ANKIT KALASH,RAIPUR vs. INCOME TAX OFFICER, WARD-3(2), RAIPUR, RAIPUR

After submissions of the aforesaid request by the assessee, Ld. AR, further submitted that the condonation of delay may be allowed in view of the judgment in the case of Senior Bhosale Estate (HUF) vs. Assistant Commissioner of Income Tax is reported in (2019) 419 ITR 732(SC), wherein Hon’ble Apex Court has held that:

Carrying the arguments further, to support the contentions raised pertaining to explaining the sufficient cause for the delay, Ld. AR relied upon the judgment in the case of Collector, Land Acquisition vs. Mst. Katiji & Ors. reported in (1987) 167 ITR 471(SC), wherein Hon’ble Apex Court has held as under:

Ordinarily, a litigant does not stand to benefit by lodging an appeal late.

Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense and pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of a non- deliberate delay.

There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk.

Ld. Sr. DR on the other hand has objected on condonation of inordinate delay in filing of the appeal beyond the stipulated time provided by the statute. The delay should be considered as negligence on the part of assessee which shows lackadaisical conduct of the assessee, therefore, such unreasonable delay without any cogent cause should not be condoned and the appeal of the assessee should be treated as non- maintainable on this count itself.

We have considered the rival submissions by the parties and the case laws relied upon by the Ld. AR. In the present case the order by the Ld. CIT(A), NFAC passed on 19.07.2022, and the same was delivered on the e-mail ID of the assessee on the same date i.e.,19.07.2022, however, as per submission in the form of application for condonation a/w affidavit by the assessee explaining the reason for such delay in filing of the appeal after 102 days from the prescribed date of filing of the appeal before the tribunal, that the personal e-mail ID of the assessee which was updated in the IT Portal was not generally used by him, and therefore, the order passed by Ld. CIT(A) was not accessed by the assessee in time and, thus, the delay was occurred.

Adverting to the judgments relied upon by the assessee in the case of Collector, Land Acquisition vs. Mst. Katiji & Ors. (supra), Hon’ble Apex Court has held that substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred. It is further held that the delay should not be occasioned deliberately or on account of culpable negligence or on account of mala fide. A litigant does not stand to the benefit by resorting to delay. Hon’ble Apex Court has categorically mentioned that there should be sufficient cause for the delay and the court should be satisfied that sufficient cause exists for the delay, the delay can be condoned. In the other case relied upon by the Ld. AR, in the case of Sr. Bhosale Estate (HUF) vs. Assistant Commissioner of Income Tax (supra), the same cannot come to rescue the contentions of the assessee that the assessee has not received the impugned order in time, since, the decision of the Hon’ble Apex Court was pertaining to non-receipt / no knowledge about passing of the order dated 29.12.2003, which belongs to an era when there was a system of manual service of the orders, which cannot be considered at par with present case, wherein proceedings are completed under the regime through e- portals using the digital / electronic mode. The assessee is expected to be vigilant enough to check his e-mail ID updated on the Income Tax portal on regular intervals, particularly when some proceedings are pending in his case. The reasons offered for delay that the assessee is generally not using the e-mail ID, which was updated on the IT portal and, therefore, has not accessed the said ID for more than 100 days, and therefore, he could not receive the order on time is beyond comprehension thus, cannot be accredited. The reason explained fails to prove that there was sufficient cause by which the assessee was prevented, thus, led to delay in filing of the appeal. Notably, the appeal was filed by the tribunal on 28.12.2022, where as the challan for submitting the appeal fee was paid on 21.12.2022, again shows the apathetic approach, proves that the assessee is not attentive enough towards his legal obligations, therefore, the benefit of condonation of delay cannot be granted to such case. Consequently, the appeal of the assessee is held as non-maintainable on account of delay in filing of the appeal.

In the result, the appeal of the assessee is dismissed.