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Income Tax Appellate Tribunal, “C ” BENCH, CHENNAI
Before: SHRI A.MOHAN ALANKAMONY & SHRI. G. PAVAN KUMAR
आदेश / O R D E R PER G. PAVAN KUMAR, JUDICIAL MEMBER:
The appeal filed by the Revenue is directed against order of
the Commissioner of Income-tax (Appeals)-VII, Chennai in ITA No.248/13- 14, dt 03.07.2014 for the assessment year 2010-2011 passed u/s.143(3)
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and 250 of the Income Tax Act, 1961 (herein after referred to as ‘the
Act’).
Before going into the merits of the case, the Revenue has
pleaded for condonation of delay of 249 days in filing the appeal and
explained the reasons and filed the affidavit.
The ld. Authorised Representative of the assessee seriously
objected to the condonation of delay as the department has filed
affidavit without any reasonable cause and filed written submissions as
under:-
“This Departmental appeal was filed by the appellant after a delay of 249 days. The reason for delay is non availability of the judicial file for the earlier assessment year 2009-2010 which was relied on by the Commissioner of Income Tax (Appeals) in the present order. The assessee respectfully submits that no appeal as filed against the appellate order for the assessment year 2009- 2010. When the department is contending that each year is different and thee is no res judicate in income tax matters, there is no need for refeering to the appellant order for the earlier year and the deparemnt could have processed the case indepnendently without any influence of the fingings of the appellate authority in the earlier assessment year. It is submitted that the delay is inordinate and there are no sufficient cause for such long delay in filing the appeals. In this connection, the assessee rely on the decision of the Supreme Court in the case of Postmaster General vs Living Media India Ltd (2012) 3 SCC 563 wherein the Hon’ble Supreme Court ruled that red tapism within the department, slow movement of files, impersonal machinery, bureaucratic methodology in making decisions are no longer acceptable as ‘’sufficient cause’’ for condonation of delay’’.
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We have heard both the parties. At the time of hearing the ld.
Departmental Representative submitted that the Department has filed
affidavit and prayed for condonation of delay explaining the reasons for
delay in filing the appeal and argued to consider the appeal on merits.
The condonation petition is as under:-
‘’I, S. Thilagavathy, Wife of ShrLB. Sridhar, aged about 43 years, having office at "Aayakar Bhavan", 121, Mahatma Gandhi Road, Chennai - 34, do hereby solemnly and sincerely state as follows:
I am the Income Tax Officer (Exemption), Ward - 2, 2. Chennai and well acquainted with the facts and circumstances of the case.
It is submitted that the order of the learned Commissioner of Income Tax (Appeals) - VII, Chennai was passed in ITA No.248/13-14 dated 03.07.2014 for the assessment year 2010-11. The order of the learned CIT(A)- VII was communicated on 21.08.2014. In that order, the learned ClT(A) had placed reliance on the order of his predecessor in the assessee's own case for the assessment year 2009-10 (ITA NO.643 I 11-12 dated 27.11.2012). In order to process the order under consideration pertaining to the assessment year 2010-11, the fate of the earlier order of the learned CIT(A), for the assessment year 2009-10, was required to be ascertained. However, due to decentralisation of the Judicial section, the relevant judicial folder for the assessment year 2009-10 could not be traced. After exhaustively searching the exemption section as well as the judicial section, the judicial folder for the assessment year 2009-10 was located in the record room of the judicial section. It may be noted, in this regard, centralised processing of ClT(A)'s orders was done in the Office of the CIT (Judicial) for more than three decades and only recently, decentralisation of the judicial section took place and the processing of the CIT(A)'s orders started to take place in the Office of the jurisdictional CIT itself, which added to the confusion in locating the judicial folder for the assessment year 2009-10. Immediately, after tracing the said folder for the
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assessment year 2009-10, the order of the learned CIT(A)-VII for the assessment year 2010-11 was processed and a decision to file further appeal before the Hon'ble ITAT, Chennai, was taken and the appeal papers were prepared for submission before the Hon'ble Tribunal. The same are being submitted after a delay of 249 days.
It is submitted that the delay in filing appeal is neither wanton nor wilful, but for the reasons aforesaid.
The Hon'ble Tribunal's kind attention is also invited to the Hon'ble Apex Court's decision in the case of Collector, Land Acquisition v. Mst. Katiji (1987)(167 ITR 471)(SC), wherein, it has been held that 'ordinarily, a litigant does not stand to benefit by lodging late appeal'.
It is also submitted that the Hon'ble Jurisdictional High Court's decision in the case of Saiyana Warehouse (P) Ltd. V. ACIT, Com. Cir.-VI{1), Chennai (TCA No.463 of 2014) may be taken of.
7 Kind attention is also invited to the Third Member order of the Hon'ble Chennai Tribunal in a trust case, viz., MIs. People Education and Economic Development Society (PEEDS) (100 ITD 87) (Chennai)(TM), wherein, delay of 617 days was condoned after the reason for the delay was sufficiently explained.
In view of the above, it is prayed that the delay in filing the appeal may be condoned u/s. 253(5) of the I.T. Act, 1961 and the appeal may be heard on merits’’.
At the time of hearing, the ld. Departmental Representative could not
explain the circumstances under which the appeal filed belatedly and
emphasizing the cause of delay in filing the appeal is neither willful nor
wanton. Prime facie the Department has made an inordinate delay in
filing appeal, the Co-ordinate bench of the Tribunal in the case of Joint
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Commissioner of Income Tax vs. Tractors & Farms Equipments Ltd 104
ITD 149 at page No.150 wherein it was observed as under :-
‘’ A distinction must be made between a case where the delay is inordinate and a case where the delays 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 a 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, keeping in mind that in considering the expression ‘sufficient cause’ the principle of advancing substantial justice is of prime importance.
The law assists those who are vigilant, not those who sleep over their rights. This principle is embodied in the dictum: vigilantibus non doemientibus jura subveniunt.
The delay cannot be condoned simply because the appellant’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 appellant was diligent and was not guilty of negligence, whatsoever. The sufficient cause within the contemplation of the limitation provisions must be a cause which is beyond the control of the party invoking the aid of the provisions. 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 or inaction, or want of bonafides can be imputed to the appellant, 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 our opinion the circumstances explained in the condonation
petition could not convince us and there seems to be a gross negligence
on the part of the Department were no priority was fixed and such lapses
cannot be condoned. Following the decisions of Tractors & Farms
Equipments Ltd (supra) and office of the Chief Postmaster General & Ors.
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Vs. Living Media India Ltd & ANR (supra) were it was held that it is not in
dispute that the person(s) concerned were well aware of 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 advance of various earlier
decisions. 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 thee 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
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anticipated benefit for government departments. The negligence, inaction and inordinate delay in filing the appeal cannot be condoned. Law assists those who are vigilant and not those who sleep over their rights. We considering the facts and circumstances explained in affidavit and also in the light judicial decisions, decline to condone the delay in filing the appeal and accordingly dismiss the appeal as unadmitted.
In the result, the appeal of the Revenue is dismissed.
Order pronounced on Friday, the 29th day of April, 2016 at Chennai.
Sd/- Sd/- (ए. मोहन अलंकामणी) (जी. पवन कुमार) (A. MOHAN ALANKAMONY) (G. PAVAN KUMAR) �या�यक सद�य /JUDICIAL MEMBER लेखा सद�य/ACCOUNTANT MEMBER चे�नई/Chennai �दनांक/Dated:29th April, 2016. KV
आदेश क� ��त�ल�प अ�े�षत/Copy to: 1. अपीलाथ�/Appellant 2. ��यथ�/Respondent 3. आयकर आयु�त (अपील)/CIT(A) 4. आयकर आयु�त/CIT 5. �वभागीय ��त�न�ध/DR 6. गाड� फाईल/GF