ACIT(CPC)Ghaziabad /I.T.A.No. 3419 to 3423/ AHD/2016/A.Y.-13 to 15-16 Page 4 of 16 assessment year 20131-14. However, the assessee is not in Stay Petition No. of notice for said matter, therefore, the assessee could not file the appeal within the time allowed for filing of appeals The reasons for delay was given as the notice are being received at branch level of the State Bank of India located at Vyara region. All branches are given limited power related to banking business. he branches are not having powers to take decision related to income-tax proceedings and other taxation matters. The bank has to follow up the proper channel of approval i.e. the branch has to send approval letters to Regional Banking Office located in Navsari city. The Regional Banking Office has to take approval from Local Head Office, which is located at Ahmedabad who has to decide the steps to be taken in the important matters. Further, the Ahmedabad Local Head Office has to follow the proper cycle of appointment of the Legal Advisor. As the assessee is Public Sector Bank and has to go with explained proper channel of approval for filing of appeal, it has consumed the much time. Further, the assessee is a Public Sector Bank and frequency of the transfer / promotion of the approving authority is high which has also delayed the approval of filing of appeal. Thus, the delay beyond 30 days was due to the approval procedure in the Nationalised Bank. However, the assessee has neither done intentional delay in filing of SBI v. ACIT(CPC)Ghaziabad /I.T.A.No. 3419 to 3423/ AHD/2016/A.Y.-13 to 15-16 Page 5 of 16 appeal nor gained anything by delaying the matter. Therefore, it was requested before us that the delay in filing of appeal may be condoned and appeal be entertained on merits.
Per contra, the ld. Sr. D.R. relied on the orders of lower authorities.
We have heard the rival submissions and perused the relevant material on record. We are of the view that it is settled law that the Courts are quasi- judicial bodies and are empowered to condone the delay if the litigant satisfies the Court that there were sufficient reasons for the availing the remedy after the expiry of the limitation. Such a reasoning should be to the satisfaction of the Court. The expression sufficient cause or reason as provided in subsection (5) of section 253, subsection (3) of section 249 of the Income Tax Act 1961 is used in identical terms in the Limitation Act and the CPC. Such expression has also been used in under section 273B of the Act, 1961. The expression “’sufficient cause” within the meaning of Section 5 of Limitation Act as well as a similar other provisions and the ambit of exercise of powers thereunder have been subject matter of consideration before the Honourable Apex Court on various occasions. In the case of the State of West Bengal vs. Administrator, Howrah Municipality, AIR 1972 SC 749 , the Hon`ble Supreme Court, SBI v. ACIT(CPC)Ghaziabad /I.T.A.No. 3419 to 3423/ AHD/2016/A.Y.-13 to 15-16 Page 6 of 16 while considering the scope of the expression of sufficient cause for condonation of delay, has held that the said expression should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bonafide is imputable to the party. In the case of N. Balakrishnan vs. M. Krishnamurthy AIR (1998) 7 SC 124, (SC) there was a delay of 883 days in filing of application in setting aside the ex-parte decree for which application for condonation of delay was filed. The trial Court having found that sufficient cause was made out for condonation of delay condoned the delay. The Hon`ble Supreme Court while restoring the order of the trial Court has of observed that condonation of delay is matter of discretion of the court. Section 5 of Limitation Act says that discretion can be exercised only if the delay is within reasonable limit. Length of delay is no matter; acceptability of the explanation is the only criterion. ….. There is no presumption that delay in approaching the court is always deliberate. The words “sufficient cause” under section 5 of the Limitation Act should receive a liberal construction to advance substantial justice. The Hon`ble Supreme Court further observed that rules of limitation are not meant to destroy the rights of the parties. They are meant to see that the parties do not resort to dilatory tactics but seek the remedy SBI v. ACIT(CPC)Ghaziabad /I.T.A.No. 3419 to 3423/ AHD/2016/A.Y.-13 to 15-16 Page 7 of 16 promptly. The Hon`ble Apex Court further observed that the refusal to condone the delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that the delay in approaching the Court is always deliberate. The Hon`ble Supreme Court in SLP Civil No. 12980 of 1986, decided on 19th February 1987, in the case of Collector, Land Acquisition, v. Mst. Katiji [1987] 167 ITR 471 (SC) : 1987 AIR 1353 has observed as under: “The legislature has conferred the power to condone delay by enacting Section 51 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on ‘merits’. The expression “sufficient cause” employed by the legislature is adequately elastic to enable the courts to apply the law in a meaning- full manner which sub-serves the ends of justice–that being the life- purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-
SBI v. ACIT(CPC)Ghaziabad /I.T.A.No. 3419 to 3423/ AHD/2016/A.Y.-13 to 15-16 Page 8 of 16
“Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.”
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.
“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.
SBI v. ACIT(CPC)Ghaziabad /I.T.A.No. 3419 to 3423/ AHD/2016/A.Y.-13 to 15-16 Page 9 of 16
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.
Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the ‘State’ which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a step motherly treatment when the ‘State’ is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic SBI v. ACIT(CPC)Ghaziabad /I.T.A.No. 3419 to 3423/ AHD/2016/A.Y.-13 to 15-16 Page 10 of 16 methodology imbued with the note-making, file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression “sufficient cause”. So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time barred, is therefore, set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides. Appeal is allowed accordingly. No costs.”
SBI v. ACIT(CPC)Ghaziabad /I.T.A.No. 3419 to 3423/ AHD/2016/A.Y.-13 to 15-16 Page 11 of 16
In the light of above cited judgements, if we examined the facts of the present case, we find that the original order under section 154 read with section 200A was passed by the ACIT- CPC Ghaziabad was never received by the assessee nor the same is in possession of the assessee. The assessee has only taken the printout of demand notice for Rs. 1000 through web site of income-tax Department. The assessee being a Public Sector Bank has to obtained approval through proper channel approval of competent authority, by sending the note administrative office and who will send a note Regional Banking Office, situated at Navsari and who and who in turn has to seek approval from Local Head Office. However, this explanation as offered by the assessee, was not found acceptable by the CIT (A), in absence of evidence of such delay. We find that the explanation provided by the assessee is that all branches are given limited power related to banking business. he branches are not having powers to take decision related to income-tax proceedings and other taxation matters. The bank has to follow up the proper channel of approval i.e. the branch has to send approval letters to Regional Banking Office located in Navsari city. The Regional Banking Office has to take approval from Local Head Office, which is located at Ahmedabad who has to decide the steps to be taken in the important matters. Further, SBI v. ACIT(CPC)Ghaziabad /I.T.A.No. 3419 to 3423/ AHD/2016/A.Y.-13 to 15-16 Page 12 of 16 the Ahmedabad Local Head Office has to follow the proper cycle of appointment of the Legal Advisor. As the assessee is Public Sector Bank and has to go with explained proper channel of approval for filing of appeal, it has consumed the much time. Further, the assessee is a Public Sector Bank and frequency of the transfer/promotion of the approving authority is high which has also delayed the approval of filing of appeal. Thus, the delay beyond 30 days was due to the approval procedure in the Nationalised Bank. However, the assessee has neither done intentional delay in filing of appeal nor gained anything by delaying the matter. We note that local branch office does not know each and every intricacies of tax laws and, was not given power to delay with income-tax matters, therefore, has to depend on tax advice and approval from competent authority for which necessary advisor are to be appointed as legal advisor. The bank being Public Sector Bank where frequent transfer and promotion happens. Therefore, we find that circumstances are beyond the control of the assessee bank branch. Therefore, eventually, an overall view in the interest of justice has to be taken. None should be deprived of an adjudication on merits, unless the Court of law or the Tribunal/Appellate Authority finds that the litigant has deliberately and intentionally delayed in filing of appeal, SBI v. ACIT(CPC)Ghaziabad /I.T.A.No. 3419 to 3423/ AHD/2016/A.Y.-13 to 15-16 Page 13 of 16 that he is careless, negligent and his conduct is lacking bona-fides. In the case in hands, the branch has to act as per advice of Head Office, hence, which consumed sfct period of time, therefore, it could not be regarded as negligence or of lacking of bona-fides. We are of the considered opinion that CIT (A) was not justified in refusing to condone the delay in filing of appeal, hence, we condone the delay in filing of appeal and remit back the appeal to CIT(A) to be decide on merits. The Hon’ble Gujarat High Court in the case of Jayvant Singh Vaghela v. ITO [2013] 40 taxmann.com 491 (Guj) wherein it was held that it is cardinal principle of law that normally by and large the appeals are required to be decided on the merits rather than dismissing the same on technical ground like delay etc. unless there is gross negligence on the part of the assessee and/or there was any malafide intention on the part of the assessee in not preferring the appeal within the period of limitation and/or in filing the appeals belatedly. Further the Hon`ble Jurisdictional High Court in above case (supra) has laid down the cardinal principle of law that normally by and large the appeals are required to be decided on the merits rather than dismissing the same on technical ground like delay etc., therefore, the decision relied on by the CIT (A) rather supports the cause of the assessee. In view of aforesaid facts and circumstances SBI v. ACIT(CPC)Ghaziabad /I.T.A.No. 3419 to 3423/ AHD/2016/A.Y.-13 to 15-16 Page 14 of 16 sof the case, it is apparent that the assessee has been vigilant in its approach and has not neglected the Income tax proceedings. The Hon`ble Supreme Court in the case of N. Balakrishnan (supra) has observed that the length of the delay is immaterial. The acceptability of the explanation is the only criteria for condoning the delay. In a given case and, delay of the shortest period of time may be un- condonable due to unacceptable explanation, whereas in certain other cases, delay of a long period can be condoned, if the explanation is satisfactory. In every case of delay, there might be some omissions of negligence on the part of the assessee Maxtor mind such omissions/negligence has to be weighed in the light of exist circumstances of each case. It would the negligence of commission is a byproduct of a deliberate attempt with mala-fide intention for delay the process of the litigation which could give some benefit to the litigant, then probably process of litigation which would view some benefit with the litigant then probably that delay would not deserved to be condoned. However, if no mala-fide can be attributed to the delay, that delay will be condonable. Therefore, on the facts of the present case, we are of the considered opinion that the assessee has been able to demonstrate sufficient cause and reasons for filing an appeal before the CIT (A). Therefore, we deem it fit to SBI v. ACIT(CPC)Ghaziabad /I.T.A.No. 3419 to 3423/ AHD/2016/A.Y.-13 to 15-16 Page 15 of 16 condone the delay of in all above appeals ranging between 101 to 702 days and direct the CIT (A) to admit the appeal and decide the same de novo afresh in accordance with law on merit of the case all the grounds of appeal
in all above captioned appeals. Accordingly, the above captioned appeals are set-aside to the file of the CIT (A) for fresh adjudication on merits of the case. I.T.A.No. 3420/AHD/2016/A.Y. 2014-15/ by the assessee: Vyra Branch:
10. Since the facts for assessment year 2014-15 are same as discussed in I.T.A.No. 3419/AHD/2016 for A.Y. 2013-14, hence, delay in filing of appeal is condoned for the reasons as discussed above and issue remitted set-aside to file of the Ld. CIT (A) for a afresh adjudication after admitting the appeal. I.T.A.No. 3421 to 3423/AHD/2016/A.Y. 2013-14, 2014-15 and A.Y. 2015-16/ by the assessee: Ahwa Branch:
11. Since the facts for assessment year 2014-15 are same as discussed in I.T.A.No. 3419/AHD/2016 for A.Y. 2013-14, hence, delay in filing of appeal is condoned for the reasons as discussed above and issue remitted set-aside to file of the Ld. CIT (A) for afresh adjudication after admitting the appeal for assessment year 2013-14 SBI v. ACIT(CPC)Ghaziabad /I.T.A.No. 3419 to 3423/ AHD/2016/A.Y.-13 to 15-16 Page 16 of 16 to 2015-16 in respect of Ahwa Branch of SBI in I.T.A.No. 3421 to 3423/AHD/2016.
12. In the result, appeal of the assessee in I.T.A.No. 3419 to 3423/AHD/2016 for the assessment year 2013-14 to 2015-16 in respect of both branch i.e. Vyara and Ahwa branches are allowed for statistical purpose.
13. The order pronounced in the open Court on 03.02.2020.