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Income Tax Appellate Tribunal, DELHI BENCHES “SMC”: DELHI
Before: SHRI BHAVNESH SAINI
This appeal by Assessee has been directed against the Order of the Ld. CIT(A)-16, New Delhi, Dated 28.11.2016, for the A.Y. 2012-2013.
The Office has reported that appeal is time barred by 477 days. According to Column No.9 of Form No.36, assessee has mentioned 15.12.2016 is the date of communication of the Order appealed against. However, the appeal is filed in the O/o. Tribunal on 05.06.2018. The 2 ITA.No.4295/Del./2018 Shri Rakesh Kumar Jaiswal, Delhi.
assessee has filed application for condonation of delay supported by affidavit of assessee. Learned Counsel for the Assessee submitted that Shri Trilok Bansal, C.A. was authorised to appear before the Ld. CIT(A), but, neither informed the assessee about development of the case nor attended the appellate proceedings, therefore, appeal was decided ex-parte. He has further submitted that subsequently Shri Trilok Bansal, C.A. was immediately informed about the impugned order who assured to file appeal before the Tribunal within the stipulated time and he also regretted for his past conduct and therefore, again he was authorised to file the appeal before the ITAT, but, till date he did not inform any thing and also did not file the appeal before the Tribunal. He has submitted that when assessee received penalty notice, then he came to know that appeal has not been filed by the Counsel for Assessee. The assessee immediately filed the appeal before the Tribunal.
The assessee, therefore, prayed that due to negligence of Counsel for Assessee, assessee cannot suffer. The assessee,
3 ITA.No.4295/Del./2018 Shri Rakesh Kumar Jaiswal, Delhi. therefore, prayed that delay in filing the appeal may be condoned.
On the other hand, Ld. D.R. submitted that assessee did not appear before the Ld. CIT(A) and appeal has been decided ex-parte. The Ld. D.R. submitted that assessee received the impugned order on 15.12.2016.
Despite that no steps have been taken by the assessee to file the appeal before the Tribunal. The Learned D.R. submitted that when Counsel for Assessee did not appear before the Ld. CIT(A) and appeal has been decided ex-parte, there were no reason to believe the same Counsel subsequently for filing the appeal. The Ld. D.R. submitted that the delay is very huge in filing the appeal which cannot be condoned.
The Ld. D.R. relied upon the following decisions :
Mewat Grit Udyog vs. PCIT 2017-TIOL-607-ITAT-DEL.
2. M/s. Kolte Patil Developers Ltd., vs. DCIT 2016-TIOL- 3158-HC-MUM-IT. 3. M/s. Kolte Patil Developers Ltd., vs. DCIT 2017-TIOL- 185-SC-IT. 4. Shri Subodh Parkash vs. JCIT [2017] 397 ITR 384 (P& H). 5. Shri Nandkishor Education Society vs. CIT 2017-TIOL- 451-ITAT-PUNE.
4 ITA.No.4295/Del./2018 Shri Rakesh Kumar Jaiswal, Delhi.
6. Vama Apparels (India) (P.) Ltd., vs. ACIT [2019] 261 Taxman 496 (Bom.).
I have considered the rival submissions. It is not in dispute that assessee received the impugned order dated 28.11.2016 on 15.12.2016. The Ld. CIT(A) passed the ex- parte Order in the absence of Counsel for Assessee and allowed the appeal of assessee partly. These facts, therefore, clearly show that Shri Trilok Bansal, C.A. did not appear before the Ld. CIT(A) for prosecuting the appeal. Therefore, there was no reason for assessee to believe the same Counsel for filing of the appeal before the Tribunal. The entire facts have been manipulated and fabricated by assessee to put blame on Shri Trilok Bansal, C.A. for not filing the appeal before the Tribunal. It may be noted here that assessee has deposited the Tribunal fees for filing of the appeal only on 02.06.2018 as per the challan filed on record, which would show that assessee never acted bonafidely to take steps to file appeal within the period of limitation before the Tribunal.
5 ITA.No.4295/Del./2018 Shri Rakesh Kumar Jaiswal, Delhi.
It would be appropriate to refer to some of the judicial pronouncements on the issue of delay in filing the appeals. In the case of Hind Development Corpn. v. ITO [1979] 118 ITR 873, the Calcutta High Court held that a Tribunal can condone the delay if there was sufficient cause for the delay in the submission of the appeal. In the case of Vedabai alias Vijayanatabai Baburao Patil v. Shantaram Baburao Patil [2002] 253 ITR 798' (SC), where it was held that while exercising discretion under section 5 of the Limitation Act, 1963, to condone delay for sufficient cause in not filing the appeal within the period prescribed, Courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. The Court observed that whereas in the former consideration of prejudice to the other side will be a relevant factor and calls for a more cautious approach. In the latter case no such consideration may arise and such a case deserves a liberal approach. Now in the present case delay is not of a few days but of 477 days. Besides, there is absolutely no valid explanation/
6 ITA.No.4295/Del./2018 Shri Rakesh Kumar Jaiswal, Delhi. reason for the delay. In the case of CIT v. Ram Mohan Kabra [2002] 257 ITR 773, the Hon'ble Punjab & Haryana High Court has held observed that where the Legislature spells out a period of limitation and provides for power to condone the delay as well, such delay can only be condoned only for sufficient and good reasons supported by cogent and proper evidence. It is a settled principle of law that provisions relating to the specified period of limitation must be applied with their rigour and effective consequences. In this case delay for filing the appeal late for only a few days was not condoned. In the case of Asstt. CIT v. Taggas Industries Development Ltd. [2002] 80 ITD 21(Cal.), Tribunal, Calcutta Bench, Calcutta, did not condone the delay for filing the appeal late by 13 days because the delay was not due to sufficient cause. Thus, relying on the above judgments, I hold that assessee failed to explain that delay in filing the appeal was due to sufficient cause. In view of the above, I do not find any reason to condone the delay in filing the appeal before the Tribunal. The appeal of assessee is accordingly dismissed being time barred.
7 ITA.No.4295/Del./2018 Shri Rakesh Kumar Jaiswal, Delhi.
In the result, appeal of Assessee dismissed.
Order pronounced in the open Court.