ITO (EXEMPTIONS), CHENNAI vs. RESEARCH FOUNDATION FOR JAINOLOGY,, CHENNAI

आदेश / O R D E R PER G. PAVAN KUMAR, JUDICIAL MEMBER:

ITA No.1514/Mds/2015. :- 2 -: and 250 of the Income Tax Act, 1961 (herein after referred to as ‘the Act’).

“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’’.

ITA No.1514/Mds/2015. :- 3 -:

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.

3. It is submitted that the order of the learned Commissioner of Income Tax (Appeals) - VII, Chennai was passed in 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 ITA No.1514/Mds/2015. :- 4 -:

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.

4. It is submitted that the delay in filing appeal is neither wanton nor wilful, but for the reasons aforesaid.

5. 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'.

6. 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.

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

ITA No.1514/Mds/2015. :- 5 -:

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.

ITA No.1514/Mds/2015. :- 6 -:

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 ITA No.1514/Mds/2015. :- 7 -: 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.

Order pronounced on Friday, the 29th day of April, 2016 at Chennai.