JAYSUKH BABUBHAI GOHIL,MIRA ROAD EAST, THANE vs. ITO, WARD 41(3)(2), MUMBAI, MUMBAI

None appeared on behalf of the assessee when the case was called out repeatedly. From the case records, we note that the summons in the present case were sent by the Registry through speed post as well as by email. More than one month has elapsed since the summons were issued at the address furnished by the assessee in Form No. 36. Therefore, drawing an inference under the General Clauses Act, it is presumed that the summons/notice was duly served upon the assessee.

On the other hand, the Ld. DR present in the court is ready with the arguments; therefore, we have decided to proceed with the hearing of the appeal ex parte.

At the outset, we noted that there was a delay of 191 days in filing the appeal. In this regard, an affidavit has been placed on record. We have heard the Ld. DR and perused the said affidavit. However, in our considered view, the delay of 191 days has not been sufficiently explained. Further, neither the assessee nor anyone on its behalf appeared before us to explain the circumstances resulting in the delay or to substantiate the reasons stated in the affidavit.

The expression “sufficient cause” has not been defined under the Income- tax Act. The Hon’ble Supreme Court, in the cases of Collector, Land Acquisition v. Mst. Katiji (167 ITR 471), Perumon Bhagvathy Devaswom v. Bhargavi Amma (2008) 8 SCC 321 and R.B. Ramlingam v. R.B. Bhavaneshwari (2009), has consistently held that the expression “sufficient cause” should receive a liberal construction so as to advance substantial justice. At the same time, the discretion to condone delay is not automatic. The applicant is required to satisfactorily explain the delay and demonstrate that the delay was occasioned by circumstances beyond its control and was not attributable to negligence, inaction or lack of bona fides.

It is equally well settled that where the delay is substantial, the explanation must be reasonably satisfactory and must cover the entire period of delay. The Court or Tribunal is required to examine whether the conduct of the litigant demonstrates due diligence and whether the explanation inspires confidence. Although a liberal approach is warranted in considering an application for condonation of delay, such liberal approach cannot be extended to condone delay as a matter of course, irrespective of the facts and circumstances of the case.

In the case of State of Gujarat v. Sayed Mohd. Baquir El Edross [AIR 1981 SC 1921], the Hon’ble Supreme Court laid down the principles governing the exercise of the power of condonation of delay under section 5 of the Limitation Act, 1963, including the following:

The party seeking relief has to satisfy the Court that it had sufficient cause for not preferring the appeal within the prescribed period. The explanation has to cover the entire period of delay. A litigant should not be permitted to take away a right which has accrued to the opposite party by lapse of time. After sufficient cause is shown, the Court has to consider, in the exercise of its discretion, whether the delay should be condoned.

The discretion conferred upon the Court is a judicial discretion and must be exercised with a view to advancing substantial justice. Even where there is a strong case on merits, the same by itself cannot constitute a ground for condoning the delay. Where the delay is attributable to the advocate, the Court has to consider whether the mistake was bona fide or whether it was merely a device to cover negligence or laches on the part of the litigant.

It was also held by the Hon’ble Supreme Court in Ramlal, Motilal and Chhotelal v. Rewa Coalfields Ltd. [AIR 1962 SC 361] that the applicant must satisfactorily explain the delay and that a cause which, by due care and attention, could have been avoided cannot ordinarily constitute sufficient cause within the meaning of the limitation provision.

The appellant is also required to demonstrate that the cause for the delay existed during the period of limitation and constituted a sufficient cause for not filing the appeal within the prescribed period. In this regard, reliance may also be placed on the decision of the Hon’ble Supreme Court in Ajit Singh Thakur Singh v. State of Gujarat [AIR 1981 SC 733].

The law of limitation is founded upon the well-known maxims interest reipublicae ut sit finis litium, meaning that litigation must come to an end in the interest of society as a whole, and vigilantibus non dormientibus jura subveniunt, meaning that the law assists those who are vigilant with regard to their rights and not those who sleep over them. The law of limitation seeks to strike a balance between the right of a litigant to pursue a remedy and the need for finality in litigation.

Therefore, delay cannot be condoned merely because the assessee’s case may appear to be hard or may evoke sympathy. In order to obtain the benefit of condonation, the assessee must establish sufficient cause for the delay and demonstrate that it acted with due diligence. The expression “sufficient cause” contemplates a cause which prevented the party from taking the requisite steps within the prescribed period and which was beyond its reasonable control. As observed by the Hon’ble Supreme Court in Ramlal, Motilal and Chhotelal v. Rewa Coalfields Ltd. (supra), a cause which, by due care and attention, could have been avoided cannot ordinarily constitute sufficient cause.

In the present case, having regard to the affidavit placed on record, the submissions made by the Ld. DR, and the fact that neither the assessee nor any person on its behalf appeared before us despite the matter being called out repeatedly, we are of the considered view that the delay of 191 days has not been satisfactorily explained. The explanation furnished does not inspire sufficient confidence so as to enable us to exercise the discretion vested in us under section 253(5) of the Income-tax Act.

It is well settled that the law of limitation may operate harshly against a particular party, but when the statute prescribes a period of limitation, the same has to be applied with its full rigour. A Court or Tribunal cannot extend the period of limitation merely on equitable considerations. The maxim dura lex sed lex— the law is hard, but it is the law—applies in such circumstances.

Having regard to the totality of the facts and circumstances of the present case, we are unable to hold that the assessee has discharged the burden of establishing “sufficient cause” within the meaning of section 253(5) of the Income-tax Act.

Consequently, the application for condonation of delay is rejected. Since the delay of 191 days in filing the appeal is not condoned, the appeal remains barred by limitation and is liable to be dismissed in limine.

In the result, the application for condonation of delay is dismissed and, consequently, the appeal is dismissed as barred by limitation.