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Income Tax Appellate Tribunal, B/“SMC” BENCH, CHENNAI
Before: SHRI CHANDRA POOJARI
आदेश / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: All these six appeals are filed by the Assessee are directed against the common order of the Learned Commissioner of Income Tax(A)-19, Chennai, dated 19.12.2015, which was passed consequent to order of A.O passed u/s. 153C r.w.s. 144 of the Act
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for the assessment years 2002-03, 2003-04,2004-05,2005-06, 2006-
07, 2007-08. Since issues involved in all these Assessee’s appeals
are common in nature, these appeals are clubbed together, heard
together, disposed off by this common order for the sake of
convenience.
The assessee raised the following common grounds in these
six appeals as follows:-
The order of the learned CIT (A) is (a) contrary to law, facts and circumstances of the case, (b) opposed to Principles of natural justice and legitimate expectation Evidence on record and there exists no satisfaction for employing 153C (c) Fair procedure in regard to asst and non furnishing of materials in regard to Additions and against due process of law and absence of incriminatory materials. 2. The learned CIT (A) fundamentally failed to appreciate that the AC lacks jurisdiction since the conditions for invoking section 144 is not satisfied and hence the whole assessment is nullity in law. 3. The learned CIT(A) fundamentally failed to appreciate that the ingredients to invoke section 144 are singularly absent since the appellant has replied to the notice issued by the learned AC and without prejudice the assessing officer had not issued material notice stating the basis of his additions sought to be made and justification for making additions and the materials he sought to base his reasons and miserably failed to discharge onus. 4. The order of the AO is full of clairvoyance of reasoning coupled with suspicion, surmises and conjectures and such assessment is ab-initio void and nullity ( see 37 ITR 26 ITR 736 & 775 SC 37 ITR 151 and 37 ITR 288 SC) 5. The learned CIT (A) erred in confirming the additions without making any sort of enquiry, human probability and discretion in regard to
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introduction of capital, unsecured Ioans,Iow drawings, alleged investments without any basis 6. The learned CIT erred in abdicating his duty to act judiciously and judicially, when particulars were available. 7. The learned CIT (A) erred in confirming the addition made u/s 234A.,234B& 234C of the Income tax Act
There was a delay of 744 days in filing all these six appeals
before this Tribunal. The ld.A.R drew my attention to the condonation
petition/Affidavit filed by the assessee, which reads as under:-
“AFFIDAVIT Appellant: Rajalakshmi Vettrivel I state that the delay in filing the appeal is neither wilful nor deliberate but due to divorce proceedings initiated by his spouse and the petitioner was under severe mental pain and agony. The petitioner was busy with the said court proceedings and hence the delay.
The appellant relies on the following principles deduced from the case law justification for condonation of delay. The relevant principles, from selected cases, are summarised as follows:
The appellant submit and invite attention to Article 39A of the Constitution of India Mandates that Justice should not be denied on account of disability of the Petitioner. I also invite the philosophy of the Government as adumbrated in its circular by way of instructions which is reproduced below: (extract from the judgment reported in 130 ITR 442)
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In their letter to the CBDT [part of Ex. E (collectively) to the petition] the statements made on behalf of the Board and the assurances given by the Government to the Public Accounts Committee in 1967-68, have been set out. The Committee had inquired whether by reason of considerations of time bar refunds were denied in cases of over-assessments. The Finance Secretary had then stated:
“Such instructions are already there. Regarding revision petitions, we advised the Commissioners of Income-tax to condone the delay even though the petitions are filed beyond the permissible limit of two years. We condone delay in hundreds of cases. We have instructed that it should be condoned freely”. The Committee in its report has also referred to a note furnished by the Finance Ministry, in which it is stated that “the Government is anxious to discharge its moral obligation, waiving legal impediments “. In the note, it has been further stated that:
“under the administrative instructions the Commissioners are required to refer to the Government cases of over-assessments occurring due to mistakes of law or fact relating to the computation of total income or tax thereon which cannot normally be rectified due to the operation of the law of limitation. In all suitable cases the Government does waive the limitation and refunds are invariably allowed “.
Similarly the apex court in the case of Commissioner land Acquisition Ms Katiji 167 ITR 471SC as under:-
The Legislature has conferred the power to condone delay by enacting section 51 of the Limitation Act of 1963 in order to enable the courts to do
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substantial justice to parties by disposing of matters on de merits “. The expression “sufficient cause” employed by the Legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose of the existence of the institution of courts. It is common knowledge that this court has been making a justifiably liberal approach in matters instituted in this court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:
Ordinarily, a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties.
----- 1.” Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.”
Page No: 0473
3.” Every day’s delay must be explained “does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s delay? The doctrine must be applied in a rational, common sense and pragmatic manner.
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When substantial justice and technical considerations are pitted against each other, the cause of substantial justic’e deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk.
It must be grasped that the judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the “ State “ which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step-motherly treatment when the” State “is the applicant praying for condonation of delay. In fact, experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve.
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In any event, the State which represents the collective cause of the community, does not deserve a litigant non grata status. The courts, therefore, have to be informed of the spirit and philosophy of the provision in the course of the interpretation of the expression” sufficient cause “. So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits.
In the light of the facts and circumstances The Legislature has conferred the power to condone delay by enacting section 51 of the Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on de merits “. The expression “ sufficient cause” employed by the Legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice that being the life-purpose of the existence of the institution of courts. It is common knowledge that this court has been making a justifiably liberal approach in matters instituted in this court. But the message does not appear to have percolated down to all the other courts in the hierarchy.
And such a liberal approach is adopted on principle as it is realized that:
Ordinarily, a litigant does not stand to benefit by lodging an appeal late.
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Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties.
1.” Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.” Page No: 0473 3.” Every day’s delay must be explained “does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s delay? The doctrine must be applied in a rational, common sense and pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk.
It must be grasped that the judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the “ State “ which was seeking
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condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step-motherly treatment when the” State” is the applicant praying for condonation of delay. In fact, experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the- buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant non grata status. The courts, therefore, have to be informed of the spirit and philosophy of the provision in the course of the interpretation of the expression “ sufficient cause “. So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits
Meaning of sufficient cause
Commissioner of Income-tax v. Data Software Research Co. P. Ltd. 288 ITR 289 ( Mad)
The principle of reasonableness has become one of the most important and active proposition in the administrative law. It is often used in the legal system with nick names, such as Wednesbury’s principle, Wednesbury’s reasonableness, Wednesbury’s unreasonableness, Wednesbury’s grounds, Wednesbury’s case, Wednesbury’s sense — a
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current legal jargon. Thus, “Wednesbury’s principle” is now a common and convenient label indicating special standard of reasonableness or special standard of unreasonableness, which has now become a criterion for judicial review of administrative discretion. The test is fundamentally based on rationality! irrationality. Virtually, the rationality in the positive sense or irrationality in the negative sense are tested in the light of intelligible reasons. But the question then is whether such intelligible reasons measure up to the legal standard of reasonableness. Of course, if such reasons are frivolous or fictitious, they are liable to be rejected as unreasonable or irrational. In other words, the relevancy of the reasons shall be the bed-rock of the consideration. Once the relevancy of the reason is satisfied, such reason shall stand the test of reasonableness. Alternatively, if the reasons do not stand the test of relevancy, as the same is frivolous, fictitious and extraneous, then such reasons do not stand the test of reasonableness and therefore, are held to be
unreasonable. While testing the reasonableness, the court should not
usurp the role of the authorities and it should resist the temptation to draw the bounds too tightly according to its own opinion and therefore, must aim to apply the objective standard for testing the reasonableness with the measure of relevancy and this is the essence of Wednesbury’s reasonablenesslWednesbury’s unreasonableness. The following are some of the references, where the words “reasonable” and “reasonable cause” have been explained by courts in India.
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In AzadiBachaoAndolan v. Union of India [2001] 252 ITR 471 (Delhi), it is explained that reasonable cause can be reasonably said to be a cause which prevents a man of average intelligence and ordinary prudence, acting under normal circumstances, without negligence or inaction or want of bona fides.
In Woodward Governor India P. Ltd. v. CIT [2002] 253 ITR 745 (Delhi); [2001] 118 Taxman 433, it is held that “reasonable cause” as applied to human action is that which would constrain a person of average intelligence and ordinary prudence. It can be described as a probable cause. It means an honest belief founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the person concerned, to come to the conclusion that the same was the right thing to do.
Similarly, in Kalakrithi v. ITO [2002] 253 ITR 754 (Mad), this court had an occasion to consider the words “reasonable cause” contained in section 273B of the Act, which reads as follows (headnote):
“The words ‘reasonable cause’ in section 273B of the Income-tax Act, 1961, must necessarily have a relation to the failure on the part of the assessee to comply with the requirement of the law which he had failed to comply with. In the case of delay in compliance, the cause shown must be for the whole of the period of the delay and not merely for a part thereof. If the cause shown is such as to explain the delay as a whole and constitute a good reason for the non-compliance, no penalty would be leviable. However, in cases where the cause shown is such as to explain a part of the delay, or the cause shown is only to mitigate the gravity of
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the non-compliance, such a cause cannot be extrapolated and treated as being good cause for the whole of the period of the delay in its entirety.”
The apex court in Collector v. P. Mangamma [2003] 4 SCC 488, while interpreting the word “reasonable” has observed as follows (headnote):
“It would be hard to give an exact definition of the word ‘reasonable’. Reason varies in its conclusions according to the idiosyncrasy of the individual and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic stands now like the jingling of a child’s toy. But mankind must be satisfied with the reasonableness within reach ; and in cases not covered by authority, the decision of the judge usually determines what is ‘reasonable’ in each particular case; but frequently reasonableness, ‘belongs to the knowledge of the law, and therefore, to be decided by the courts’. An attempt to give a specific meaning to the word ‘reasonable’ is trying to count what is not a number and measure what is not space. It means prima facie in law reasonable in regard to those circumstances of which the actor, called upon to act reasonably, knows or ought to know. It is impossible a priori to state what is reasonable as such in all cases. You must have the particular facts of each case established before you can ascertain what is reasonable under the circumstances.” Raja JagdambikaPratapNarain Singh v. Central Board of Direct Taxes 100 ITR 698 SC
At the first flush it may seem that the assessee’s agricultural income having been taxed illegally, a refund was obligatory and the fanatical insistence on the legal” pound of flesh “based on limitation and finality was not to be expected from a party like the State. Indeed, one might go to the extent of quoting the cynical words of the ancient legal wit: “Law and equity are two things which God hath joined, but which Man has put
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as under “. We have to examine the merits of the case in the light of the facts
Merely because an order has been passed by the officer and has not been appealed against, it does not become legal and final if otherwise it is void ; for instance, if there is a flagrant violation of natural justice
Any legal system, especially one evolving in a developing country, may permit judges to play a creative role and innovate to ensure justice It is humbly submitted that two stark facts generate some considerations of conscience in favour of the assessee.
The Supreme court in the case of MIs Dehri Light Railway Company Ltd reported in 1992 2 Scc 598 tellingly observed as under:-
The real test is “not physical running of time” Where the circumstances.” The conduct exits, the illegality which is manifest cannot be sustained on the ground of laches.
It is humbly submitted that on the facts of the case there exists manifest illegality when the tax is sought to be collected contrary to constitution mandate of Aricle 265 which clearly mandates that no tax shall be collected without the authority of law since the issue is once for and all settled by VDIS certificate issued by the Govt.
The department ought to have suomoto in the interest of the revenue should have cancelled the demand in the light of the acceptance of VDIS and the order of the ITAT which was not appealed by the revenue.CBDT Circulars—Binding nature—Implications of Circular No. 14(XL-35) of 1955—It is incumbent on ITOs to follow the above said circular and draw the attention of the assessee concerned to all the reliefs and refunds to which the assessee seems to be entitled on the facts of the case even
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though the assessee might have omitted to claim refund or relief. Reliance placed 9n—NavnitLal C. Javeri vs. K.K. Sen, AAC(1 965) 56 ITR 198 (SC) : TC 69R.265 applied The following circular of the Central Board of Revenue issued in June, 1955. The circular is reproduced at page 532 of volume I of Chaturvedi and Pithisaria’s Income- tax Law, Second Edn., and the circular is as follows:
“Officers of the Department must not take advantage of ignorance of an assessee as to his rights, It is one of their duties to assist a taxpayer in every reasonable way, particularly in the matter of claiming and securing reliefs and in this regard the officers should take the initiative in guiding a taxpayer where proceedings or other particulars before them indicate that some refund or relief is due to him. This attitude would, in the long run, benefit the Department, for it would inspire confidence in him that he may be sure of getting a square deal from the Department. Although, therefore, the responsibility for claiming refunds and reliefs rests with the assessees on whom it is imposed by law, officers should—
(a) draw their attention to any refunds or reliefs to which they appear to be clearly entitled but which they have omitted to claim for some reason or other;
(b) freely advise them when approached by them as to their rights and liabilities and as to the procedure to be adopted for claiming refunds and reliefs. “(Circular No. 14 (XL-35) of 1955 dt. 11-4-1955)
In connection with the effect of such circular, Mr. Shah relied upon the decision of the Supreme Court in NavnitLal C. Javeri vs. K.K. Sen, MC (1965) 56 ITR 198 (SC): TC 41R.238. There the majority of the learned judges hearing the appeal held that circular issued by the Central Board
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of Revenue, of the kind of circular mentioned therein, would be binding on all officers and persons employed in the execution of the IT Act.
The second manifest illegality is that the assumption of penalty proceedings is illegal sine the fundamental ground of satisfaction to initiate the proceedings is singularly absence in view of protective asst. made in the appellant’s case. The third manifest illegality is that the impugned demand is contrary to VDIS Scheme and also offending the principles of “legitimate expectation” of the Citizen that the Government would honour its promises made in pursuance of VDIS Declaration on waiver of entire penalty consequent to acceptance of VDJS declaration.
Length of delay is not a matter of concern”
The Supreme Court in the case of N. Balakrishnan reported in 1987 (1) SCC page 123 observed as follows;
(copy Para 13. Of the judgment) The same view was also expressed in Srinivasa Charities by the Madras High Court. Hence it is settled law that authorities can, if at all, can only impose cost, and cannot dismissal of the appeal.
To conclude, it is apt to quote observations of the Justice V.R. Krishna lyer Supreme Court as follows:
“oxygenate humane justice on human law”
The ld.A.R pleaded that all these appeals of the assessee were filed
late by 744 days to be condoned and to be admitted for adjudication
on merit.
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On the other hand, ld.D.R strongly opposed the condonation of
delay on the reason that this is an inordinate delay of 744 days in
filing these appeals.
The brief facts of the case, which are common to all
assessment years under appeal, are that there was a search in the
premises of the appellant’s husband Shri Pandit Vetrivel, at No.B-7,
Aswathi Apartmecns, No.16, II Crescent Park Road, Gandhi Nagar,
Adyar, Chennai - 20. The assessee’s husband was an individual
carrying on profession as astrologer having income from
business/profession. Notices u/s. 153C of the act was issued. In
response, the assessee filed copies of returns of income originally
filed. Notice u/s. 142(1) along with questionnaire was issued on
30.09.2009 for filing of certain details and explanation regarding
some irregularities. As the appellant could not be contacted, the
same was handed over to the AR. Since the efforts to contact the
appellant proved futile, a final show cause notice dated 12.11.2009
was issued and the same was served on the appellant through AR.
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There was no compliance on the part of the assessee in the way of
submission of any documents or explanations of the issues raised.
Against this background, assessment was completed u/s. 153C r.w.s.
144 as under:
A.Y Date of Assessed Addition/disallowance on account of Order income 2002-03 14.12.2009 Rs.6,83,425 Fresh capital introduced of Rs.62,150, unsecured loans from Pandian of Rs.1,00,000, low drawings of Rs.2,25,000, unaccounted investments of Rs.2,11,975.
2003-04 14.12.2009 Rs.4,92,500/- Gift from parents of Rs.25,000, unsecured loans from Pandian of Rs.1,00,000, low drawings of Rs. 2,30,000.
2004-05 14.12.2009 Rs.3,71,600/- Low drawings of Rs.2,25,000
2005-06 14.12.2009 Rs.3,73,300/- Low drawings of Rs.2,25,000
2006-07 14.12.2009 Rs.8,85,014/- Unsecured loans of Rs.55,000, other loans of Rs.1,50,000, peak cash credit of Rs.2,96,694, low drawings of Rs.70,000.
2007-08 14.12.2009 Rs.8,29,045/- Peak credit of Rs.1,00,000
Aggrieved by the order of ld. Assessing Officer, the assessee carried
the appeal before the Ld.CIT(A). On appeal, Ld.CIT(A) confirmed the
order of ld. Assessing Officer. Against the order of Ld.CIT(A), now the
Assessee is in appeal before us.
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I have considered the rival submissions and perused the orders
of the lower authorities impugned in these appeals. As far as the
delay in filing these appeals by 744 days against the common
appellate order of the CIT(A), viz. ITA No. 76 to 81/09-10 dated
19.02.2015 is concerned, one has to admit that the delay involved is
inordinate and not marginal.
6.1 It is settled position of law that it is only marginal delays that
can be condoned, and not inordinate delays running into several
years. We may at this juncture, refer to the Third Member decision of
Tribunal (Chennai) in the case of Jt. CIT v/s. Tractors & Farms Ltd. (
104 ITD 149)-TM, wherein drawing out a distinction between normal
delay and inordinate delay, it has been observed, vide head-note on
page 150 of the Reports (104 ITD) as follows-
"A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case, the consideration of prejudice to the other side will be a relevant factor, so the case calls for more cautious approach, in the latter case, no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard. The Court has to exercise the discretion on the facts of each case,
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keeping in mind that in considering the expression ‘sufficient cause’, the principle of advancing substantial justice is of prime importance."
That being so, the case-law relied before us by the learned
counsel for the assessee has no application to the facts of the
present case. Further I make it clear that there is no hard and fast
rule which can be laid down in the matter of condonation of delay and
Courts should adopt a pragmatic approach and discretion on the facts
of each case keeping in mind that in considering the expression
‘sufficient cause’ the principles of advancing substantial justice is of
prime importance and the expression ‘sufficient cause’ should receive
a liberal construction. A liberal view ought to be taken in terms of
delay of few days. However, when there is inordinate delay, one
should be very cautious while condoning the delay. The delay of
744cannot be condoned simply because the assessee’s case is hard
and calls for sympathy or merely out of benevolence to the party
seeking relief. In granting the indulgence and condoning the delay, it
must be proved beyond the shadow of doubt that the assessee was
diligent and was not guilty of negligence whatsoever. The sufficient
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cause within the contemplation of the limitation provision must be a
cause which is beyond the control of the party invoking the aid of the
provisions. The Supreme Court in the case of Ramlal v. Rewa
Coalfields Ltd., AIR 1962 SC 361 has held that the cause for the
delay in filing the appeal which by due care and attention could have
been avoided cannot be a sufficient cause within the meaning of the
limitation provision. Where no negligence, nor inaction, or want of
bona fides can be imputed to the assessee a liberal construction of
the provisions has to be made in order to advance substantial justice.
Seekers of justice must come with clean hands. In the present case,
the reasons advanced by the assessee do not show any good and
sufficient reason to condone the delays. The delays are not properly
explained by the assessee. There is no reason for condoning such
delay in this case. The delay is nothing but negligence and inaction of
the assessee which could have been very well avoided by the
exercise of due care and attention. Though the assessee has said
that the divorce proceedings initiated by her spouse were the reason
for delay in filing these appeals, there is no iota of evidence of such
proceedings before any Court. Hence, there exists no sufficient or
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good reason for condoning inordinate delays of more than 744 days in filing appeal before us. Accordingly, these appeals are dismissed as barred by limitation.
I accordingly decline to condone the delay of 744 days, and dismiss these six appeals of the assessee as barred by limitation.
9 In the result, all the six appeals of the assessee are dismissed. Order pronounced in the open court on 31st August, 2017.
Sd/- (चं� पूजार�) (CHANDRA POOJARI) लेखा सद�य /ACCOUNTANT MEMBER
Chennai, Dated the 31st August, 2017. K s sundaram.
आदेश क� ��त�ल�प अ�े�षत/Copy to: 1. अपीलाथ�/Appellant 3. आयकर आयु�त (अपील)/CIT(A) 5. �वभागीय ��त�न�ध/DR 2. ��यथ�/Respondent 4. आयकर आयु�त/CIT 6. गाड� फाईल/GF