M.S. MODI AND SONS ,JAIPUR vs. THE ASSESSING AUTHORITY, DELHI

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC’’ JAIPUR Jh lanhi xkslkbZ] U;kf;d lnL; ds le{k BEFORE: Hon’ble SHRI SANDEEP GOSAIN, JUDICIAL MEMBER vk;dj vihy la-@ITA No. 658/JP/2023 fu/kZkj.k o"kZ@Assessment Year : 2018-19 cuke M/s. M.S. Modi & Sons The ITO Vs. 2509, Kanwatiyo Ka Khurra Ward 5 (1) Ramganj Bazar, Jaipur – 302 002 Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAKFM 9817 D vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@Assessee by : Shri Tarun Mittal, CA jktLo dh vksj ls@Revenue by: Mrs. Monisha Choudhary, Addl. CIT-DR lquokbZ dh rkjh[k@Date of Hearing : 08/05/2024 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 02/08/2024 vkns'k@ORDER PER: SANDEEP GOSAIN, JM This appeal filed by the assessee is directed against order of the ld. CIT(A) dated 25-05-2023, National Faceless Appeal Centre, Delhi [ hereinafter referred to as (NFAC) ] for the assessment year 2018-19 raising therein following grounds of appeal. ‘’1. On the facts and in the circumstances of the case the Ld. CIT(A) has erred in confirming the action of Id.AO in not allowing deduction of Rs.27,11,022/- claimed by assessee u/s 10AA, arbitrarily. Appellant prays that assessee has fulfilled all

2 ITA NO. 658/JP/2023 M/S. M.S. MODI & SONS VS ITO, WARD 5(1), JAIPUR the conditions prescribed for claiming deduction and thus deduction claimed deserve to be allowed as such. 1.1 That, the Id. CIT(A) has erred in confirming the disallowance of deduction claimed by assessee u/s 10AA for the 10th year, when the same was claimed and allowed for past 9 consecutive assessment years, more particularly when there was no change in factual position and assessee had fulfilled all the conditions prescribed for claiming deduction. Appellant prays that claim of assesse is in accordance with provisions of law and deserves to be allowed. 2.1 Apropos Ground No 1 & 2, it is noted that the ld. CIT(A) had dismissed the appeal of the assessee by observing as under:- 5. Appellate Order: On considering the appellant submission and facts and circumstances of the case the following order is passed:- 5.1 The appellant contended that on the facts and in the circumstances of the case the Ld. Assessing Officer has grossly erred in not allowing deduction of Rs.27,11,022/- claimed by assessee u/s 10AA, arbitrarily. Appellant prays that assessee has fulfilled all the conditions prescribed for claiming deduction and thus deduction claimed deserve to be allowed as such. The appellant in his submission submitted the appellant firm though came into the existence in terms of the partnership deed made and executed on 08.09.2004, however it had commenced the commercial production only w.e.f 17.10.2008. Accordingly, in FY 2008-09, i.e. relevant to Assessment Year 2009-10, appellant claimed deduction u/s 10AA for the first time. Such claim of assessee was duly evidenced by Audit report in Form 56F as prescribed u/s 10A of the Income Tax Act. In Form 56P filed for A.Y. 2009-10 (APB 07-09), date of

3 ITA NO. 658/JP/2023 M/S. M.S. MODI & SONS VS ITO, WARD 5(1), JAIPUR commencement of manufacture was mentioned as "17 October 2008" and "Number of consecutive year for which the deduction is claimed was mentioned as "First" Afterwards, appellant claimed deduction u/s 10AA in subsequent assessment years i.e. from A.Y. 2010-11 and till A.Y. 2018-19, je, in the year under consideration which incidentally be the last year of claim of deduction. In Form 56F for A.Y. 2010-11 also (APB 14-17), date of manufacture was stated as 17.10.2008. On perusal of the records available it is observed that during the assessment proceedings the Assessing Officer found that the appellant claimed deduction of Rs. 27,11,022/- u/s 10AA of the IT Act and the same was disallowed by the Assessing Officer. The appellant claimed that it had commenced manufacturing or produce articles or things from FY 2008-09 and furnished the evidence for the same wherein it is found that in Audit Report in Form 56F the date of commencement of manufacture or production stated as 17/10/2005 and no evidence is furnished by the appellant in support of its claim. For claiming the deduction u/s 10AA of the Act the appellant was asked for documentary evidence about the compliances were made to fulfill the condition for deduction and the appellant did not furnish any evidence which prove that the appellant intention was mala-fide and it is not advertent. The findings of the AO that the appellant made unsubstantiated claim for V deduction u/s 10AA of the Act which is right and legal, no need to interfere. In view of the above the appeal is dismissed. 5.2 The appellant contended that on the facts and in the circumstances of the case and in law, ld.AO has grossly erred in initiating penalty proceedings u/s 270A (1) r.w.s. 270A(9) of the Act. On perusal of the records available it is observed that during the assessment proceedings the Asses Assessing Officer considered that the appellant misreported its

4 ITA NO. 658/JP/2023 M/S. M.S. MODI & SONS VS ITO, WARD 5(1), JAIPUR income and initiated penalty proceedings and issued notice u/s 274rw.s. 270A(9)(a) of the IT Act. The penalty proceedings initiated is consequent to the disallowance of the deduction claimed by the appellant u/s 10AA of the Act, no separate adjudication is required. Hence, the appeal is dismissed. 6. In the result, the appeal is dismissed.’’ 2.2 Further, it is noticed in this case that there is a delay 101 days in filing the appeal by the assessee for which the assessee has filed an application dated 01-11-2023 for condonation of delay with following prayer: ‘’1. That the order was passed by National Faceless Appeal Centre, Delhi on 25-05-2023. 2. That the accountant of assessee was unable to attend the office due to medical emergency at the time when the order was passed/ served at assessee registered e-mail id as a result of which certain mail received by the assessee remain unattended. 3. That the assessee came to know about the order on 04- 10-2023 when the assessee received a show cause notice u/s 270A of the Act wherein it was show caused why the penalty should not be imposed. 4. Thus, it is submitted that the delay in filing the appeal is absolutely inadvertent and has occurred due to circumstances beyond the control of assessee. 5. Thus the assessee always has acted in bona fide and the delay is of only 101 days. To this effect, the assessee has filed an affidavit deposing the above facts of the case.

5 ITA NO. 658/JP/2023 M/S. M.S. MODI & SONS VS ITO, WARD 5(1), JAIPUR 2.3 During the course of hearing the ld. relied upon the order of the order of the ld. CIT(A). The ld. DR further objected to such inordinate delay of 101 days made by the assesee in filing the appeal. The ld. DR also relied upon a decision of Hon’ble Bomaby High Court in the case of Vama Apparels (India ) Pvt. Ltd. vs ACIT,Central Circle -42 [2019] 102 Taxmann.com 398 (Bomab) wherein the Hon’ble Bench has dismissed the appeal of the assessee as to the condonation of delay and allowed the appeal of the Revenue. 2.4 The Bench has heard both the parties and perused the materials available including the order of the ld. CIT(A), condonation application of the assessee alongwith written affidavit giving the reasons therein for such inordinate delay. The Bench noticed that the assessee has filed the appeal having delay of 101 days. In this regard, the only reason mentioned in the application is that Accountant of the assessee could not attend the office because of his medical emergency at the time when the order was passed and the assessee came to know only on 4-10-2023 when the assessee received show cause notice u/s 270A of the Act. To my mind these reasons are absolutely casual in nature and no details of any nature have been filed by the assessee. This application has been moved in a very casual and cavalier manner without mentioning any sufficient cause for seeking condonation of delay. Hence, it is clear that the assessee is not interested in pursuing/ prosecuting the appeal by explaining the delay in filing the appeal with documentary evidences.

6 ITA NO. 658/JP/2023 M/S. M.S. MODI & SONS VS ITO, WARD 5(1), JAIPUR The Bench is of the considered opinion that the maxim ‘’Vigilantivbus, non dormientibus, jura subveniunt is clearly applicable to the assessee (Law assists those who are vigilant and not those who sleep over their rights)’’ . Hence, the Bench is of the view that every assessee is bound to file the appeal within the stipulated period prescribed under the law. In belated appeal, the delay can only be condoned when sufficient reason is shown for delay. The assessee who seeks condonation of delay, therefore, must explain the delay of each day. It is true that Courts have time and again held that pedantic approach must not be adopted while condoning the delay in filing of appeal and explanation of each day’s delay should not be taken literally but the fact remains that there must be a reasonable explanation for the delay. In the present case, the reasons cited are not reasonable by any measure and bereft of an attempt to explain the delay by showing sufficient cause warranting condonation of the same. The delay is attributable to the gross/ sheer negligence on the part of the assessee and not attributable to any sufficient cause which prevented him from filing the appeal within limitation date. It cannot be disputed that the onus to show that ‘’sufficient cause’’ exists for condonation of delay lies upon the assessee. It is obligation upon the assessee to show sufficient cause due to which assessee was prevented from filing the appeal in time. The Hon’ble Apex Court in the case of Maji Sinnemma vs Reddy Sridevi 2021 SSC online SC 1260 dated 16-12-12021 has held as under:-

7 ITA NO. 658/JP/2023 M/S. M.S. MODI & SONS VS ITO, WARD 5(1), JAIPUR "Even though limitation may harshly affect the rights of a party, but it has to be applied with all its rigour when prescribed by the statute. The expression sufficient cause cannot be liberally interpreted if negligence in action or lack of bonafide is attributed to the party. If the court starts condoning delay where no sufficient cause is made out by imposing conditions, then that would amount to violation of statutory principle and showing utter disregard ard to logistics 3.6. Recently, the Hon'ble Supreme Court in the case of Ajay Dabra vs Pyare Ram & Ors arising out of SLP (C) No. 15793/2019 dated 31/01/2023 dismissed applications for condonation of delay filed under Section 5 of the Limitation Act, 1963, declining to condone a delay of 254 days, because the reasons assigned for the condonation were not sufficient reasons for condonation of the delay. 3.7. I am further fortified by the decision of the Hon'ble Supreme Court in the case of Balwant Singh (Dead) vs Jagdish Singh & Ors, dated 08/07/2010, where it has held in para 6 that "Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribed and the courts have no power to extend the period of limitation on equitable grounds". The order supra also refers to various judgements where it has been held that "here is no question of construing the expression 'sufficient cause' liberally either because the party in default is the Government or because the question arises in connection with the impleading of the legal representatives of the deceased respondent. The provisions of the Code are with a view to advance the cause of justice by applying the principle of reasonable time' This, however, does not mean that the Court should readily accept whatever the appellant alleges to explain away his default. The decision supra also holds that Section 5 of the Limitation Act are to apply para materia. Section 3 of the Limitation Act requires that suits or proceedings instituted after the prescribed period of limitation shall be dismissed. However, in terms of Section 5, the discretion is vested in the Court/Appellate Authority to admit an appeal or an application, after the expiry of the prescribed period of limitation, if the appellant shows sufficient cause' for not preferring the application

8 ITA NO. 658/JP/2023 M/S. M.S. MODI & SONS VS ITO, WARD 5(1), JAIPUR within the prescribed time. The expression 'sufficient cause commonly appears in the provisions of Order 22 Rule 9 (2), CPC and Section 5 of the Limitation Act, thus categorically demonstrating that they are to be decided on similar grounds.’’’ After evaluating the facts of the present case, the Bench is conscious of the facts that the Courts should not adopt an injustice oriented approach in rejecting the application for condonation of delay. However, the Court while allowing such application has to draw a distinction between delay and inordinate delay for want of bona fides of an inaction or negligence would deprive a party of the protection of Section 5 of the Limitation Act, 1963. ‘’Sufficient cause’’ is a condition precedent for exercise of discretion by the Court for condoning the delay. After having gone through different citations of different forums as well as courts, the Bench has noticed that the Court have time and again held that when mandatory provision is not complied with and that delay is not properly, satisfactorily and convincingly explained, the Court cannot condone the delay on sympathetic grounds alone. The Bench is of the view that Courts are not a ‘’walk- in- place’’ where appellant can approach whenever they want. The law of Limitation is enshrined in the legal maxim ‘’Interest Reipublicae Ut Sit Finis Litium (It is for the general welfare that a period be put to litigation). Rules of Limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time. To understand the scope

9 ITA NO. 658/JP/2023 M/S. M.S. MODI & SONS VS ITO, WARD 5(1), JAIPUR of the term ‘’sufficient cause’’ in matters of delay, the Bench place reliance on the decision of Hon’ble Supreme Court in the case of Basawaraj and Ors vs The Special Land Acquisition Officer, AIR 2014 SC 746 wherein the Hon’ble Supreme Court held that the sufficient cause does not include the negligent manner in which the applicant had acted or/ and there was a want of bona fide, on his/her part. If a party does not act diligently or remains inactive, it cannot qualify as sufficient ground allowing the court to exercise discretion in favour of such a party. The Bench is further of the view that condonation of delay is not an automatic right but requires the person requesting it to provide a valid explanation for each day of delay and demonstrate a reasonable cause. The discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case. ‘’Sufficient Cause’’ cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributing to the party. On this proposition, we place reliance on the in the case of Ram Lal & Ors vs Rewa Coalfields Ltd. AIR 1962 Supreme Court 361 wherein the Hon’ble Supreme Court has held that the decision to grant condonation of delay is discretionary even if sufficient cause is proven. Moreover, the Court considers all relevant facts including diligence and good faith but the scope of this enquiry while exercising the discretionary power is limited to only such relevant facts. Lastly, the Bench while referring to the case of Anshul Agarwal vs New Okhla Industrial Development Authority (2011) 14

10 ITA NO. 658/JP/2023 M/S. M.S. MODI & SONS VS ITO, WARD 5(1), JAIPUR SCC 578 held that the reason provided for the delay must be something beyond the individual’s control that prevented them from approaching the Court. After analyzing and evaluating the facts of the present case, it is nowhere coming forth from the instant application moved by the assessee seeking condonation of delay as to whether the applicant herein made any efforts or attempt to contact his counsel engaged in the tax proceedings after passing of impugned order u/s 250 of the Act. Thus the plea of the assessee cannot be taken to be as gospel truth unless the applicant would have shown that he made any serious efforts after passing of impugned order for deciding the same before any appellate authority or moreover, no such information has been furnished by the assessee before me. Therefore, the Bench is of the considered view that that decision to condone the delay has to be exercised judiciously and if Court starts condoning delay where ‘’no sufficient cause’’ is made out then that would amount to violation of statutory principles. Thus, the Bench rely upon the decision of Hon’ble High Court in the case of Mewa Ram (deceased by L.Rs) & Ors vs State of Haryana, AIR 1987 SC 45,State of Nagaland vs Lipok AO & Ors, AIR 2005 SC 2191 and D. Gopinathan Pillai vs State of Karal;a & Anr.AIR 2007 SC 2624. Recently the Hoh’ble Supreme Court in its latest decision in the case of Pathapati Subba Reddy (Died) by Lrs. And vs Special Deputy Collector (La) on 8th April 2024 has held as under:-

11 ITA NO. 658/JP/2023 M/S. M.S. MODI & SONS VS ITO, WARD 5(1), JAIPUR ‘’6. The moot question before us is whether in the facts and circumstances of the case, the High Court was justified in refusing to condone the delay in filing the proposed appeal and to dismiss it as barred by limitation. 7. The law of limitation is founded on public policy. It is enshrined in the legal maxim “interest reipublicaeut sit finislitium” i.e. it is for the general welfare that a period of limitation be put to litigation. The object is to put an end to every legal remedy and to have a fixed period of life for every litigation as it is futile to keep any litigation or dispute pending indefinitely. Even public policy requires that there should be an end to the litigation otherwise it would be a dichotomy if the litigation is made immortal vis-a- vis the litigating parties i.e. human beings, who are mortals. 8. The courts have always treated the statutes of limitation and prescription as statutes of peace and repose. They envisage that a right not exercised or the remedy not availed for a long time ceases to exist. This is one way of putting to an end to a litigation by barring the remedy rather than the right with the passage of time. 9. Section 3 of the Limitation Act in no uncertain terms lays down that no suit, appeal or application instituted, preferred or made after the period prescribed shall be entertained rather dismissed even though limitation has not been set up as a defence subject to the exceptions contained in Sections 4 to 24 (inclusive) of the Limitation Act. 10. Section 3(1) of the Limitation Act, for the sake of convenience, is reproduced hereinbelow: “3. Bar of limitation.- (1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.” 11. Though Section 3 of the Act mentions about suit, appeal and application but since in this case we are concerned with appeal, we would hereinafter be mentioning about the appeal only in context with the limitation, it being barred by time, if at all, and if the delay in its filing is liable to be condoned. 12. In view of the above provision, the appeal which is preferred after the expiry of the limitation is liable to be dismissed. The use of the word ‘shall’ in the aforesaid provision connotes that the dismissal is mandatory subject to the exceptions. Section 3 of the Act is peremptory and had to be given

12 ITA NO. 658/JP/2023 M/S. M.S. MODI & SONS VS ITO, WARD 5(1), JAIPUR effect to even though no objection regarding limitation is taken by the other side or referred to in the pleadings. In other words, it casts an obligation upon the court to dismiss an appeal which is presented beyond limitation. This is the general law of limitation. The exceptions are carved out under Sections 4 to 24 (inclusive) of the Limitation Act but we are concerned only with the exception contained in Section 5 which empowers the courts to admit an appeal even if it is preferred after the prescribed period provided the proposed appellant gives ‘sufficient cause’ for not preferring the appeal within the period prescribed. In other words, the courts are conferred with discretionary powers to admit an appeal even after the expiry of the prescribed period provided the proposed appellant is able to establish ‘sufficient cause’ for not filing it within time. The said power to condone the delay or to admit the appeal preferred after the expiry of time is discretionary in nature and may not be exercised even if sufficient cause is shown based upon host of other factors such as negligence, failure to exercise due diligence etc. 13. It is very elementary and well understood that courts should not adopt an injustice-oriented approach in dealing with the applications for condonation of the delay in filing appeals and rather follow a pragmatic line to advance substantial justice. 14. It may also be important to point out that though on one hand, Section 5 of the Limitation Act is to be construed liberally, but on the other hand, Section 3 of the Limitation Act, being a substantive law of mandatory nature has to be interpreted in a strict sense. In Bhag Mal alias Ram Bux and Ors. vs. Munshi (Dead) by LRs. and Ors.1, it has been observed that different provisions of Limitation Act may require different construction, as for example, the court exercises its power in a given case liberally in condoning the delay in filing the appeal under Section 5 of the Limitation Act, however, the same may not be true while construing Section 3 of the Limitation Act. It, therefore, follows that though liberal interpretation has to be given in construing Section 5 of the Limitation Act but not in applying Section 3 of the Limitation Act, which has to be construed strictly. 15. It is in the light of the public policy upon which law of limitation is based, the object behind the law of limitation and the mandatory and the directory nature of Section 3 and Section 5 of the Limitation Act that we have to examine and strike a balance between Section 3 and Section 5 of the Limitation Act in the matters of condoning the delay. 16. Generally, the courts have adopted a very liberal approach in construing the phrase ‘sufficient cause’ used in Section 5 of (2007) 11 SCC 285

13 ITA NO. 658/JP/2023 M/S. M.S. MODI & SONS VS ITO, WARD 5(1), JAIPUR the Limitation Act in order to condone the delay to enable the courts to do substantial justice and to apply law in a meaningful manner which subserves the ends of justice. In Collector, Land Acquisition, Anantnag and Ors. vs. Katiji and Ors.2, this Court in advocating the liberal approach in condoning the delay for ‘sufficient cause’ held that ordinarily a litigant does not stand to benefit by lodging an appeal late; it is not necessary to explain every day’s delay in filing the appeal; and since sometimes refusal to condone delay may result in throwing out a meritorious matter, it is necessary in the interest of justice that cause of substantial justice should be allowed to prevail upon technical considerations and if the delay is not deliberate, it ought to be condoned. Notwithstanding the above, howsoever, liberal approach is adopted in condoning the delay, existence of ‘sufficient cause’ for not filing the appeal in time, is a condition precedent for exercising the discretionary power to condone the delay. The phrases ‘liberal approach’, ‘justice- (1987) 2 SCC 107 = AIR 1987 SC 1353 oriented approach’ and cause for the advancement of ‘substantial justice’ cannot be employed to defeat the law of limitation so as to allow stale matters or as a matter of fact dead matters to be revived and re-opened by taking aid of Section 5 of the Limitation Act. 17. It must always be borne in mind that while construing ‘sufficient cause’ in deciding application under Section 5 of the Act, that on the expiry of the period of limitation prescribed for filing an appeal, substantive right in favour of a decree-holder accrues and this right ought not to be lightly disturbed. The decree-holder treats the decree to be binding with the lapse of time and may proceed on such assumption creating new rights. 18. This Court as far back in 1962 in the case of Ramlal, Motilal And Chhotelal vs. Rewa Coalfields Ltd3 has emphasized that even after sufficient cause has been shown by a party for not filing an appeal within time, the said party is not entitled to the condonation of delay as excusing he delay is A.I.R. 1962 SC 361 the discretionary jurisdiction vested with the court. The court, despite establishment of a ‘sufficient cause’ for various reasons, may refuse to condone the delay depending upon the bona fides of the party. 19. In Maqbul Ahmad and Ors. vs. Onkar Pratap Narain Singh and Ors.4, it had been held that the court cannot grant an exemption from limitation on equitable consideration or on the ground of hardship. The court has time and again repeated that when mandatory provision is not complied with and delay is not properly, satisfactorily and convincingly explained, it ought not to condone the delay on sympathetic grounds alone.

14 ITA NO. 658/JP/2023 M/S. M.S. MODI & SONS VS ITO, WARD 5(1), JAIPUR 20. In this connection, a reference may be made to Brijesh Kumar and Ors. vs. State of Haryana and Ors.5 wherein while observing, as above, this Court further laid down that if some person has obtained a relief approaching the court just or immediately when the cause of action had arisen, other persons cannot take the benefit of the same by A.I.R. 1935 PC 85 2014 (4) SCALE 50 12| 22 approaching the court at a belated stage simply on the ground of parity, equity, sympathy and compassion. 21. In Lanka Venkateswarlu vs. State of Andhra Pradesh & Ors.6, where the High Court, despite unsatisfactory explanation for the delay of 3703 days, had allowed the applications for condonation of delay, this Court held that the High Court failed to exercise its discretion in a reasonable and objective manner. High Court should have exercised the discretion in a systematic and an informed manner. The liberal approach in considering sufficiency of cause for delay should not be allowed to override substantial law of limitation. The Court observed that the concepts such as ‘liberal approach’, ‘justice-oriented approach’ and ‘substantial justice’ cannot be employed to jettison the substantial law of limitation. 22. It has also been settled vide State of Jharkhand &Ors. vs. Ashok Kumar Chokhani& Ors.7, that the merits of the (2011) 4 SCC 363 AIR 2009 SC 1927 13 | 22 case cannot be considered while dealing with the application for condonation of delay in filing the appeal. 23. In Basawaraj and Anr. vs. Special Land Acquisition Officer8, this Court held that the discretion to condone the delay has to be exercised judiciously based upon the facts and circumstances of each case. The expression ‘sufficient cause’ as occurring in Section 5 of the Limitation Act cannot be liberally interpreted if negligence, inaction or lack of bona fide is writ large. It was also observed that even though limitation may harshly affect rights of the parties but it has to be applied with all its rigour as prescribed under the statute as the courts have no choice but to apply the law as it stands and they have no power to condone the delay on equitable grounds. 24. It would be beneficial to quote paragraph 12 of the aforesaid decision which clinches the issue of the manner in which equilibrium has to be maintained between adopting liberal (2013) 14 SCC 81 14| 2 2 approach and in implementing the statute as it stands. Paragraph 12 reads as under: “12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute

15 ITA NO. 658/JP/2023 M/S. M.S. MODI & SONS VS ITO, WARD 5(1), JAIPUR so prescribes. The Court has no power to extend the period of limitation on equitable grounds. “A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, “inconvenience is not” a decisive factor to be considered while interpreting a statute.” 25. This Court in the same breath in the same very decision vide paragraph 15 went on to observe as under: “15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the “sufficient cause” which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning 15 | 22 such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature.” (emphasis supplied) 26. On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that: (i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself; (ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time; (iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally;

16 ITA NO. 658/JP/2023 M/S. M.S. MODI & SONS VS ITO, WARD 5(1), JAIPUR (iv) In order to advance substantial justice, though liberal approach, justice- oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act; (v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence; (vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal; (vii) Merits of the case are not required to be considered in condoning the delay; and (viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and 17 | 2 2 condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision.’’ Therefore, the Bench is of the considered view that that the decision to condone the delay has to be exercised judiciously and if the Courts start condoning the delay where no sufficient cause is made out then that would amount to violation of statutory principles. Thus the Bench rely upon the decision of Hon’ble High Court in the case of Mewa Ram (deceased by L.Rs) & Ors vs State of Haryana, AIR 1987 SC 45,State of Nagaland vs Lipok AO & Ors, AIR 2005 SC 2191 and D. Gopinathan Pillai vs State of Karal;a & Anr.AIR 2007 SC 2624. Firstly, the assessee was negligent in pursuing the appeal and there is apparently no due diligence on the part of the assessee in pursuing the appeal.

17 ITA NO. 658/JP/2023 M/S. M.S. MODI & SONS VS ITO, WARD 5(1), JAIPUR Nowhere, it has been mentioned by the ld.AR of the assessee as to what was the medical emergency of the Accountant of the assessee, name of the Accountant and at which date he left the office. No material facts have been stated either in the application for seeking condonation of delay or in the affidavit. Therefore, the casual and cavalier approach in pursuing the appeal on behalf of the assessee is deprecated. Thus the Bench does not consider the condonation application of the assessee being it meritless and dismiss the appeal. 3.0 In the result, the appeal of the assessee is dismissed with no orders as to costs. Order pronounced in the open court on 02 /08/2024.

Sd/- ¼lanhi xkslkbZ½ (Sandeep Gosain) U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 02 /08/2024 *Mishra आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. The Appellant- Shri M.S. Modi and Sons, Jaipur 2. izR;FkhZ@ The Respondent- The ITO, Ward 5(1), Jaipur 3. vk;dj vk;qDr@ The ld CIT 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA No.658/JP/2023) vkns'kkuqlkj@ By order,

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