BISWAJIT ROY,JALPAIGURI vs. ITO, WARD 1(1), , JALPAIGURI

“The following notices were issued from time to time, with a view to evoke response from the assessee. But the assessee chose to be non responsive despite issue of notices as tabulated below:- Particulars of Notices Issued on Served on Mode of issued Service 143(2) 22/09/2019 22/09/2019 e-mail 142(1) 06/11/2020 05/11/2020 e-mail 272A(1)(d) 17/11/2020 17/11/2020 e-mail 142(1) 04/12/2020 04/12/2020 e-mail 272A(1)(d) penalty levied 30/12/2020 30/12/2020 e-mail No Response Letter 02/01/2021 02/01/2021 e-mail

2. Thereafter, the assessee approached the CIT(A) requesting for relief from the enhancement to income, after condonation of delay of 436 days.

2.1 The Ld. CIT(A) has analysed the assessee’s request for condonation of delay factually and has come to the conclusion that the delay did not 2.8 The law of limitation is found upon the maxims "Interest Reipublicae Ut Sit Finis Litium that litigation must come to an end in the interest of society as a whole, and "vigilantibus non dormientibus Jura subveniunt" that the law assists those who are vigilant with their rights, and not those who sleep thereupon. The law of limitation in India identifies the need for limiting litigation by striking a balance between the Interests of the state and the litigant. 2.9 For any appeal to be condoned, it is the duty of the appellant to prove that the reason comes under the purview of 'sufficient cause alongwith the documentary evidence in support of his contention. In cases, where there exists inordinate delay and the same is attributable to the party's inaction and negligence, the Courts have to take a strict approach so as to protect the substantial rights of the parties. In the absence of sufficient cause, delay cannot be condoned merely on equitable ground as held by the Hon'ble Supreme Court in the case of P.K. Ramachandran vs. State of Kerala. (1997) 7 SCC 556: (1998) AIR 1998 SC 2276. 2.10 In the present case, the appeal has been filed after delay of 436 days. Even though a liberal approach has to be adopted, but that does not mean that any plea without any plausible or acceptable basis and not even bearing semblance or rationality has to be accepted, and delay has to be condoned. That shall be against the very spirit of law. Prescription of time limit for filing appeals u/s 249(3) of the Act would become meaningless in such event. At the same time, the appellant must show that he was diligent all along in taking appropriate steps and the delay was caused notwithstanding his due diligence, and if he appears to be guilty of laches or negligence and does not take appropriate steps for pursuing his remedy, then he must be prepared to have his remedy barred without expecting condonation. 2.11 As stated above, the grounds stated by the appellant for delay are that he had delivered all the necessary documents to his lawyer but the said lawyer was suffering from multi-morbidities of post COVID 19 as well as severe eye problem and the assistant of the said Lawyer was attacked by COVID 19 and one of them is being operated for gall stone, resulted in chamber being closed for several days and also new portal which is being launched by the Income Tax Department was still non-functioning which refuses to upload appeal petition within due time and for which the petitioner's Lawyer was unable to file the appeal petition within stipulated time le. 30/09/2021. The appellant submitted few prescriptions issued by Doctors. On going through these, it was found that the prescriptions are dated 04.11.2020, 24.03.2021, 02.03.2021, 10.05.2021, 08.06.2020 and one for covid positive on 10.05.2021. Thus, all these prescriptions were issued before 31.08.2021, which is the date of service of impugned order. Therefore, the above ground of illness of lawyer of the appellant or his assistant cannot be termed as sufficient cause. Further, there is no evidence that new portal launched by the Income Tax Department was still non-functioning between 31.08.2021 to 10.12.2022. Thus, the said reason is also devoid of any merit. 2.12 Further it is found that alongwith Form 35, the appellant had attached a letter dated 10.12.2022, stating as under: "Subject: Complain regarding non-acceptance of appeal: This is to inform you that being aggrieved with the assessment made by the Ld. A.O. for the assessment year 2018-2019 1 have filed appeal petition before the CIT (Appeals) on 15/09/2021 at about 5.46 p.m. It is very surprising that after filing the appeal petition through online but no acknowledgement, Form 35 were issued from your end. In several times I talked to Income Tax e-Filing Department regarding the said issue and they told me that the appeal petition will be auto generated in time I will get information in time. But after the expiry of one year no information was issued till date One note which is received from your department which enclosed herewith for your kind perusal in which it is displayed that "in progress Form 1 and show all appeal Form 35 and draft saved" which is meaningless to me. It is noted that whenever I am trying to file appeal petition again it fails to accept by the portal of your department. I am a small businessman and incapable to clear off the assessed dues without any proper justice from your department and your department is pressurizing Biswajit Roy me to make payment the assessed dues. I am now helpless. What should I do please instruct me for appeal hearing." 2.13 In the above letter, the appellant claims that he had filed appeal petition before the CIT (Appeals) on 15/09/2021 at about 5.46 p.m., but after filing the appeal petition through online but no acknowledgement for Form 35 was issued. The appellant had not filed any evidence for the above claim, so it cannot be accepted. Further, the above claim of filing appeal on 15.09.2021 contradicts to the claim made in the petition for condonation filed on 03.03.2025, which is reproduced above. As observed by the Hon'ble Supreme Court in the case of Ramlal, Motilal and Chotelal Vs. Rewa Coalfields Ltd. AIR (1962) 361 (SC) that seeker of justice must come with clean hands. In this case, the appellant appears to be not revealing the true and correct facts which lead to inordinate delay in filing this appeal. 2.14 The Hon'ble Supreme Court in the case of Rajneesh Kumar & Anr. Vs. Ved Prakash, S.L.P. (CIVIL) NOS. 935-936 OF 2021 dated 21.11.2024 held that the litigant owes a duty to be vigilant of his own rights and even if it is assumed that the concerned lawyer was careless or negligent, this, by itself, cannot be a ground to condone long and inordinate delay. The relevant para is 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" Reliance was also placed by the Supreme Court upon its judgments in Salil Dutta v. T.M. & M.C. Private Ltd. reported in (1993) 2 SCC 185 & Bharat Barrel & Drum MFG Go. v. The Employees State Insurance Corporation, (1971) 2 SCC 860. 2.15 The appellant owes a duty to be vigilant of his own rights and is expected to be equally vigilant about the proceedings pending before the Income Tax Authorities. 2.16 Deliberate inaction or negligence on the part of the appellant is not a sufficient ground for condonation of delay. Thus, the reasons stated by the appellant for not filing the appeal within the prescribed time is found to be bereft of any merits in the absence of documentary evidences. The law assists those who are vigilant with their rights, and not those who sleep thereupon. As held by the various Courts, the condonation of delay is an exception and should not be used as anticipated benefit for a person. Thus, it can be concluded that there was no sufficient reason for filing the appeal belatedly. 2.17 It is also observed from the impugned order that the assessee remained careless and negligent in pursuing his case before the AO also and the assessee never bothered to comply to various notices issued during assessment proceedings by the AO. The assessee did not give any explanation or reply to the opportunities granted to him by the AO to answer his queries. 2.18 In view of the above discussion, it appears that the assessee was negligent towards filing of appeal in time as provided by the Statute and thereby from his conduct, it seems that he takes condonation of delay for granted. In the instant case, the appellant has failed to bring out any genuine and convincing reasons for condonation of such huge delay. Under such facts and circumstances, it is clear that the delay occurred on account of callous and lackadaisical approach on the part of the assessee in not filing the appeal within the stipulated time period. 2.19 In Binod Bihari Singh v. Union of India [(1993) 1 SCC 572), it was held that it is not at all a fit case where in the anxiety to render justice to a party so that a just cause is not defeated, a pragmatic view should be taken by the court in considering sufficing cause for condonation of the delay under Section 5. It was held that when the party has come with a false plea to get rid of the bar of limitation, the court should not encourage such person by condoning the delay and result in the bar of limitation pleaded by the opposite party. The Court, therefore, refused to condone the delay in favour of the party who came forward with false plea.

Biswajit Roy 2.20 Therefore, the facts on record in this case clearly discloses inaction on the part of the appellant in filing appeal within the prescribed time. Having regard to the period of delay and on account of inaction on the part of the appellant as discussed above, I am of the considered view that the cause given by the appellant lacks substance, is devoid of merit, insufficient and unsatisfactory for condoning the Inordinate delay and therefore, this is not a fit case in which inordinate delay in filing appeal deserves to be condoned.

3. Before us, the Ld. AR stated that the assessee has a strong case on merits and it was only due to the negligence of the tax counsel that there was non-compliance before the Ld. AO and also carelessness in filing of the appeal before the Ld. CIT(A). The Ld. AR drew our attention to the assessee’s affidavit in which the blame has been squarely put on his tax counsel as under:

“1. That I have been carrying on a business of whole sale and retail trade of lottery tickets.

4. That 30 (thirty) days thereafter was 29.9.2021, by which I was required to file appeal before the Ld. CIT(A), NFAC electronically.

6. That I had handed over the Assessment Order and other relevant papers to Advocate Subrata Paul of Jalpaiguri to file the appeal before the Ld. CIT(A), NFAC immediately on knowing the fact of passing the assessment order by the Ld. Assessing Officer in my case as above.

3.2 The Ld. DR, on the other hand, relied on the order of authorities below and stated that this was a case where the delay was not condoned after a great deal of deliberation.

4.1 The Hon'ble Apex Court in catena of decisions has held that the law of limitation being substantive, the power of discretion to condone the delay is to be exercised judiciously and cannot be exercised in a routine manner. The parties are expected to approach the Court in adherence to this general principle. Thus, filing an appeal is the rule and condoning the delay is the exception, wherein the Courts have to exercise their discretionary power judiciously and by recording reasons. Excessive delay, as in this case, cannot be simply missed away by casually mentioning that the Principal Officer was hard pressed for time. Such casually explained delay is to be construed as an uncondonable delay. Once there is a delay, the person who is filing the condonation petition is expected to furnish the reason which must be acceptable to the Appellate Authority.

4.2 The Hon'ble Supreme Court in the case of Collector, Land Acquisition v. Mst. Katiji 1987 taxmann.com 1072/28 ELT 185, has observed that it is for the assessee to explain each and every day of delay in filing of appeal. Before us in the present case, no such petition/prayer/application for condonation of delay is filed much less a sufficient and satisfactory explanation to prove that there is a reasonable cause for the said delay.

Biswajit Roy 4.3 In this case, it is evident that the appellant has conveniently decided not to justify the delay in filing before the Ld. CIT(A) by simply blaming the erstwhile tax counsel. At this juncture, it is necessary to delve into the genesis of limitation and how a judicial forum needs to deal with matters pertaining to condonation of delay.

4.4 Almost all the tax laws, whether they relate to direct taxes or Indirect taxes, contain provisions for condonation of delay in filing appeals, if the appellant (whether it is the taxpayer or the revenue) proves to the satisfaction of the appellate authority that he had sufficient cause for not filing the appeal within time. The genesis for such provisions can be traced to section 5 of the Limitation Act, 1963, which reads as follows:

"Extension of prescribed period in certain cases. Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he has sufficient cause for not preferring the appeal or making the application within such period Explanation: The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section." 4.5 The two essential ingredients for condoning delays are: (1) the existence of sufficient cause, and (i) the satisfaction of the competent authority that such sufficient cause was proved as existing. Thus, the first issue about the existence of sufficient cause covers the factual matrix in respect of which the onus to prove is squarely on the litigant, while the second issue about 'satisfaction' covers the discretionary area in which the competent authority, the Ld. CIT(A) in this case, is expected to act. It is by now well settled that the expression 'sufficient cause' has to be understood to mean a cause beyond the control of the appellant or one which the appellant, even with the exercise of due care and attention, could not avoid. The expression is required to be interpreted liberally so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant. Further, it is a general principle of law that whenever a Court is vested with a discretionary power, such a discretion must be exercised not in an arbitrary, vague or fanciful manner but on Biswajit Roy judicial principles. The fundamental principle, which has been universally recognised as the true rule of guidance for the exercise of discretion to condone delays is to see whether the party claiming indulgence has been reasonably diligent in prosecuting his appeal. As has been mentioned earlier, the assessee’s conduct has been less than desirable in terms of persuading his appeal before the Ld. AO. The extract (supra) from the Ld. AO’s order would amply illustrate this point.

4.6 In the case of State of Gujarat v. Sayed Mohd. Baquir El Edruss AIR 1981 SC 1921, the Supreme Court laid down the following principles that should govern the exercise of powers of condonation under section 5: a. The party seeking relief has to satisfy the Court that he had sufficient cause for not preferring the appeal, etc within the prescribed time. b. The explanation has to cover the entire period of delay. c. A litigant should not be permitted to take away a right which has accrued to his adversary by lapse of time. d. The proof of sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court under section 5. After sufficient cause is shown, the Court is to inquire whether in ns discretion it should condone the delay. e. The discretion conferred on the Court is a judicial discretion and must be exercised to advance substantial justice f. No liberal view should be taken merely because the defaulting party is a Government. g. Even if there was a strong case for acceptance of the appeal on merits that could not be a ground for condonation of delay When there is remiss on the part of the advocate, the question that comes up for consideration is whether the mistake was bona fide or was merely a device to cover the ulterior purpose such as latches on the part of the litigant or an attempt to save limitation in an underhand way.

Biswajit Roy 4.7 It was also held in an earlier decision in the case of Ramlal Motilal v. Rewa Coalfields AIR 1962 SC 361, that every day's delay must be explained Another important requirement is that the 'cause' for the delay must have arisen before the expiry of the limitation period, and, as held by the Supreme Court in the case of Ajit Singh Thakur Singh State of Gujarat AIR 1981 SC 713, "no event or circumstance arising after the expiry of limitation period can constitute sufficient cause".

5. Considering the discussion above, the assessee, in our opinion has not been able to demonstrate and prove the bonafides of his claim for “reasonable cause’ behind the delay in filing of first appeal. Accordingly, we confirm the action of Ld. CIT(A) and dismiss the assessee’s appeal.

Order pronounced on 02.07.2025