ACIT, NEW DELHI vs. SH. D.K. JAIN, NEW DELHI

PER BHAVNESH SAINI, J.M :

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that the impugned order was received in the office of Ld. CIT-XI on 21.07.2010. The authorization to file appeal before the Tribunal was issued by Ld. CIT-XI, New Delhi, vide order dated 08.09.2010 and the limitation for filing appeal before the Tribunal was to expire on 20.09.2010. However, the appeal before the Tribunal could be filed only on 29.03.2012. It is further submitted that the then AO was also as Nodal Officer for judicial purposes and inadvertently both the copies of the authorization were placed in the file of the Nodal Officer. Thus, the same had inadvertently escape the knowledge of Jurisdictional Officer due to placing of the authorization in the judicial folder of the Nodal Officer which was further aggravated by lack of adequate support of the staff. The mistake got detected on 29.03.2012 and the appeal is filed before the Tribunal. It is stated that delay is highly regretted and may kindly be condoned. 4. Prior to filing of this affidavit the revenue also filed affidavit of Sh. Gulzar Wani, ACIT, Circle -15(1), New Delhi, dated 01.03.2016 mentioning the same fact therein which was not found proper, therefore, affidavit dated 09.11.2016 was filed. 5. Ld. DR relied upon the averment content in both these affidavits and submitted that the delay in filing the appeal may be condoned. He further submitted that it is well settled law that while considering the delay the pragmatic view may be adopted for cause of substantial justice. Ld. DR relied upon the decision of the Hon’ble Supreme Court in the case of Collector, Land Acquisition Vs. Mst. Katigi & ors 167 ITR 417. 6. On the other hand, Ld. Counsel for the assessee submitted that the affidavits of two of the ACIT are not affidavit in the eyes of law because they are not verified by the officers and that no oath

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have been administered to them by Notary Public. He has submitted that no material evidence have been produced in support of explanation. The department did not take steps on time and it is a case of gross negligence. Therefore, delay may not be condoned. 7. We have considered the rival submissions. The revenue filed two alleged affidavits of ACIT, Circle -15(1), New Delhi as noted above. These are not actually affidavits of both the officers of the department because there is no verification in both these alleged affidavits and even no oaths have been administered to the officers before attesting the same. Authorization order passed on 08.09.2010, directing ACIT-32(1), New Delhi to file appeal before Tribunal but alleged affidavits are filed by ACIT, Circle15(1), New Delhi. May by these alleged affidavits do not satisfy the requirements of proper affidavits as per law, however, for the purpose of considering the explanation of the revenue whether the same disclosed any sufficient/reasonable cause for delay in filing the departmental appeal, the averment contend therein are taken into consideration. It is admitted fact that after passing of the impugned order by Ld. CIT(A), the impugned order was received in the office of Ld. CIT-XI on 21.07.2010. Ld. CIT (A)-XI, New Delhi, passed the authorization order dated 08.09.2010 authorizing the AO to file the appeal against the impugned order before the Tribunal. Copy of the authorization order is available on record whereby it is directed that limitation in filing the appeal before Tribunal would expire on 20.09.2010. It is also admitted fact that despite authorization order issued by Ld. CIT-XI, within time, the AO did not take any step in filing the appeal before the Tribunal. It is explained that the AO was also working as Nodal Officer and the

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authorization is placed in the folder of Nodal Officer. It is a clear case of the negligence of the AO. When the AO received the authorization order, even if he was working as Nodal Officer also, it was his duty to file appeal before the Tribunal within the period of limitation. The Nodal Officer has been appointed for judicial purpose only, therefore, duty is also cast upon him to take step to file appeal within the period limitation. Merely placing the authorization in another folder is no ground seeking condonation of delay in the matter. The facts therefore, do not disclose any sufficient cause for delay in submission of the appeal before Tribunal. No material is produced in support of these averments. The delay is not few days but of 557 days and revenue failed to explain any reasonable cause for not filing the appeal within the period of limitation. The explanation of the revenue is not bona fide and appears to be after thought. The government departments are under special obligation to ensure that they perform their duties with diligence and commitment. Codonation of delay is an exception and should not be used as an anticipated benefit for government departments. The revenue department had failed to give acceptable and cogent reason sufficient to codonation such a huge delay. 8. It would be appropriate to refer to some of the judicial pronouncement on the issue of delay in filing of appeals. A) Hon’ble Supreme Court in the case of Office of the Chief Post Master General & ors Vs. Living Media India Ltd., & anr, 348 ITR 7; considering its earlier decisions in the case of Collector (Land and Acquisition) Vs. Mst. Katigi (supra) relied upon by Ld. DR held as under:

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The respondent, a company publishing magazines registered as newspapers with the Department of Posts and entitled to transmit its publications by post under concessional rate of postage, was denied permission to post issues of tax of its magazines containing advertisements at concessional rates. The company filed writ petitions which a single judge of the High Court allowed and, on appeal by the Postal Department, this was affirmed by a Division Bench of the High Court by order dated September 11, 2009. The Postal Department preferred appeals to the Supreme Court by way of special leave with a delay of 427 days with applications for condonation of delay in filing the petitions for special leave : Held, dismissing the applications, the Department had itself mentioned in its affidavit and was aware of the date of the judgment of the Division Bench of the High Court as September 11, 2009. Even, according to the deponent, its counsel had applied for the certified copy of the judgment only on January 8, 2010, and the copy was received by the Department on the very same day. There was no explanation for not applying for certified copy of the judgment on September 11, 2009, or at least within a reasonable time. The fact remains that the certified copy was applied for only on January 8, 2010, i.e., after a period of nearly four months. Neither the Department nor the person in-charge had filed an explanation for not applying for the certified copy within the prescribed period. The other dates mentioned in the affidavit clearly showed that there was delay at every stage and there was no explanation as to why such delay had occasioned. The Department or the person concerned had not evinced diligence in prosecuting the matter to the court by taking appropriate steps. The persons concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in the Supreme Court. In the absence of plausible and acceptable explanation, the delay could not be condoned mechanically merely because the Government or a wing of the Government was a party before the court. Though in a matter of condo- nation of delay when there was no gross negligence or deliberate inaction or lack of bona fide, a liberal concession had to be adopted to advance substantial justice, in the facts and circumstances, the claim on account of impersonal

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machinery and inherited bureaucratic methodology of making several notes could not be accepted in view of the modern technologies being used and available. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, the Department had failed to give acceptable and cogent reasons sufficient to condone such a huge delay. By the court : Unless government bodies, their agencies and instrumentalities have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months or years due to considerable degree of procedural red-tape in the process. Government Departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for Government Departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. The law of limitation binds everybody including the Government.

B) Hon’ble Calcutta High Court in the case of CIT Vs.Peerless General Finance & Investment Co., 31 taxmann.com 117 held as under: “Where entire statements and averments of Department for condonation of delay of 2197 days constituted culpable laches and negligence on part of departmental official, such delay could not be condoned.”

C) ITAT Delhi Bench in case of ACIT vs Vimal Mehra 28 taxmann.com 210 held as under:

“IT: Delay of 557 days in filing appeal by revenue taking ground of oversight and pressure of workload is found to be neither reasonable nor sufficient ground and, therefore, condonation of such delay is rightfully denied”.

D) 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

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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 557 days. Besides, there is absolutely no valid explanation/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, we hold that revenue failed to explain that delay in filing the appeal was due to sufficient cause.

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