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Income Tax Appellate Tribunal, COCHIN BENCH, COCHIN
Before: Shri Satbeer Singh Godara & Shri Amarjit Singh
O R D E R Per Bench This assessee’s appeal for A.Y. 2009-10 arises against the National Faceless Appeal Centre, Delhi [CIT(A)]’s DIN & Order No. ITBA/ NFAC/S/250/2023- 24/1059860407(1) dated 18.01.2024 in proceedings u/s. 250 of the Income Tax Act, 1961 (the Act).
Heard both parties. Case file perused.
It emerges at the outset that the learned CIT(A) has erred in law and on facts in refusing to condone the 3951 days delay in filing the appeal by holdings as under: - “7. DECISION: 7.1. At the outset, it is observed that there is delay in filing of appeal. As per clause (2) section 249 of the Income Tax Act, 1961, an appeal made to the Commissioner (Appeals) shall be presented within thirty days of the date of service of the notice of demand relating to the assessment or penalty, where the appeal relates to any assessment or penalty. 7.2 On going through the Form 35, it is noticed that order u/s 143(1) of the Income Tax Act, 1961 that is under appeal was passed by CPC, Bangalore, on 26.03.2012. Appellant may have not verified his e-filing portal or email where the intimation u/s 143(1) of the Act were served. He mentioned that date of service of order as 15.02.2023. He has not provided any evidence in respect of the service of intimation u/s. 143(1). 7.3 However, the appeal has only been filed on 21.02.2023. Thus, the appeal is delayed by 3951 days (more than 10 years). 7.4 In view of the delay observed in filing of appeal, deficiency letters have been issued to the appellant on 12.01.2023 informing that appeal is delayed and application for condonation of delay is not filed. Appellant has submitted reply vide letter dated 16.01.2024. The same is reproduced as under: BEFORE THE ADDL COMMISSIONER OF INCOME TAX (APPEALS)-1. VADODARA Name of Appellant : CELESTIAL INFRASTRUCTURE (P) LTD PAN : AACCC6737F Assessment Year : 2009-10 Appeal No : NFAC/2008-09/10205534 DIN & Letter No : ITBA/APL/S/25/2023-24/1059654499 (1).
PRAYER FOR CONDONATION OF DELAY The appellant company, while furnishing Appeal in Form No. 35 had sought condonation of delay in filing the appeal as per Sl. No. 14 & 15 of Form No.
The grounds raised
in Form No. 35 for the condonation of delay in filing the appeal is reproduced below:- "Though the Intimation u/s 143(1) is dated 26.03.2012, the appellant had not received it either by email or by post and the Intimation never came to the notice of the appellant before 15.02.2023. Only when the appellant saw the outstanding demand on 15.02.2023, the website was searched and the Intimation was located. Hence, the date of service of Intimation may kindly be taken as 15.02.2023. Even if the date of service of notice is taken as the date of the Intimation order, i.e., 26.03.2012, it is prayed to condone the delay in filing the appeal. The Intimation Order has never come to the notice of the Appellant. The delay in filing the appeal happened due to circumstances beyond the control of the appellant and the delay was unintentional. The addition made is apparently incorrect and if the delay is not condoned, it will cause great hardship to the appellant. The addition has occurred as the appellant did not get an opportunity to present the case. Appellant is a small company with turnover of only Rs. 31.71 lakhs for AY 2009-10. Presently, the company is inactive and there is no turnover and income for the appellant". Kindly note that the appellant is a very small company with limited resources. The addition is made by CPC on account of completely mistaken facts. Non-condonation of delay in filing the appeal would cause great hardship to the appellant. The delay in filing the appeal is non-intentional and was due to reasons beyond the control of the appellant. Considering the above, it is prayed to condone the delay in filing the appeal and to decide the appeal on merits. Signed Appellant 7.5 As per Section 249(3) of the Income Tax Act, 1961 the Commissioner (Appeals) may admit an appeal after the expiration of the stipulated period if he/she is satisfied that the appellant had sufficient cause for not presenting it within that period. In the given case the appeal has been filed after over 3951 days (more than 10 years) that constitutes an inordinate delay. 7.6. Since the reasons mentioned by the appellant are not satisfactory for condonation of delay in filing the appeal, it is evident that appellant had no cause for not filing the appeal in time. 7.7 In the case of Baroda Rayon Corporation Ltd (Gujarat
87. STC 266), Baldeo Lai Roy Vs State of Bihar (Patna
11. STC 104) and M Loganathan Vs CIT (Madras 302 ITR 139) it has been held that appellate authority needs to look into the fact that whether the appellant has acted with reasonable diligence in the prosecuting of appeal. In the present case I do not think that the appellant has acted with reasonable diligence. 7.8 In the case of Nileshkumar Chhaganbhai Vasoya Vs ITO, (ITA No. 64/Srt/2023) the Income Tax Appellate Tribunal (ITAT) Surat addressed the issue of condoning the delay in filing an appeal. The appellant was seeking relief for a delay of 244 days due to being a common man unfamiliar with tax proceedings. However, the ITAT held that the legal illiteracy of a common man cannot be an excuse and refused to condone the delay. The ruling underscores the importance of adhering to legal timelines and the responsibility of individuals to seek appropriate advice when engaging in legal proceedings. It also underlines the principle that ignorance or illiteracy of the law is not an excuse, 7.9 In the case of Ramlal and others Vs Rewa Coalfields Ltd (AIR 1962 SC 361), Tractors and Farm Equipments Ltd (ITAT Chennai 104 ITD 149) and Madhu Dadha (Madras 317 ITR 458) it has been held that party has to show reason for delay on the last date of limitation period and thereafter for each day. Further, condonation of delay is not a matter of right. Court has to exercise the discretionary Jurisdiction. 7.10 In the case of Sri Venkatesa Paper & Boards Ltd. [2006]
98. ITD 200, Hon'ble ITAT Chennai held that in granting indulgence and condoning delay, appellate authority must be satisfied that there had been diligence on part of appellant and it was not guilty of negligence. It is further held that sufficient cause within contemplation of provisions of section 249(3) must be a cause which is beyond control of party invoking aid of provisions. In the case of T.Kishan [2012] 23 taxmann.com 383, Hon'ble ITAT Hyderabad has held that in granting indulgence and condoning delay in filing appeal, it must be proved beyond shadow of doubt that assessee was diligent and was not guilty of negligence whatsoever. 7.11 In the case of Prabhudas Kishoredas Tobacco Products P.Ltd. v. Deputy Commissioner of Income-tax, [1994]
48. ITD 543 (AHD.), it has been held that it is a settled law that in order to get the delay condoned or excused in pursuing the remedies available to the Celestial Infrastructure (P) Ltd. appellant under the direct tax laws, the appellant has to explain the delay to the satisfaction of the Tribunal. In deciding what is sufficient cause for delay in filing the appeal, the true guide is whether the appellant has acted with reasonable diligence in prosecution of his appeal (AsiBai v. Gomathi AIR 1979 Mad. 115 at page 116). As laid down by the Supreme Court in the case of Ramlal v. Rewa Coalfields Ltd. AIR 1962 SC 361, 364, in the case of Sitaram Ramchandra v. M.N. Nagrashana AIR 1960 SC 260, 265, 266 and in the case of Mrs. Sandhya Rani Sarkar v. Smt. Sudha Rani Debi AIR 1978 SC 537, the appellant has to show sufficient cause for not filing the appeal on the last date of the limitation and must explain the delay made thereafter day by day till the actual date of the filing of the appeal. In other words, the whole of the delay must be explained. The Madras High Court in the case of Andal Sweet Stall & Tippo Dining Hall v. State of Tamil Nadu [1981]
48. STC 551 have laid down that a judgment or pronouncement by a court long after the period of limitation cannot be taken advantage for filing of appeal with a petition to excuse the delay in filing the appeal. It is true that the parties are entitled to wait until the last date of the limitation for filing of the appeal, but when it allows the limitation to expire and come forward with an explanation enumerating reasonable causes for not filing the appeal within the time prescribed under the statute, then the causes so shown must establish that because of some event or circumstances arising before limitation expired, she/it was not able to file the appeal within the stipulated time mandated in law. Any event, cause or circumstance arising after the expiry of the limitation period cannot constitute a sufficient cause. There may be events or circumstances subsequent to the expiry of the limitation period which may further delay in filing of the appeal, but the limitation has been allowed to expire when the appeal being filed must be traced to a cause arising within the period of limitation. 7.12 The appellant itself mentioned that it itself has searched the website and found intimation. If it can search the intimation through website, its argument that the intimation u/s 143(1) of the Act was not received is not justified. 7.13 In the present case, the reason mentioned by the appellant is contradictory as he himself has downloaded the intimation u/s 143(1) of the act from website. Hence, appellant failed to prove that it had acted diligently and was not guilty of negligence. Under these circumstances, as the appeal is filed beyond the due date prescribed under law. Therefore, delay in filing of appeal is not condoned. In the result, appeal stands dismissed. 7.14. In view of the fact that appeal has been dismissed on the ground of rejection of petition for condonation of delay, merit of the case is not being discussed.
In the result, appeal is "Dismissed".
Learned counsel vehemently argued that the impugned delay in filing the assessee’s earlier appeal deserves to be condoned as it had duly proved all the relevant circumstances beyond its control during the course of lower appellate proceedings. He further quote the case of Collector Land Acquisition vs. Mst. Katiji & Ors (1987) 167 ITR 471 (SC) that all such technical aspects must give way for the cause of substantial justice.
We find no merit in assessee’s instant condonation submission, once the CIT(A) therein has duly rebutted its condonation averments filed in the course of lower appellate proceedings. Learned counsel further sought to buttress the point that the assessee could not have been asked to prove that it had not received intimation u/s. 143(1) process by way of email or post. We are of the considered view that the assessee could indeed be held to be unable to prove any fact, which was its bounden duty to at least explain the foregoing detail in filing of the lower appeal by indicating the circumstances beyond its control. There is not even a positive assertion by the assessee in its condonation petition sufficiently explaining the reasonable constraints which could lead to condonation of the impugned delay. We thus find no fault with the learned lower authority’s above findings refusing to condone the delay of 3951 days delay. Rejected accordingly.
This assessee’s appeal is dismissed.