KOLANGATH MUHAMMED ASLAM,TANUR vs. ITO WARD 1 & TPS, TIRUR
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Income Tax Appellate Tribunal, COCHIN BENCH, COCHIN
Before: Shri Sanjay Arora & Shri Manomohan Das
IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN Before Shri Sanjay Arora, Accountant Member and Shri Manomohan Das, Judicial Member
ITA No. 1005/Coch/2022 (Assessment Year : 2016-17)
Kolangath Muhammed Aslam The Income Tax Officer Kolangath House Ward - 1 & TPS, Tirur Pariyapuram P.O. vs. Tanur 676302 [PAN:CCYPK9063K] (Appellant) (Respondent)
Appellant by: Shri Hamid Hussain, CA Respondent by: Smt. J.M. Jamuna Devi, Sr. D.R.
Date of Hearing: 13.09.2023 Date of Pronouncement: 11.12.2023
O R D E R Per: Sanjay Arora, AM This is an Appeal by Assessee agitating the dismissal of his appeal contesting his assessment under section 143(3) of the Income Tax Act, 1961 (‘the Act’) dated 26.10.2018 for Assessment Year (AY) 2016-17 by the Commissioner of Income Tax (Appeals), NFAC (CIT(A), vide it order dated 06.04.2022.
At the outset, it was observed by the Bench that the appeal, filed on 23.12.2022, is delayed by 201 days; the impugned order being admittedly served on 06.04.2022. The codonation petition, which is in the form of a sworn affidavit dated 19.12.2022 by the assessee accompanies the same. The reason stated therein is the surgery of his mother for Internal Heamorrhoids in July, 2022, after which she was on bed rest for three months, with he being the only son attending her. On enquiry by the Bench that the limitation period, being up to 05.06.2022, had in fact expired much prior to her admission for surgery on 10.07.2022, it was explained by Shri
ITA No. 1005/Coch/2022 (AY : 2016-17) Kolangath Muhammed Aslam v. ITO Hussain, the learned counsel for the assessee, that she had been under ailment since January.
3.1 The assessee was duly represented by his counsel before the first appellate authority, with submissions being filed regularly, the latest of which were on 30.03.2022, which finds reproduction in the impugned order, served on 06.4.2022. Even as one can understand a dislocation for a few weeks, or even a couple of months, due to illness of his mother, the nearly seven-month delay cannot be ascribed wholly to his mother’s illness, even as we share full sympathy with the assessee in the matter. The assessee’s mother, who would be both before and after the surgery on 11.07.2022, on bed rest, would be attended by family members, with the assessee, aged 48 years, with business responsibilities, attending to his business and other duties. All he was required to do was to assign the work of filing the appeal to his counsel, who is the same as before the Revenue authorities and, thus, conversant with the case. As we infer, the order by first appellate authority had been accepted by the assessee, and it was only later that he decided to file the appeal in consultation with his counsel. Under the circumstances, in our view, the ingredients necessary for condoning the delay, which could only be the result of a positive, affirmative action, i.e., (a) proof of absence of negligence, and (b) proof of satisfactory level of diligence, are found missing in the instant case.
3.2 Condonation is essentially a matter of judicial discretion, to be exercised on the anvil of due diligence and bona fides in prosecuting it’s affairs being shown by the applicant. Case law in the matter is legion. In Municipal Corporation of Delhi vs. International Security and Intelligence Agency Ltd. [2004] 3 SCC 250, it is clarified that the law of limitation operates with all its rigour, and equitable considerations are out of place in applying the same. In P.K. Ramachandran vs. State of Kerala[1997] 7 2
ITA No. 1005/Coch/2022 (AY : 2016-17) Kolangath Muhammed Aslam v. ITO SCC 556, the Apex Court again clarifies that the courts have no power to extend the period of limitation on equitable grounds, even as it may harshly affect a particular party. The Hon’ble Court in CIT vs. Ram Mohan Kabra [2002] 257 ITR 773 (P&H) holding, on a review of judicial precedents, including Ramachandran (supra), that delay could be condoned only on good & sufficient reasons, represents the clear law in the matter. In G. Ramegowda, Major vs. Special Land Acquisition, 1988 AIR (SC) 897, it was held that deliberate or gross inaction or lack of bona fides on the part of the party or it’s counsel is no reason why the opposite side should be exposed to a time barred appeal.We may, to further embellish this order and fortify the law point being emphasized, cite some further decisions, viz. CIT vs. Maharashtra State Government Employee Confederation (Appeal No. CC3159-3160 of 2009, 23.3.2009 (SC)); Ramlal, Madanlal & Chottelat v. Rewa Coalfields Ltd. AIR 1962 SC 361; H.H. Brij Inder Singh vs. Kanshi Ram, AIR 1917-PC-156; Baroda Rayon Copn. Ltd. v. CST, 87 STC 266 (Guj);M. Krishna Rao D. Phalke vs. Trimbak, AIR 1938 Nag. 156; Baldeo Lal Roy vs. State of Bihar [1960] 11 STC 104 (Pat); Mrs. Anita Chadha vs. CIT[2010] 189 Taxman 300 (P&H), to cite some.
3.3 The requirement of sufficient cause u/s. 5 of the Limitation Act, 1963, is, in our view, not satisfied in the facts and circumstances of the case, for us to grant condonation. The appeal is accordingly not admitted.
In the result, the assessee’s appeal is dismissed as not maintainable. Order pronounced on December 11, 2023 under Rule 34 of The Income Tax (Appellate Tribunal) Rules, 1963 Sd/- Sd/- (Manomohan Das) (Sanjay Arora) Judicial Member Accountant Member Cochin, Dated: December 11, 2023
ITA No. 1005/Coch/2022 (AY : 2016-17) Kolangath Muhammed Aslam v. ITO Copy to: 1. The Appellant 2. The Respondent 3. The Pr. CIT concerned 4. The Sr. DR, ITAT, Cochin 5. Guard File By Order
Assistant Registrar n.p. ITAT, Cochin
