ATTIVO PROTEZIONE PRIVATE LIMITED,MUMBAI vs. INCOME TAX OFFICER WARD-22(1)(1), LALBAUG

6 To understand the scope of the term “sufficient cause” in matters of delay, reliance is placed on the decision of Hon'ble Supreme Court in the case of Basawaraj and Ors vs The Special Land Acquisition Officer, AIR 2014 SC 746 wherein the Hon'ble Supreme Court held that the sufficient cause does not include the negligent manner in which the applicant had acted or/ and there was a want of bona fide, on his/her part. If a party does not act diligently or remains inactive, it cannot qualify as sufficient ground allowing the court to exercise discretion in favour of such a party. Condonation of delay is not an automatic right but requires the person requesting it to provide a valid explanation for each day of delay and demonstrate a reasonable cause. “Sufficient Cause” cannot be liberally interpreted, if negligence, inaction or lack of bona fides is attributed to the party. In the case of Anshul Agarwal vs New Okhla Industrial Development Authority (2011) 14 SCC 578, the hon’ble Apex Court held that the reason provided for the delay must be something beyond the individual's control that prevented them from approaching the Court. 7 It is well established in law that the period of limitation has to be construed somewhat strictly as it has the effect of vesting for one and taking away right from the other. To condone the delay in a mechanical or a routine manner may amount to jeopardizing the legislative intent behind Section 5 of the Act. Where the parties chose to sleep over their rights for prolonged periods without any just cause, can hardly claim equity in justice particularly faced with the statutory provisions of Section 5 .In construing enactments which provide period of limitation for institution of proceedings, the purpose is to intimate people that after lapse of certain time from a certain event, a proceeding will not be entertained where a strict grammatical construction is normally the safe guide.

8 The hon’ble Apex Court in the case of N. Balakrishnan V. M. Krishnamurthy, AIR 1998 SC 3222 held as under:- "11. Rules of limitation are meant to see that parties do not resort 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 laundering the remedy may lead to unending uncertainty and consequential anarchy. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

...........parties must act bonafidely, expeditiously and with due care. A casual or a negligent litigant who has acted with utter irresponsible attitude, cannot claim the condonation of delay in law when the right has accrued to the other side. The expression "sufficient cause" will always have relevancy to reasonableness. The actions which can be condoned by the Court should fall within the realm of normal human conduct or normal conduct of a litigant. It is neither expected nor can it be a normal conduct of a public servant or a litigant that they would keep the files unmoved, unprocessed for months together on their tables.

"Where the delay is prolonged and the assessee is not able to show that the delay had occurred in spite of exercise of due attention and diligence, the assessee cannot complain, if the delay is not condoned."

12 The issue of condonation of delay had come up before Hon'ble Orissa High Court in the case of Brijbandhu Nanda (44 ITR 688). The delay was not condoned by the Tribunal and on further appeal, the Hon'ble High Court had held that there is no justification for the delay as under: "Even assuming that the questions referred are questions of law, I am of opinion that there was no error on the part of the Tribunal in not condoning the delay in Its discretion. In fact, as appears from the assessee's own petition for condonation of delay in 86 and 87 of 1954-55 dated May 5,

1955, the assessee does not appear to have explained why he waited for 56 days after he received the order on February 5, 1954, as aforesaid. It further appears from a letter dated April 9, 1954, from the Assistant Registrar of the Appellate Tribunal, Bombay, that the appeals were received by him on April 7, 1954, that is to say, one day beyond the period of limitation. In view of sub-rule (2) of rule 7, which provides that a memorandum of appeal, sent by post, shall be deemed to have been presented to the Registrar or to the officer authorised by the Registrar, on the day on which it is received in the office of the Tribunal at Bombay, it is clear that the appeals were received by the Registrar out of time. We have discussed the general mandatory aspect of the provisions of the Act and the rules thereunder in our decision in Govinda Chowdhury V. Commissioner of Income-tax referred to above............Thus, even the delay of one day was not condoned by the Hon'ble Orissa High Court.

13 Moreover, in cases where the assessee has not come up clean and the reasons given are not based on facts, the delay cannot be condoned merely because of sympathy. It was so decided in the case of Mewa Ram (Deceased by L. Rs) &Ors. v. State of Haryana, AIR 1987 SC 45.The Hon'ble Supreme Court have time and again held that when mandatory provision is not complied with and that delay is not properly satisfactorily and convincingly explained, the court cannot condone the delay on sympathetic grounds alone. In the case of Jagdish Lal and Others V.s State of Haryana (1996) 6 SCC 267 wherein it was observed by the Hon'ble court that the appellant kept on sleeping for the period and suddenly decided to file the appeal. Again Hon'ble High Court of Rajasthan & Others, in the case of M/s. Binami Cement Limited Vs. State of Rajasthan & Others, (S.B. (sales Tax) Revision Petition No.556/2011) decided that delay in filing the appeal cannot be condoned for the reason that appellant failed to explain the specifically the delay for the particular period. It has been held that the courts, including the Supreme Court, no doubt have recommended liberal approach in considering applications for condonation of delay, yet the concepts such as liberal approach, justice oriented approach and substantial justice cannot be employed to jettison the substantial law of limitation especially when on facts the authority before which application under section 5 of Limitation Act is filed, finds no justification for the delay.

14 It has been held by the Courts that while considering the application under section 5 of the Limitation Act, the courts do not enjoy unlimited and unbridled discretionary powers and the discretion has to be exercised within reasonable bounds. It has been further held that the discretion under section 5 of the Limitation Act has to be systematically exercised duly informed by reasons and that whims or fancies, prejudices or predilections cannot and should not form the basis of exercising the discretionary powers to condone delay. In the case of Oriental Aroma Chemical Industries Limited Vs. Gujarat Industrial Development Corporation [(2010) 5 SCC 4591, the Hon'ble Supreme Court has held that even while a liberal approach is desirable in condoning the delay of short duration, stricter approach is required to be applied in cases of inordinate delay.

17 Further from the facts emanating from the case, it is coming out clearly that the overall approach of the assessee, throughout has been of prolonging, stretching the matter just to keep the appeal proceedings pending. Thus, on these given facts, I am of the considered view that the delay in filing of the appeal cannot be condoned in absence of any justifiable reason. Though it is well accepted that no appellant derives any benefit by filing a delayed appeal, however the same should not be used as a tool, or an excuse to avoid and prolong and thus delay further consequent proceedings from the Department. Accordingly, in this case, the assessee has not been able to explain the reason for delay for the entire period and has merely taken a general plea based on general reasons.