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Income Tax Appellate Tribunal, SMCBENCH: BANGALORE
Before: SHRI WASEEM AHMED & SHRI KESHAV DUBEY
O R D E R PER KESHAV DUBEY, JUDICIAL MEMBER:
This appeal at the instance of the assessee is directed against the order of the Ld.CIT(A)/NFAC dated 29.07.2021 vide DIN & Order No. ITBA/NFAC/S/250/2021-22/1034500007(1) passed u/s. 250 of the Income Tax Act, 1961 (in short “the Act”) for the assessment year 2017-18.
The assessee has raised the following grounds of appeal:
1. The Learned CIT(A) erred in dismissing the Rs. 12,08,6 appeal in limine, refusing to condone the delay in filing the appeal in the appellant's case for the assessment year 2017-18.
2. The Learned CIT(A) ought to have appreciated that the appellant is an employee of Government of Karnataka and the appellant was transferred from Bellary to Davanagere and in between on account of Page 2 of 15 covid. 19, the appellant could not file the return the appeal within the stipulated time.
3. The Learned CIT(A) ought to have considered the appellant's case sympathetically as the appellant on account of transferable job, and has depended on the consultant at Davanagere, who on account of his family disputes did not look in to the e.portal, which caused the delay and the appellant could not keep in touch on account of Covid and official work, which caused delay in filing the appeal.
4. Appellant Prays leave of this Hon'ble Tribunal to add/modify/delete any ground or grounds at the time of hearing.”
At the outset, the ld. A.R. of the assessee submitted that there is a delay of 1265 days in filing the appeal before this Tribunal. The Ld. A.R. of the assessee also drew our attention to an application for condonation of delay along with affidavits in original submitted by the assessee as well as the auditor of the assessee stating reasons for filing the appeal belatedly before this Tribunal, which are all reproduced below for ease of reference and convenience:
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Page 9 of 15 3.1 On going through the above application as well as the Affidavit of the assessee, as well as the affidavit of the son of the Chartered Accountant of the assessee, we find that the main contention of the assessee is that being a Commercial Tax Officer posted at Bellary the assessee could not open the Income Tax e- portal on account of his transfer and also on account of pressure of work and when he came to know that order is passed on 12.12.2019, he approached Sri V.S. Arunachala Setty, an Advocate at Devangere. With the help of a practising Chartered Accountant at Bangalore, an appeal was filed with the delay of 172 days. However, the appeal was dismissed on the ground of limitation. Thereafter, the assessee intimated the dismissal of the appeal to his Advocate Mr. V.S. Arunachala Setty and requested to take the appeal further by filing the appeal before the Hon’ble Tribunal. Thereafter, the assessee was under bonafide belief that the appeal has been filed online and on account of official work pressure, he did not contact his Advocate Mr. V.S. Arunachala Setty. Further, when there were phone calls for arrears of taxes, the assessee contacted his son Mr. Sri Harsha who explained that Mr. V.S. Arunachala Setty passed away on 3.5.2023 and also on verification found that no appeal before this Tribunal was filed and accordingly the assessee took steps to file appeal. The AR of the assessee prayed that the delay in filing the appeal is unintentional and for the reasons beyond the control of the assessee and on account of Bonafide belief that his counsel might have filed the appeal.
The ld. DR, on the other hand, vehemently objected to condoning such inordinate delay in filing the appeal & submitted that the assessee is very callous in his approach in filing the appeal, not only before the ld. CIT(A) but also before this Tribunal.
We have heard the rival submissions & perused the affidavits filed by the assessee as well as the son of the Advocate of the assessee to justify the delay in filing the appeal. We are of the considered opinion that u/s 253(5) of the Act, the Tribunal may admit the delay filed beyond the period of limitation where it is established that there exists a “sufficient cause” on the part of the assessee for not presenting the appeal within the prescribed time. The explanation, therefore, becomes relevant to determine whether the same reflects sufficient and reasonable cause on the part of the assessee in not filing the appeal within the prescribed time.
5.1 We have observed that Mr. V.A. Sriharsha, son of Late Shri V.S. Arunachala Setty (Advocate), in his affidavit stated that G. Narappa informed him that appeal papers requesting his father to file an appeal had been given; however, the Son of the Advocate found that there were no papers in regard to filing the appeal before the Tribunal. On coming to know that the appeal was not filed before the ITAT, he assisted in downloading the appellate order and other papers and the same were handed over to another advocate to prepare the appeal and requested to file the appeal on behalf of M.G. Narappa.
5.2 On going through the above explanations offered in the condonation application as well as affidavits, we take note of the fact that the sole ground advanced for the delay is that the assessee handed over the brief to the Lawyer/CA concerned, but the Lawyer did not file the appeal on time.
5.3 In view of the contention of the assessee, it is imperative to examine if the assessee was diligent after handing over the brief to the Lawyer to escape his latches? It is an undisputed fact that the Page 11 of 15 ld. CIT(A)/NFAC dismissed the appeal of the assessee on 29/07/2021 by holding that the delay was due to the negligence and inaction on the part of the assessee. By way of an affidavit, the assessee has stated that he intimated the dismissal of the appeal information to Mr V.A. Arunachala Setty and requested that he take the appeal further by filing the appeal before the Tribunal. We are of the considered opinion that the assessee slept over the matter thereafter. The order was passed by the ld. CIT(A)/NFAC on 29/07/2021. The Advocate expired only on 03/05/2023 i.e. almost two years after the passing order by the ld. CIT(A)/NFAC. Now, the assessee, by way of an affidavit, is stating that on account of official work pressure and an honest and bonafide belief that an appeal has been filed online, he did not contact Mr. V.S. Arunachala Setty. In our considered opinion, the assessee himself, being a Commercial Tax officer, who is well-versed with the provisions of the law, is now trying to shift the entire blame to his counsel who expired on 03/05/2023.
5.4 It is apt to mention that the law of limitation is the impediment of the Maxim Vigilantibus Non Dormenteibus Jura Subvenitent that ensures the case is filed within the stipulated time frame to avoid unnecessary delays. On the other hand, the condonation of delay is the safeguard to the law of limitation and bars certain cases in which the delay in filing the appeal is justifiable i.e. can be backed by having “sufficient cause”
5.5 In the case in hand, the delay occasioned in bringing the appeal is assessed at 1265 days i.e. more than 3 years. The sole ground/contention advanced for delay is that the assessee handed over the brief to the lawyer but the lawyer concerned did not file the appeal in time. The assessee was under the Bonafide belief that an appeal had been filed online.
Page 12 of 15 5.6 The Apex court in the case of Rajneesh Kumar & Anr. Vs. Ved Prakash in SLP (Civil Nos.935-936 of 2021 dated 21.11.2024) held as follows:
“10. It appears that the entire blame has been thrown on the head of the advocate who was appearing for the petitioners in the trial court. We have noticed over a period of time a tendency on the part of the litigants to blame their lawyers of negligence and carelessness in attending the proceedings before the court. Even if we assume for a moment that the concerned lawyer was careless or negligent, this, by itself, cannot be a ground to condone long and inordinate delay as the litigant owes a duty to be vigilant of his own rights and is expected to be equally vigilant about the judicial proceedings pending in the court initiated at his instance. The litigant, therefore, should not be permitted to throw the entire blame on the head of the advocate and thereby disown him at any time and seek relief.
In the aforesaid context, we may refer to a decision of this Court in the case of Salil Dutta v. T.M. & M.C. Private Ltd. reported in (1993) 2 SCC 185, wherein this Court observed as under:-
“8. The advocate is the agent of the party. His acts and statements, made within the limits of authority given to him, are the acts and statements of the principal i.e. the party who engage him. It is true that in certain situations, the court may, in the interest of justice, set aside a dismissal order or an ex partedecree notwithstanding the negligence and/or misdemeanour of the advocate where it finds that the client was an innocent litigant but there is no such absolute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognized. Such an absolute rule would make the working of the system extremely difficult. The observations made in Rafiq [AIR 1981 SC 1400] must not be understood as an absolute proposition. As we have mentioned hereinabove, this was an on-going suit posted for final hearing after a lapse of seven years of its institution. It was not a second appeal filed by a villager residing away from the city, where the court is located. The defendant is also not a rustic ignorant villager but a private limited company with its head office at Calcutta itself and managed by educated businessmen who know where their interest lies. It is evident that when their applications were not deposed of before taking up the suit for final hearing they felt piqued and refused to appear before the court. May be, it was part of their delaying tactics as alleged by the plaintiff. May be not. But one thing is clear they chose to non-cooperate with the court. Having adopted such a stand towards the court, the defendant has no right to ask its indulgence. Putting the entire blame upon the Page 13 of 15 advocate and trying to make it out as if they were totally unaware of the nature or significance of the proceedings is a theory which cannot be accepted and ought not to have been accepted.” (Emphasis supplied)
As regards the law of limitation, we may refer to the decision of this Court in Bharat Barrel & Drum MFG Go. v. The Employees State Insurance Corporation, (1971) 2 SCC 860, wherein this Court held as under:- “The necessity for enacting periods of limitation is to ensure that actions are commenced within a particular period, firstly to assure the availability of evidence documentary as well as oral to enable the defendant to contest the claim against him; secondly to give effect to the principle that law does not assist a person who is inactive and sleeps over his rights by allowing them when challenged or disputed to remain dormant without asserting them in a Court of law. The principle which forms the basis of this rule is expressed in the maximum vigilantibus, non dermientibus, jura subveniunt(the laws give help to those who are watchful and not to those who sleep). Therefore, the object of the statutes of limitations is to compel a person to exercise his right of action within a reasonable time as also to discourage and suppress stale, fake or fraudulent claims.” (Emphasis supplied)
13. In view of the aforesaid, we find no error not to speak of any error of law in the impugned judgment of the High Court warranting interference in exercise of our jurisdiction under Article 136 of the Constitution of India.”
5.7. Recently, the Hon’ble Delhi High Court in the case of Rahul Mavi in WP(C) No.17704/2024 dated 18.12.2024 has deprecated the practice of shifting to the shoulder of the counsel, the negligence in approaching the court. The relevant observation made by the Hon’ble High Court is as under:
“4. We also disapprove the unwholesome practice of seeking to explain away inordinate delay and laches on approaching the Court on the mere ground that the Counsel who had been dealing with, or entrusted, the matter, was tardy, negligent, or indolent. At times, this assertion is sought to be supported by an assertion that the litigant has approached the Bar Council concerned against the counsel.
Page 14 of 15 5. We emphatically disapprove of this practice of shifting, to the shoulders of the Counsel, the negligence in approaching the Court. It is easy, in such circumstances, to file a complaint before the Bar Council and seek to explain away the delay. We deprecate this. A litigant does not abandon all responsibility to keep track of a matter, once it is entrusted to Counsel.
6. That said, if, in fact, the Counsel has been negligent, the litigant would have to place, on record, material to indicate that she, or he, has been in touch with the Counsel during the entire period of delay, and that the Counsel has been misleading her, or him. This material must be acceptable, and convincing. The Court has to be satisfied that, in fact, the Counsel has been misleading the client, and that this explains the entire period of delay in approaching the Court. Of course, if the Court is so satisfied, and an innocent litigant has been led up the garden path by an unscrupulous Counsel, the court would not allow injustice to be done, and would, in an appropriate case, condone the delay.”
5.8 Recently, the Hon’ble Supreme Court in H. Guruswamy & Ors. Vs. A. Krishnaiah (Civil Appeal No.317 of 2025 dated 8.1.2025) has observed as under:
“We are at our wits end to understand why the High Court overlooked all the aforesaid aspects. What was the good reason for the High Court to ignore all this? Time and again, the Supreme Court has reminded the District judiciary as well the High courts that the concepts such as “liberal approach”, “Justice oriented approach”, “substantial justice” should not be employed to frustrate or jettison the substantial law of limitation.
We are constrained to observe that the High Court has exhibited complete absence of judicial conscience and restraints, which a judge is expected to maintain while adjudicating a list between the parties.
The rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics but seek their remedy promptly.
The length of the delay is definitely a relevant matter which the court must take into consideration while considering whether the delay should be condoned or not. From the tenor of the approach of the respondents herein, it appears that they want to fix their own period of limitation for the purpose of instituting the proceedings for which law has prescribed a period of limitation. Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long, it cannot be presumed to be nondeliberate delay and in such circumstances of the case, he cannot be heard to plead that the substantial justice deserves to be preferred as against the technical considerations. While Page 15 of 15 considering the plea for condonation of delay, the court must not start with the merits of the main matter. The court owes a duty to first ascertain the bona fides of the explanation offered by the party seeking condonation. It is only if the sufficient cause assigned by the litigant and the opposition of the other side is equally balanced that the court may bring into aid the merits of the matter for the purpose of condoning the delay.
We are of the view that the question of limitation is not merely a technical consideration. The rules of limitation are based on the principles of sound public policy and principles of equity. No court should keep the ‘Sword of Damocles’ hanging over the head of a litigant for an indefinite period of time.” 5.9 In view of the principle enunciated by Hon’ble Supreme Court, we are of the considered opinion that it is not a fit case to condone the inordinate delay of 1265 days as the assessee failed to offer any “sufficient cause” explaining the delay.
5.10 Accordingly, we dismiss the appeal of the assessee by not condoning the delay in filing the appeal before this Tribunal.
In the result, appeal filed by the assessee is dismissed.