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Income Tax Appellate Tribunal, SURAT (SMC
Before: DR. A. L. SAINI
आदेश / O R D E R PER DR. A. L. SAINI, AM: Captioned appeal filed by the assessee, pertaining to Assessment Year (AY) 2000-01, is directed against the order passed by the Learned Commissioner of Income Tax (Appeals)-V, Surat, [in short “the ld. CIT(A)”], in Appeal No.CAS-V/106/2007-08, dated 19.08.2009, which in turn arises out of an assessment order passed by the Assessing Officer u/s 143(3) r.w.s 147 of the Income Tax Act, 1961 (hereinafter referred to as “the Act”), dated 20.07.2007.
The appeal filed by the assessee, for Assessment Year 2000-01, is barred by limitation by 3793 days. The assessee has moved a petition requesting the Bench to condone the delay. To explain, the ITA.50/SRT/2020/AY.2000-01 Jayesh Chandulal Shah delay, the assessee has filed the affidavit. The contents of the assessee`s petition for condonation of delay, are reproduced below: “I have filed an appeal under section 253(1) of the Income Tax Act, 1961 on 26.02.2020 vide Commissioner (Appeals) relating to A.Y.2000-01 made on the 19.08.2009, which was communicated to us on the 08.10.2009. Though this appeal should have been filed in the office of the Tribunal on or before the 07.12.2009 counting the period of sixty days from the date of communication of the order but it could not be so filed because my father, Shri Chandulal Amrutlal Shah had taken care of all appeals and legal matters in our family, Shri Chandulal Amrutlal Shah was suffering of heavy diabetics and liver problem, his left leg's fingers and his right leg's thumb had to cut due to diabetic neuropathy and he was expired on 05.09.2021 due to Internal Bleeding and cardiorespiratory arrest. The CIT(A)'s order was received by my father, Shri Chandulal Amrutlal Shah on 08.10.2009. but due to medical condition and aged, he did not forward the order to the 'AR' for filing of appeal and the many appeals had been filed before the Tribunal for his family members cases, So, he had believed that the appeal was already filed before the Hon'ble ITAT, Ahmedabad in case of Jayesh Chandulal Shah for AY 2000-01. When the date of hearing is fixed on 13.02.2020 in case of Shri Chandulal Amrutlal Shah by the Hon'ble ITAT, Surat Bench, Surat & 84/SRT/2017 and during the preparation of Paper book, I came to know that the Appeal was not filed against the order of CIT(A) in the case of Jayesh Chandulal Shah for AY 2000-01. Thereafter, I contacted to the AR and immediate file appeal before the Hon'ble ITAT, Surat on 26.02.2020. Hence, necessary arrangement could not be made for filing of appeal before Hon'ble ITAT, Surat in time. Copies of medical papers and copy of death certificate of Chandulal Amrutlal Shah are submitted herewith. In view of the above fact, it is clear that is the delay in submission of the appeal is due to good and sufficient reasons, therefore, pray that the ; delay in filling the appeal should be condoned and the appeal should be treated as filled within the allowed time.”
In order to explain the delay, Shri P. M. Jagasheth, Learned Counsel for the assessee, submitted a chart before the Bench, showing the sequence of events. The said chart is reproduced below:
ITA.50/SRT/2020/AY.2000-01 Jayesh Chandulal Shah
Shri P. M. Jagasheth, Learned Counsel for the assessee, also submitted the death certificate of Mr. Chandulal Amrutlal Shah, which is paced at page no.7 and 8 of the paper book. The ld. Counsel also submitted that assessee`s father was feeling illness of blood pressure and diabetes since a long period and to substantiate this fact, ld. Counsel furnished before the Bench, the necessary certificates of Doctors, which are placed at page nos. 10 to 17 of paper book. The various other medical reports, pertaining to assessee`s father, were also submitted before the Bench, which are mentioned below:
ITA.50/SRT/2020/AY.2000-01 Jayesh Chandulal Shah (i) 2D colour Doppler echocardiography report vide page no.19 of paper book. (ii) Haemogram profile vide page no.20 of paper book. (iii) The report of bio-chemical vide page no.21 of paper book. (iv) The report of examination of urine, vide page no.22 of paper book, (v) The report of x-ray foot AP/oblique, view page no.23 of paper book, (vi) Report of consultant surgeon named Dr. C. G. Vaghani vide page no.25 of paper book, (vii) The report of ultrasound examination of abdomen and pelvis vide page no.26 of paper book. (viii) The report of diabetes analysis, which is placed at page no.27 of paper book. (ix) Blood report which is placed at page no.28 of paper book. (x) The report of antibiotic sensitivity, which is placed at page nos.29 and 30 of paper book. (xi) The medical report of diabetes analysis done by Vidhya Clinic laboratory vide page no.31 of paper book, biochemistry analysis of Dr. Pradip P. Dalwani vide page nos.32 to 35 of paper book, urine albumin to creatinine ratio vide page no.36 of paper book, urine analysis vide page no.37 of paper book. The assessee also submitted complete blood count (CBC) report vide page no.38 of paper book, Prothrombin time vide page no.39, Creatinine & fasting blood sugar, SGPT and SGOT examination vide page no.40 of the paper book.
ITA.50/SRT/2020/AY.2000-01 Jayesh Chandulal Shah 5. The ld. Counsel argued that above medical reports pertain to assessee`s father, who used to look after the taxation and legal matters of the entire family and since the assessee`s father had been feeling severe illness since last many years, and therefore because of this continuous severe illness and the tension environment in the family, the assessee`s father could not take the decision to file the appeal before the Tribunal. The ld. Counsel also argued that there is a mistake on the part of the Chartered Accountant/Advocate of the assessee, who did not file the appeal, on time before the Tribunal and therefore since the Advocate / Chartered Accountant of the assessee has committed the mistake, the assessee should not be penalized.
The ld. Counsel also pleaded that in assessee’s case, there is a protective addition only. The substantive addition has been made by the assessing officer in the hands of the other party, therefore there is no loss to the Revenue. Hence ld Counsel contended that assessee is not going to get any benefit by filling the appeal late, before the Tribunal, and therefore in the interest of justice, the delay may be condoned and matter may be remitted back to the file of ld. CIT(A) for fresh adjudication.
On the other hand, Learned Departmental Representative (ld. DR) for the Revenue, vehemently pleaded that assessee has not explained the sufficient reasons to condone such huge delay of more than ten (10) years. The ld. DR also pleaded that such huge delay should not be condoned merely because the assessee`s father was suffering illness from a long period, moreover, in his illness period, the assessee`s father was active and filed many other appeals of the family, before the CIT(A) and Tribunal therefore it is a not a ITA.50/SRT/2020/AY.2000-01 Jayesh Chandulal Shah sufficient reason to condone the delay. The ld. DR also pointed out that delay should not be condoned on the reasons that the assessee’s case relates to protective addition and the substantive addition has been sustained in the hands of another person. The theory to condone the delay is not based on the criteria that in the assessee`s hand there is only protective addition.
8. The ld. DR also pointed out that there was no mistake on the part of the CA/Advocate to file the appeal. If the assessee`s father would have asked his Advocate/CA to file the appeal, the said appeal would have been filed on time by the Advocate/CA. The order of CIT(A) was received by the assessee`s father, 10 years back, and he affirmed this fact, and the assessee`s father used to send other orders of CIT(A) to his CA/Advocate to file appeal of family members. Therefore, there is not a mistake on the part of the Advocate/CA of the assessee. In fact, the assessee`s father has not asked his CA/Advocate to file this appeal. Hence, ld DR contended that such huge delay should not be condoned, as the assessee has not explained the sufficient reasons for such huge delay and for that ld. DR for the Revenue relied on the judgment of Hon'ble Supreme Court in the case of Majji Sannemma @ Sanyasirao vs Reddy Sridevi & Ors., in Civil Appeal No.7696 of 2021, dated 16.12.2021.
9. I have heard both the parties on this preliminary issue. The solitary argument made by ld Counsel for the assessee, to condone the delay of 3793 days, (more than 10 years) is that assessee`s father, who used to look after the taxation and legal matters of the entire family and since the assessee`s father had been feeling severe illness since last many years, and therefore because of this continuous severe ITA.50/SRT/2020/AY.2000-01 Jayesh Chandulal Shah illness and the tension environment in the family, the assessee`s father could not take the decision to file the appeal before the Tribunal. However, I have observed that assessee`s father was active during the said period of 10 years and he used to furnish the papers to his CA/Advocate to file the appeals of family members before different forums, that is before, CIT(A) and Tribunal etc. The assessee`s father received the order of CIT(A) 10 years back and in this period the assessee`s father was active. Besides, I have not noticed any mistake of assessee`s CA/Advocate. Hence, considering these speaking facts, the delay in filing the appeal should not be condoned.
Before me, the assessee has submitted a table showing delay in days which is placed at page no.6 of the assessee’s paper book. The assessee also submitted the death certificate of Chandulal Amrutlal Shah which is placed at page no.7 of paper book. The assessee also filed the medical papers of Chandulal Amrutlal Shah which is placed at page nos. 8 to 40 of the assessee`s paper book. The assessee also filed the judgment of the Hon'ble ITAT, Surat in the case of Chandulal Amrutlal Shah (HUF) and Chandulal Amrutlal Shah (individual), which is placed at page nos.41 to 55 of paper book. The assessee also submitted a list of appeals filed before the Tribunal in the case of his family members during the period of 10 years.
I find that the another argument, as put forward before the Bench to explain the delay, is that though order of CIT(A) was received by the assessee on 08.10.2009, and this assessee`s appeal should have been filed in the office of the Tribunal on or before the 07.12.2009. Therefore, appeal should have been filed before the Tribunal by considering the period of sixty (60) days from the date of ITA.50/SRT/2020/AY.2000-01 Jayesh Chandulal Shah communication, on or before 07.12.2009. However, the assessee has filed the appeal before Tribunal on 26.02.2020, hence there is a huge delay. The delay starts from 07.12.2009 and runs upto 26.02.2020. Therefore, delay in days comes at 3733 days. However, in terms of years the delay in filing the appeal is more than ten (10) years (approx.). To explain the delay of 3733 days, the assessee argued that since his father (Shri Chandulal Amrutlal Shah) who used to take care of all appeals and legal matters of assessee’s family, was suffering from diabetes and liver problem. The assessee has himself stated in the affidavit that his father (Shri Chandulal Amrutlal Shah) had received the order of CIT(A) on 08.10.2009, however, due to medical condition and old age, he did not forward the order of CIT(A) to the concerned advocate to file the appeal before Tribunal. The assessee also made a contradictory statement in the affidavit stating that during the period of severe illness of his father (Shri Chandulal Amrutlal Shah), his father (Shri Chandulal Amrutlal Shah) had filed many appeals of his family members before the Tribunal. Now, the moot question arised before me is that when many appeals of assessee’s family had been filed by his father during his illness, then this assessee’s appeal should have also been filed before the Tribunal on due time, therefore why this huge delay of more than ten (10) years to file this assessee`s appeal. Therefore, considering these facts, that where assessee’s father (Shri Chandulal Amrutlal Shah), in severe illness condition filed several appeals of his family members, the reasons explained by the assessee stating that since his father had been feeling severe illness, hence delay of 3733 days has occurred in filing this appeal, are not acceptable.
ITA.50/SRT/2020/AY.2000-01 Jayesh Chandulal Shah 12. The another excuse made by the assessee is that when the date of hearing is fixed on 13.02.2020 in case of Shri Chandulal Amrutlal Shah, by the ITAT, Surat, (in and 84/SRT/2017) then only assessee`s father came to know that appeal has not been filed, is not acceptable. The reason being the assessee’s father who used to take care of all appeals and legal matters of family, know these facts, that substantive addition was made in one appeal and protective addition was made in other appeal. After going through above facts, it emerges that facts narrated in the affidavit are in the nature of cooked story and afterthought which do not have any base or foundations. Hence, the arguments made by ld. Counsel to explain the delay, should not be acceptable, as the assessee has not explained the sufficient reasons to condone such huge delay. I note that the sufficient cause within the contemplation of these provisions must be a cause which is beyond the control of the party invoking the aid of the provisions. The cause for delay in filing the appeal which by due care and attention could have been avoided cannot be a sufficient cause within the meaning of these provisions.
A wrong advice given by a competent lawyer who had exercised reasonable care and skill in giving the advice, on a matter, which is capable of more than one interpretation. Although there is no general proposition that mistake of Counsel by itself is always a sufficient ground for condoning the delay, it may in certain circumstances be taken into account in condoning the delay. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose such as the laches on the part of the litigant or an attempt to save limitation in an underhand way. I
ITA.50/SRT/2020/AY.2000-01 Jayesh Chandulal Shah find that in assessee`s case, the assessee`s father did not furnish the relevant papers to his CA/Advocate and did not ask his CA/Advocate, to file the appeal, hence the question of mistake by his CA/Advocate, does not arise, and in this scenario the CA/Advocate cannot be blamed.
Therefore, I note that assessee has failed to explain the sufficient cause to condone such huge delay, hence delay should not be condoned and for that I relay on the judgment of Hon'ble Supreme Court in the case of Majji Sannemma @ Sanyasirao vs Reddy Sridevi & Ors., in Civil Appeal No.7696 of 2021, dated 16.12.2021, wherein it was held as follows: “6.2 We have gone through the averments in the application for the condonation of delay. There is no sufficient explanation for the period from 15.03.2017 till the Second Appeal was preferred in the year 2021. In the application seeking condonation of delay it was stated that she is aged 45 years and was looking after the entire litigation and that she was suffering from health issues and she had fallen sick from 01.01.2017 to 15.03.2017 and she was advised to take bed rest for the said period. However, there is no explanation for the period after 15.03.2017. Thus, the period of delay from 15.03.2017 till the Second Appeal was filed in the year 2021 has not at all been explained. Therefore, the High Court has not exercised the discretion judiciously. 7. At this stage, a few decisions of this Court on delay in filing the appeal are referred to and considered as under:- 7.1 In the case of Ramlal, Motilal and Chhotelal (supra), it is observed and held as under:- In construing s. 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light- heartedly disturbed. The other consideration which cannot be ignored is that Page | 10
ITA.50/SRT/2020/AY.2000-01 Jayesh Chandulal Shah if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chattappan, (1890) J.L.R. 13 Mad. 269, "s. 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words ‘sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the assessee.” In the case of P.K. Ramachandran (supra), while refusing to condone the delay of 565 days, it is observed that in the absence of reasonable, satisfactory or even appropriate explanation for seeking condonation of delay, the same is not to be condoned lightly. It is further observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. It is further observed that while exercising discretion for condoning the delay, the court has to exercise discretion judiciously. 7.3 In the case of Pundlik Jalam Patil (supra), it is observed as under:- “The laws of limitation are founded on public policy. Statutes of limitation are sometimes described as “statutes of peace”. An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. The principle is based on the maxim “interest reipublicae ut sit finis litium”, that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury, quickening diligence and preventing oppression. The object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.” 7.4 In the case of Basawaraj (supra), it is observed and held by this Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case. It is further observed that the expression “sufficient cause”
ITA.50/SRT/2020/AY.2000-01 Jayesh Chandulal Shah cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party. It is further observed that even though limitation may harshly affect rights of a party but it has to be applied with all its rigour when prescribed by statute. It is further observed that in case a party has acted with negligence, lack of bona fides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It is observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It is further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature. 7.5 In the case of Pundlik Jalam Patil (supra), it is observed by this Court that the court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The Courts help those who are vigilant and “do not slumber over their rights”.
Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and considering the averments in the application for condonation of delay, we are of the opinion that as such no explanation much less a sufficient or a satisfactory explanation had been offered by respondent Nos.1 and 2 herein – assessees before the High Court for condonation of huge delay of 1011 days in preferring the Second Appeal. The High Court is not at all justified in exercising its discretion to condone such a huge delay. The High Court has not exercised the discretion judiciously. The reasoning given by the High Court while condoning huge delay of 1011 days is not germane. Therefore, the High Court has erred in condoning the huge delay of 1011 days in preferring the appeal by respondent Nos.1 and 2 herein – original defendants. Impugned order passed by the High Court is unsustainable both, on law as well as on facts.
In view of the above and for the reasons stated above, the present Appeal is Allowed. The impugned order dated 16.09.2021 passed by the High Court condoning the delay of 1011 days in preferring the Second Appeal by respondent Nos.1 and 2 herein is hereby quashed and set aside. Consequently, Second Appeal No.331 of 2021 preferred by respondent Nos.1 and 2 herein stands dismissed on the ground of delay. The present Appeal is accordingly allowed. However, there shall be no order as to costs.”
I also note that negligence on the part of the servant or agent entrusted with the filing of the appeal cannot be a sufficient cause
ITA.50/SRT/2020/AY.2000-01 Jayesh Chandulal Shah [Seth Jahar v. Pritchard, 4 PLJ 381]. Hence, considering the above facts and reasons the delay in filing the appeal is not condoned and the appeal of the assessee is dismissed.
Since the delay has not been condoned and the appeal of the assessee has been dismissed, therefore I do not adjudicate the various grounds raised by the assessee on merit.
In the result, appeal of the assessee is dismissed.
Order is pronounced on 07/12/2023 in the open court.