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Facts
The Revenue's appeal is delayed by 1250 days, and they have filed an affidavit for condonation of delay citing administrative reasons, COVID-19 pandemic, and cadre restructuring. The delay is attributed to "inherent, unavoidable administrative delays".
Held
The Tribunal noted that the Revenue's explanation for the significant delay was generic and lacked specific reasons, relying on administrative reasons and citing the Supreme Court's judgment in the case of the Office of the Chief Post Master General & Ors. vs. Living Media India Ltd. The Tribunal found no sufficient or reasonable cause for condoning the delay.
Key Issues
Whether the delay in filing the appeal by the Revenue is to be condoned based on the reasons provided.
Sections Cited
143(3), 253(5)
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Income Tax Appellate Tribunal, ‘C’ BENCH, CHENNAI
Before: SHRI MAHAVIR SINGHAND SHRI MANOJ KUMAR AGGARWAL
सुनवाई क� तारीख/Date of Hearing : 18.09.2024 घोषणा क� तारीख/Date of Pronouncement : 20.09.2024 आदेश /O R D E R
PER MAHAVIR SINGH, VICE PRESIDENT:
This appeal by the Revenue is arising out of the order of the Commissioner of Income Tax (Appeals)-6, in 6/18-19 dated 03.03.2020. The assessment was framed by the Assistant Commissioner of Income Tax, Corporate Circle, Chennai for the assessment year 2016-17 u/s. 143(3) of the Income Tax Act, 1961 (hereinafter the ‘Act’) vide order dated 28.12.2018.
2. At the outset, the ld.CIT-DR stated that this appeal by Revenue is delayed by 1250 days and he stated that Revenue has filed affidavit for condonation of delay and subsequent explanation explaining delay vide letter No.ITO, Corp.Ward 2(1)/Condonation of delat/2024-25 dated 01.07.2024 by the ITO, Corporate Ward 2(1), Chennai.
The brief facts are that the order of CIT(A) is dated 03.03.2020 and as per Form No.36, the impugned order was communicated to the office of CIT on 12.06.2020. The appeal before the Tribunal was filed on 12.01.2024. The limitation period from 12.06.2020 (the date of communication of impugned order) will start from 11.08.2020 and thereby, there is a delay of 1250 days (correct computation of delay period is 1248 days)
The ld.CIT-DR first of all drew our attention to the affidavit filed by the ITO, Corporate Ward 2(1), Chennai and the same reads as under:- AFFIDAVIT FILED BY THE APPELLANT I, M. Vijayalakshmi, daughter of Late Shri G. Mahadevan aged about 58 years, holding the post of Income Tax Officer, Corporate Ward 2(1), Room No.51 5, 5th Floor, Wanaparthy Block, Aayakar Bhawan, No.121, Uttamar Gandhi Salai, Nungambakkam, Chennai-600034, do solemnly affirm and state as follows:
1) M/s. Electronics Corporation of Tamil Nadu Ltd PAN : AAACE1670K is I assessed under Corporate VWard-2(1), Chennai and I am acquainted with the facts & circumstance of the case. Limitation date for filing of appeal before the Income Tax Appellant Tribunal was 10.08.2020 for the said case. During the year 2020, it is a known fact that the normal lives and operations of Institutions were challenged and affected by the spread of COVID-19 pandemic.
The normal functioning of offices were also affected and staggered work timings and restrictions in movements and communication between various office verticals were also affected. Despite challenges of such magnitude and intensity, all possible efforts were taken by the Jurisdictional Assessment hierarchy in the interest of the Revenue to discharge all Statutory functions within prescribed time limits. Hence the inadvertent missing out of filing of further appeal in the instant case was out of ordinary and caused due to circumstances beyond the control of the office. It would be in place that even the Hon'ble Supreme Court of India had empathetically taken this issue and held certain time period as excluded for the purpose of computing limitation in various legal proceedings and statutes.
Added to the above, another significant event which has affected the functioning of offices was the Cadre Restructuring that happened in August, 2020 due to which various structural changes had been effected in the Department with the introduction of Faceless vertical and Jurisdictional verticals separately. As a consequence, erstwhile Corporate 1 and 2 Ranges of Chennai charge were merged into Corporate Range-1, Chennai. In other words, all the offices functioning under DCIT/ACIT/ITOs of erstwhile Corporate 1 and 2 Ranges of Chennai charge were merged into Corporate Range-1, Chennai. This had to be effected practically through PAN Migrations, Transfer of files and other materials, Transfer and movement of Officers and officials between charges. Even the Offices of other Jurisdictional Offices had to undergo similar transformations. Amidst all these challenges to the normal functioning of offices, all the official works were attended to to the best of available time and resources. Despite such efforts, filing of further appeal in the instant case has been inadvertently missed out. Therefore it is humbly submitted that the delay was neither wilful nor wanton but due to the unavoidable circumstances explained as above. In view of the above, it is prayed that the Hon'ble ITAT may please condone the delay of 1250 days in filing of the Appeal by kindly considering the Circumstances as stated above and also huge tax effect in the interests of Revenue. However, due to certain inherent, unavoidable administrative delays, this office was unable to file the appeal before the Hon'ble ITAT within the prescribed time limit and this office missed to file the appeal before the Hon'ble ITAT in the prescribed time limit.
2) I state that important issues arise in this appeal and grave prejudice will be caused to Revenue, if the delay is not condoned.
3) The delay was neither the willful nor wanton but due to the unavoidable circumstances explained above.
4) It is therefore, prayed that the Hon'ble Income Tax Appellant Tribunal may please condone the delay of 1250 days (including the period affected by COVID-19 in two spells) under section 253(5) of the Income Tax Act, 1961 in filing of the second appeal which may be heard on merits and render justice. Sd/- (M. VIJAYALAKSHMI) Income Tax Officer, Corporate Ward-2(1), Chennai Solemnly, affirmed at Chennai on 12th January, 2024.
4.1 The ld.CIT-DR then drew our attention to the above stated letter dated 01.07.2024 explaining the delay and explanation given by the concerned ITO reads as under:- Explanation with evidence for the lapsed period cited by the Hon'ble ITAT to condone the delay, in the Departmental Appeal case of M/s. Electronics Corporation of Tamil Nadu Lt-AAACE1670K for AY 2016-17.
Ms Electronics Corporation of Tamil Nadu Ltd, PAN: AAACE1670K for the A.Y. 2016-17, the limitation date for filing of appeal before the Income Tax Appellant Tribunal was 10.0S.2020. The CIT (A) order received on 03.03.2020 and the due date of fling appeal to Honble ITAT is 10.08.2020 Department has filed the appeal before the Hon'ble ITAT on 12.01.2024 with a request through Affidavit for Condonation of Delay of 1250 days which includes Covid period also.
1) There was a delay of 1250 days in filing the appeal before the Hon'ble ITAT. With regard to the condonation of delay application, the Senior AR of the Department has sent a mail stating that the Hon'ble ITAT had directed the AO to file a detailed reason for delay for the period from 01.01.2022 to the date of filing of the appeal on 12.01.2024.
2) It is humbly submitted that the delay was neither the willful nor wanton but due to the unavoidable circumstances as stated below: i) The Cadre Restructuring work was took place in the Department vide Notification No. 8/2019 dated 27.09.2019 and Notification No. 2/2020 dated 01/09/2020 (copy enclosed) with effect from 13.08.2020. As per the notification, the Corporate Circle 1(1), 1(2), 2(1) & 2(2) are merged with Corporate Circle 1(1). Due to which various structural changes had been effected with the introduction of Faceless vertical and Jurisdictional verticals separately. As a consequence of it, the erstwhile Corporate 1 and 2 Ranges of Chennai charges were merged into one Range, Corporate Range-1, Chennai. In other words, all the offices functioning under DCIT/ACIT/ITOs of erstwhile Corporate 1 and 2 Ranges of Chennai charge were merged into Corporate Range-1, Chennai. This had to be effected practically through PAN Migrations, Transfer of files and other materials, locating of files due to transfer, Transfer and movement of Officers and officials between charges. Even the Offices of other Jurisdictional Offices had to undergo similar transformations. Amidst all these challenges to the normal functioning of offices, all the official works were attended to the best of available time and resources. ii) Moreover, vide OM in F. No. 11013/9/2014-Estt.A-III dated 3rd January 2022 and dated 31 January, 2022(copy enclosed), the Board has given direction with regard to the Physical attendance of Government Servants and restricted to 50% of the actual strength and the remaining 50% shall work from home & a roaster has been prescribed. Amidst all these challenges to the normal functioning of offices, all the official works were attended to the best available time and resources. iii) Despite such efforts, filing of further appeal in the instant case has been inadvertently missed out. Therefore it is humbly submitted that the delay 3) In view of the above, it is prayed that the Hon'ble ITAT may please condone the delay in fling of the Appeal by kindly considering the extraordinary circumstances as stated above and also huge tax effect in the interests of Revenue.
4) I state that important issues arise in this appeal and grave prejudice will be caused to Revenue, if the delay is not condoned and assessee will not be prejudice as Contest the issue on merits.
5) It is therefore, prayed that the Hon'ble Income Tax Appellant Tribunal may please condone the delay of 508 days (total 1250 days) (including the period affected by COVID-19 in two spells) under section 253(5) of the Income Tax Act, 1961 in filing of the second appeal which may be heard on merits and render justice.
Encl.: i) Notification No.2/2020 dated 01/09/2020 ii) OM dated 03.01.2022 & 31.01.2022 Sd/- (M. Vijayalakshmi) Income Tax Officer, Corporate Ward-2(1), Chennai.
4.2 The ld.CIT-DR read out the affidavit and also read out explanation stating the facts. On query from the Bench, what is the sufficient or reasonable cause for delay of 1248 days, he tried to explain vide OM in F.No.11013/9/2014-Estt.A-III dated 03.01.2022 and 31.01.2022 (copy enclosed with the written submissions), the physical attendance of Government Servants were restricted to 50% of the existed strength and the remaining 50% can work from home and roaster has been prescribed. When queried, the particular ITO,
We have gone through the affidavit as well as submissions and when this was confronted to ld.counsel for the assessee, he drew our attention to the previous order in assessee’s own case being assessee’s appeal in for this very assessment year 2016-17 was decided by the Tribunal and was heard on 20.12.2022 and order pronounced on 04.01.2023 and despite the fact that the assessee’s appeal was adjudicated by the Tribunal and order pronounced on 04.01.2023, the appeal was not at all filed by Revenue against the same CIT(A)’s order but ultimately this appeal was filed with another bunch of appeals for assessment years 2006-07 to 2013-14 in ITA Nos.2431 to 2437/CHNY/2017 was heard on 04.01.2024, for which order was pronounced on 21.02.2024. The ld.counsel for the assessee stated that this appeal was filed on 12.01.2024 after hearing all these appeals i.e., bunch of seven appeals. It means that even Revenue, being aware, has not taken pains to file appeal on time even at the point when assessee’s appeal was pronounced by this Tribunal on 04.01.2024. Hence, according to ld.counsel, there is no reasonable or sufficient cause for
We have heard rival contentions and gone through facts and circumstances of the assessee. We have gone through the submissions of ld.CIT-DR and also the explanation submitted before us and noted that the explanation submitted by the Revenue is generic in nature and particularly that due to inherent and unavoidable administrative delays, this office was unable to file the appeal before the Tribunal, this was the only plea of the revenue. We noted that exactly on similar circumstances, the Hon’ble Supreme Court in the case of the Office of the Chief Post Master General & Ors. vs. Living Media India Ltd., in Civil Appeal Nos.2475 & 2475 of 2012 held as under:- 11) We have already extracted the reasons as mentioned in the "better affidavit" sworn by Mr. Aparajeet Pattanayak, SSRM, Air Mail Sorting Division, New Delhi. It is relevant to note that in the said affidavit, the Department has itself mentioned and is aware of the date of the judgment of the Division Bench of the High Court in LPA Nos. 418 and 1006 of 2007 as 11.09.2009. Even according to the deponent, their counsel had applied for the certified copy of the said judgment only on 08.01.2010 and the same was received by the Department on the very same day. There is no explanation for not applying for certified copy of the impugned judgment on 11.09.2009 or at least within a reasonable time. The fact remains that the certified copy was applied only on 08.01.2010, i.e. after a period of nearly four months. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Department nor the person in-charge has filed any explanation for not applying the certified copy within the prescribed period. The other dates mentioned in the affidavit which we have already extracted, clearly show that there was delay at every stage and except mentioning the dates of receipt of the file and the decision taken, there is no explanation as to why such delay had occasioned. Though it was stated by the Department that the delay was due to unavoidable circumstances and genuine difficulties, the fact remains that from day one the Department or the person/persons concerned have not evinced diligence in prosecuting the matter to this Court by taking appropriate steps.
12) It is not in dispute that the person(s) 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 this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.
Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.
13) In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The 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. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.
6.1 In view of the above judgment of Hon’ble Supreme Court in the case of the Office of the Chief Post Master General & Ors., supra and Revenue, we are convinced that there is no sufficient or reasonable cause for condonation of this long delay because Revenue is only pleading that, “However, due to certain inherent, unavoidable administrative delays, this office was unable to file the appeal before the Hon’ble ITAT within the prescribed time limit and this office missed to file the appeal before the Hon’ble ITAT in the prescribed time limit” and this in our view, cannot be a reasonable or sufficient cause. Hence, we dismiss the appeal in limini as un-admitted.
In the result, the appeal filed by the Revenue is dismissed.
Order pronounced in the open court on 20th September, 2024 at Chennai.