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Income Tax Appellate Tribunal, “C” BENCH: KOLKATA
Before: Shri Mahavir Singh, JM & Shri M. Balaganesh, AM]
ORDER Per Shri Mahavir Singh, JM:
This appeal by revenue is arising out of order of CIT(A)-VI, Kolkata in Appeal No. 287/CIT(A)-VI/Cir-5/2011-12/Kol dated 11.12.2012. Assessment for AY 2006-07 was framed by JCIT (OSD), Circle-5, Kolkata u/s. 144/147 of the Income-tax Act, 1961 (hereinafter referred to as “the Act”) vide his order dated 30.12.2011.
We have heard this matter ex parte because none is present for and on behalf of the revenue. Revenue has filed a petition for adjournment asking for adjournment in eight matters. The reason given by revenue in its petition dated 02.03.2016. Ld. Counsel for the assessee vehemently opposed the adjournment petition stating the reasons that the appeal is pending since 2013 and revenue wants to adjourn the matter on frivolous ground. In view of this fact, we proceed to hear the matter ex parte for the reason that the revenue is seeking adjournment on frivolous ground and this is a regular feature. Hence, without giving adjournment, as the appeal is pending since 2013, we proceeded to decide it ex parte.
At the outset, it is noticed that the appeal is delayed by 63 days and the reasons stated in the affidavit read as under: “I, Shri Ajay Kumar Keshari, son of Dr. Banshropan Pd. Keshari, am working as Deputy Commissioner of Income Tax, circle-5, Kolkata, P-7, Chowringhee Square, Kolkata- 700069, solemnly affirm that the last date for filing second appeal against the Appeal No. 941/CIT(A)-VI/Cir-5/2011-12/Kol dated 11.12.2012 in the case of M/s. Hindustan Copper Limited for the AY 2006-07 was on 15.03.2013. But it could not be filed for following reasons:
16/03/2013 & 17/03/2013 Saturday & Sunday 18/03/2013 to 22/03/2013 AO. busy with T.B. case.
2 Hindusthan Copper Ltd. AY 2006-07 23/03/2013 & 24/03/2013 Saturday & Sunday 25/03/2013 & 26/03/2013 Preparation of ASR 27/03/2013 Holiday 28/03/2013 AO. busy with T.B case. 29/03/2013 Holiday 30/03/2013 & 31/03/2013 Saturday & Sunday 01/04/2013 to 05/04/2013 Assessment record gathered. 06/04/2013 & 07/04/2013 Saturday & Sunday 08/04/2013 to 12/04/2013 Preparation of papers for sending ASR 13/04/2013 & 14/04/2013 Saturday & Sunday 15/04/2013 Holiday 16/04/2013 to 19/04/2013 Preparation of papers for sending ASR 20/04/2013 & 21/04/2013 Saturday & Sunday 22/04/2013 ASR sent to CIT, KOL-II, KOL 23/04/2013 Approval for filing 2nd appeal awaited. 24/04/2013 Holiday 25/04/2013 & 26/04/2013 Approval for filing 2na appeal awaited. 27/04/2013 & 28/04/2013 Saturday & Sunday 29/04/2013 to 02/05/2013 Approval for filing 2nd appeal awaited. 03/05/2013 Approval for filing 2na appeal received. 04/05/2013 & 05/05/2013 Saturday & Sunday 06/05/2013 to 10/05/2013 Papers for filing 2nd appeal prepared 11/05/2013 & 12/05/2013 Saturday & Sunday 13/05/2013 to 15/05/2013 Papers for filing 2nd appeal prepared 16/05/2013 Affidavit for condonation of delay in filing 2nd appeal prepared. Due to huge pendency of time barring cases, delay occurred in sending papers for filing of second appeal. That the delay is not deliberate and the respondent does not gain in any manner by delay committed. That there was sufficient cause for the delay and it is prayed that the same may be condoned.”
The revenue has stated that the reasons stated in the affidavit appear to be genuine and delay has occurred due to pendency of cases before the AO. According to the revenue, the delay is not at all deliberate and it is not going to gain in any manner by committing delay, which was inadvertent.
We find that the revenue could not file explanation for delay and could not explain whether bona fide efforts were made or not. Hence, we are unable to accept the unusual explanation that the file was kept pending for several months due to considerable degree of procedural red tape in the process. In similar circumstances, Hon’ble Supreme Court in the case of Office of the Postmaster Vs. Living Media India ltd. in Civil Appeal No. 2474-2475 of 2012 (arising out of SLP(c) Nos. 7595-7596 of 2011 dated 24.02.2012, wherein it is held as under:
3 Hindusthan Copper Ltd. AY 2006-07 “13) In our view, 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 there 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 anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay.” In similar circumstances we have already refused to condone the delay of filing appeal of revenue in ITA No. 1192/Kol/2012 for AY 2008-09 in the case of DCIT Vs. M/s. The Orissa Minerals Development Co. Ltd. In such circumstances, we refuse to condone the delay and hence the appeal of revenue is dismissed as unadmitted on the ground of delay.
In the result, the appeal of revenue is dismissed.