SARITA JAIN,JAIPUR vs. ITO, WD-1(1), JAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”A” JAIPUR Jh lanhi xkslkbZ] U;kf;d lnL; ,oa Jh jkBkSM+ deys'k t;arHkkbZ] ys[kk lnL; ds le{k BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA No. 403/JP/2022 fu/kZkj.k o"kZ@Assessment Years : 2014-15 cuke Sarita Jain ITO Vs. 150, Haldiya House, Haldiyon Ka Ward 1(1), Jaipur Rasta, Johri Bazar, Jaipur NCRB Building Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ABLPJ 6451 G vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Sh. Ashok Kanodia (CA) jktLo dh vksj ls@ Revenue by : Sh. James Kurian (CIT) lquokbZ dh rkjh[k@ Date of Hearing : 16/03/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 22/03/2023 vkns'k@ ORDER

PER: RATHOD KAMLESH JAYANTBHAI, AM

This appeal is filed by assessee and is arising out of the order of the National Faceless Appeal Centre, Delhi dated 06/07/2022 [here in after (NFAC)] for assessment year 2014-15 which in turn arise from the order dated 30.12.2016 passed under section 143(3) of the Income Tax Act, by the ITO, Ward 1 (1), Jaipur.

2 ITA No. 403/JP/2022 Sarita Jain vs. ITO informed about the defect memo dated 14.11.2022 which was served on

15.11.2022. The subsequent event is tabulated here in below

Sr No. Event Response 1 After intimation of defect the hearing The ld. AR of the assessee submitted of the case fixed was given dated an adjournment on account of his ill 14.11.2022 fixing the hearing of the health reasons. case on 05.12.2022. 2 The matter was posted on Cyclostyle adjournment application 21.12.2022. on the health ground of the ld. AR. There is no supporting documents to substance the reasons for the adjournment. Even none one appeared to substantiate for the reason placed for an adjournment application. 3. The matter was posted on Cyclostyle adjournment application 18.01.2023. on the health ground of the ld. AR. There is no supporting documents to substance the reasons for the adjournment. 4. The matter was posted on Cyclostyle adjournment application 23.02.2023. on the health ground of the ld. AR. This time application was supported with the certificate of Chandra Polyclinic prescribing 7 days rest. 5. The matter was posted on Cyclostyle adjournment application 14.03.2023. on the health ground of the ld. AR. This type application is supported by a certificate of Dr. J. K. Chuhan Ms. (eye) prescribing 7 days rest. The bench expressed strict view of the frequent adjournment application to the person appeared as proxy Shri Manoj Gupta. As per the request of the proxy the matter was adjourned for 2 days as his senior will be able to attend. The bench informed about the delay in filling this appeal to the proxy appeared. 6. The matter was posted on Despite the specific defect memo 16.03.2023. given by the registry the ld. AR of the assessee filed the simple affidavit dated 14.12.2022.

3 ITA No. 403/JP/2022 Sarita Jain vs. ITO 3. All the sequence of event expressly clear that the neither the

assessee nor the ld. AR of the assessee is serious about the statutory right

and this right has also responsibility attached to it. The content of the

affidavit dated 14.12.2022 filed by the assessee reads as under:

4 ITA No. 403/JP/2022 Sarita Jain vs. ITO 4. On careful perusal of the affidavit we found that the assessee in her

averment at serial number 3 stated that the medical certificate is enclosed.

She has also contended due to technical issues on the portal it could not

possible for her to file the appeal in due date. On careful consideration of

the attachment of submitted by the assessee the bench observed that the

assessee has not submitted any medical certificate and proof of any

technical difficulty by taking the screen shot. The only document attached

was physiotherapy center attendance card, receipt of the money paid to

Wellbeing Physiotherapy & Rehabilitation Center and prescription of Dr.

Pankaj Jain. Thus, the affidavit submitted by her has no evidence to

support the contention so raised. This shows that the assessee and his ld.

AR both are not serious in taking up the appeal and their attitude are

sluggish. Even though the bench has given sufficient opportunity in the

matter but neither the assessee nor the ld. AR of the assessee is serious to

correct the averments so made before us.

liberally construed but not so liberally that without any justification or cause,

an accrued right in favour of the non-applicant would be taken away in

most casual manner. Another aspect of the case is that the revenue and/or

5 ITA No. 403/JP/2022 Sarita Jain vs. ITO even the assessees are expected to act with care and expeditiousness and

not to let things lie unprocessed for months together. Of course, the

limitation for the purpose of filing of an appeal under section 253(3)

commences from the date the copy of the order is received by the parties.

However, the knowledge of the proceedings and the judgment and its

contents are known to the parties the moment the order of the ld. CIT(A) is

received by the party. Thus, the parties to the proceedings are well-aware

of the pronouncement of the decision as well as the contents thereof and

whether the appeal of the assessee/department has been accepted or

rejected partly or completely accepted or rejected. The law of limitation is

normally to be construed strictly as it has the effect of vesting for one and

taking away right from the other. To condone the delays in a mechanical or

a routine manner may amount to jeopardizing the legislative intent behind

section 5.

purpose, viz., to prevent the taking away from one what he has for long

been permitted to consider his own and on the faith of which he plans his

life, habits and expenses. Long dormant claims are often more of cruelty

than of justice in them. This principle is more based on public policy. Its aim

6 ITA No. 403/JP/2022 Sarita Jain vs. ITO being to secure the quietness of the community and to prevent oppression.

These rules have been viewed by some as an infamous power created by

positive law to decrease litigation and encourage dishonest defences. This

may not be wholly true but still the limitation vests a definite right in a party

after a lapse of period prescribed under law. It interposes a statutory bar

after a certain period giving quietus to the rights arising from a judgment

which is sought to be impugned. In other words, the law of limitation is thus

founded on public policy. It is enshrined in the maxim ‘interest reipublicae

utsitjinis litium’ (it is for the general welfare that a period be part to

litigation). The very scheme of proper administration of justice pre-

supposes expediency in disposal of cases and avoidance of frivolous

litigation. Where the parties chose to sleep over their rights for prolonged

periods without any just cause, can hardly claim equity in justice particularly

faced with the statutory provisions of section 5 of the Act.

institution of proceedings, the purpose is to intimate people that after a

lapse of certain time from a certain event, a proceeding will not be

entertained where a strict grammatical construction is normally the safe

guide. Law is not an exercise in linguistic discipline but the substance of

7 ITA No. 403/JP/2022 Sarita Jain vs. ITO legislative intention can also not be frustrated merely by uncalled for equity

or sympathy. In the case of Banarasi Dev v. ITO AIR 1964 SC 1742, the

Supreme Court clearly stated the principle that the provisions introduced to

open up liability which had become barred by lapse of time will be subject

to the rule of strict construction. This principle has prevailed may be with

some variation relatable to the sufficiency of cause shown by the parties.

The essence of the above enunciated principle, thus, reflects a simple but

effective mandate that a provision must be construed on its plain and

simple language. The provision of limitation should be construed strictly but

at best its application could be liberalised where actual sufficient cause in

its true sense is shown by an applicant who has acted bona fidely and with

due care and caution. An interpretation or application of the statutory

provisions which would frustrate its very object necessarily has to be

avoided.

(131) DLT 360, wherein somewhat similar circumstances as in the present

case, the Court discussed the precedent on law of limitation at some length

the relevant observation is reiterated here in below:

"7. The above are the reasons stated for condoning the delay. No reference of any office or date has been given in the application. The application lacks basic details which would be essential for the court to consider a request for condonation of

8 ITA No. 403/JP/2022 Sarita Jain vs. ITO delay. It is true that Union of India unlike a normal litigant may not be called upon to explain each day’s delay by giving a reasonable or plausible explanation but the entire delay has to be explained at least in a composite manner so as to enable the court to exercise the discretion in favour of the applicant, if the application satisfies the ingredients enunciated by different judicial pronouncements.

present case hardly gives any reason or cause much less a reasonable

explanation for condoning the delay. At this stage, one may refer to the

judgment of the Supreme Court in the case of Ramlal v. Rewa Coalfields

Ltd. AIR 1962 SC 361, wherein the Court held as under :

‘In construing section 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 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 if sufficient cause for excusing delay is shown, discretion is given to the court to condone delay and admit the appeal.

has been shown the assessee is not serious to the condonation petition for

the delay in question as a matter of right pleading the same without

sufficient cause and evidence to support the contentions so raised in the

affidavit filed by the assessee. The proof of a sufficient cause is a condition

precedent for the exercise of the discretionary jurisdiction vested in the

court by section 5.

9 ITA No. 403/JP/2022 Sarita Jain vs. ITO 11. It is clear from the above facts that the assessee in the present case

expressed most negligent and irresponsible attitude even though the

sufficient time was given to cure the mistake and the bench feels that the

assessee is not serious in pursuing his remedy. In the present case, the

appeal barred by 67 days. The delay in filing has not been explained. It is

unfortunate, but is true, that present case discloses the extent to which a

petitioner can be irresponsible and negligent of his own rights. The

provisions of Limitation Act cannot be so liberally construed so as to

frustrate the very purpose of the provisions of the Limitation Act. In this

regard reference can be made to a judgment of the Hon’ble Supreme Court

of India in the case of P.K. Ramachandran v. State of Kerala JT 1997 (8)

SC 189, where the Hon’ble Court held as under :—

‘Law of limitation may hardly effect 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. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the miscellaneous first appeal shall stand dismissed as barred by time. No costs.’

that the assessee failed to establish the delay in bringing this appeal in

time. Considering the lethargic and causal approach of the matter the

10 ITA No. 403/JP/2022 Sarita Jain vs. ITO Bench does not find appropriate reason with supporting evidence to

condone the delay and thereby does not impel the Bench to consider the

same.

In the result, appeal of the assessee is dismissed.

Order pronounced in the open court on 22/03/2023. Sd/- Sd/- ¼ lanhi xkslkbZ ½ ¼ jkBkSM deys’k t;arHkkbZ ½ (Sandeep Gosain) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 22/03/2023 *Ganesh Kumar आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. The Appellant- Sarita Jain, Jaipur 2. izR;FkhZ@ The Respondent- ITO Ward 1(1), Jaipur vk;dj vk;qDr@ The ld CIT 3. vk;dj vk;qDr¼vihy½@The ld CIT(A) 4. 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 6. xkMZ QkbZy@ Guard File (ITA No. 403/JP/2022) vkns'kkuqlkj@ By order,

सहायक पंजीकार@Aेेज. त्महपेजतंत