SANDEEP KAUR GILL,RAIPUR vs. INCOME TAX OFFICER-3(4), RAIPUR, RAIPUR

The captioned appeals filed by the assessee are directed against the orders passed by the Commissioner of Income-Tax (Appeals), National Faceless Appeal Center (NFAC), Delhi, dated 15.09.2022, which in turn arises from the orders passed by A.O under Sec. 271(1)(c) of the Income-tax Act, 1961 (in short ‘the Act’) dated 29.05.2018 for the assessment year 2014-15 AND u/s. 147 r.w.s.143(3) of the Act dated 23.12.2017 for A.Y.2014-15. As the issues involved in the captioned appeals are inextricably interlinked or in fact interwoven, therefore, the same are being taken up and disposed off by way of a consolidated order.

We shall first take up the appeal filed by the assessee in for assessment year 2014-15 and the order, therein, passed shall mutatis-mutandis apply to the remaining appeal. The assessee has assailed the impugned order on the following grounds of appeal:

Controversy involved in the present appeal lies in a narrow compass i.e. sustainability of the order of the CIT(Appeals) who had sustained the penalty of Rs.3,17,452/- levied u/s. 271(1)(c) of the Act by the A.O.

Shri Sunil Kumar Agrawal, Ld. Authorized Representative (for short ‘AR’) for the assessee at the threshold of hearing of the appeal submitted that the present appeal involves a delay of 44 days. It was submitted by him that the delay in filing of the appeal had occasioned because the assessee had failed to check his E-mail Id where the aforesaid order of the CIT(Appeals) was dropped. The Ld. AR had drawn our attention to an “affidavit” dated 05.01.2023 filed by the assessee explaining the reasons leading to the delay. For the sake of clarity the relevant contents of the “affidavit” is culled out as under:

Per contra, the Ld. Departmental Representative (for short ‘DR’) had objected to the seeking of the condonation of delay in filing of the present appeal by the assessee appellant.

On a careful perusal of the facts leading to the delay in filing of the present appeal, we are unable to persuade ourselves to subscribe to the assessee’s explanation based on which she has sought for condonation of delay therein involved. We, say so, for the reason that the failure on the part of the assessee to check her E-mail account where the order of the CIT(Appeals) was dropped can by no means be held as a justifiable reasons which would go to explain the delay involved in filing of the appeal. Also, the claim of the assessee in her “affidavit” dated 05.01.2023 that she had been running unwell for the last 3-4 months is not only an unsubstantiated claim but also, is not relevant for explaining the impugned delay for the period when the appeal was supposed to be filed i.e. latest by 15.11.2022. As explanation of the assessee regarding the reasons leading to delay in filing of the present appeal is devoid and bereft of any merit, the same, thus, cannot be summarily accepted on the very face of it. Considering the lackadaisical

Alternatively, we find that though the assessee had deposited the appeal fees of Rs.10,000/- on 13.12.2022 but despite being well aware that the filing of the appeal was already delayed, had, however adopted a lackadaisical approach and most casually kept the filing of the said appeal in abeyance for next 15 days and filed the same as per her choice only on 28.12.2022. Based on our aforesaid observations, we are of a strong conviction that the delay in filing of the appeal is not for any bonafide reason but in fact, backed by sheer carelessness on the part of the assessee.

The co-ordinate bench of the Tribunal in the case of M/s. Phoenix Mills Ltd. Vs. Asstt. CIT in for A.Y.1999-2000, dated 23.03.2020, had held that where an application for condonation of delay has been moved bonafide, then, the Court would normally condone the delay, but where the delay has not been explained at all and in fact there is an unexplained and inordinate delay coupled with negligence or sheer carelessness, then, the discretion of the court in such cases would normally tilt against the applicant. Reverting to the facts of the present case, we have already examined the reasons that had led to the inordinate delay, which has not been explained by the assessee to have occasioned due to bonafide reasons. As observed by us hereinabove, as 6 Sandeep Kaur Gill Vs. ITO, Ward-3(4), Raipur & 268/RPR/2022 there was no justifiable reason for the assesee to file the appeal before us after 44 days, therefore, there appears to be no reason to adopt a liberal view and condone the delay therein involved. Also, we may observe at this juncture that the law of limitation has to be construed strictly as it has an effect of vesting on one and taking away the right from the other party. The delay in filing of the appeal cannot be condoned in a mechanical or a routine manner since that would undoubtedly jeopardize the legislative intent behind Section 5 of the Limitation Act.

We may herein observe that the Hon’ble Apex Court in the case of State of West Bengal Vs. Administrator, Howrah 1972 AIR SC 749, had held that the expression “sufficient cause” should receive a liberal construction so as to advance substantial justice, particularly when there is no motive behind the delay. The expression “sufficient cause” will always have relevancy to reasonableness. The action which can be condoned by the court should fall within the realm of normal human conduct or normal conduct of a litigant. However, as observed by us hereinabove, as the assessee appellant in the present case is acting in defiance of law, therefore, there can be no reason to allow her application and condone the substantial delay of 44 days involved in preferring of the captioned appeal.

Also, as observed by the Hon’ble Supreme Court in the case of Ramlal, Motilal and Chotelal Vs. Rewa Coalfields Ltd. AIR (1962) 361 (SC) that seeker of justice must come with clean hands, therefore, now when in the present appeals the assessee appellant had failed to come forth with any good and sufficient reason that would justify condonation of the delay involved in preferring of the captioned appeal, therefore, we decline to condone the delay of 44 days and, thus,

Apropos the reliance placed by the Ld. AR on the judgment of the Hon'ble Apex Court in the case of Collector, Land Acquisition Vs. Mst. Katiji and Others (supra), the same being distinguishable on facts as against those involved in the captioned appeal before us, thus, would not assist her case. The Hon'ble Apex Court, stressing upon considering of a "sufficient cause" by the Courts, while deciding as to whether the delay involved in the filing of the appeal merits to be condoned, had observed that the said term employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice which is the life purpose of existence of the institution of courts. At the same time, the Hon'ble Apex Court had, while observing that the courts should do even-handed justice on merits in preference to the approach that scuttles a decision on merits, had inter alia, held that an appeal or any application may be admitted after the prescribed period if the appellant or applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. For the sake of clarity, the observations of the Hon'ble Apex Court are culled out as follows:

In so far the judgment of the Hon’ble Apex Court in the case of Senior Bhosale Estate (HUF) Vs. Assistant Commissioner of Income Tax (supra) as had been relied upon by the Ld. AR to support his claim that the delay involved in filing of the present appeal merits to be condoned, we are of the view that as the same is distinguishable on facts, therefore, the same would not carry the case of the assessee any further. We, say so, for the reason that in the aforesaid case of Senior Bhosale Estate (HUF) Vs. Assistant Commissioner of Income Tax (supra), the assessee admittedly had no knowledge about passing of the order dated 29.12.2003 by the Tribunal until they were confronted with the auction notices in June, 2008 issued by the competent authority. Unlike the facts involved in the aforementioned case, the assessee before us as on the date on which she had 10 Sandeep Kaur Gill Vs. ITO, Ward-3(4), Raipur & 268/RPR/2022 deposited challan of Rs.10,000/- towards appeal fees on 13.12.2022 was not only aware about the order of the CIT(A), dated 15.09.2022 but was till vigilant of the fact that the appeal against the said order was already delayed by 29 days. Instead of expediating the filing of the appeal, which was already delayed, we find that the assessee had continued with her lackadaisical approach and filed the appeal after a further lapse of 15 days i.e. on 28.12.2022. Carelessness on the part of the assessee who despite being well aware that the appeal against the impugned order passed by the CIT(Appeals) was already delayed, had further added to the aforesaid delay for which, no explanation has been given before us, which, thus, proves to the hilt that the delay so involved had occasioned due to negligence or sheer carelessness on her part. Accordingly, as the facts involved in the case before us are distinguishable as against those which were there before the Hon’ble Apex Court in the case of Senior Bhosale Estate (HUF) Vs. Assistant Commissioner of Income Tax (supra), therefore, the same would not assist the case of the assessee.

In the result, the appeal of the assessee in for A.Y. 2014-15 is dismissed in terms of our aforesaid observations. A.Y.2014-15 15. In the captioned appeal, the assessee has assailed the impugned order on the following grounds of appeal:

Controversy involved in the present appeal lies in a narrow compass, i.e. sustainability of the order of the CIT(Appeals) who had upheld the addition/disallowance of Rs.10,57,752/- on account of the unexplained cash credit made by the A.O u/s. 68 of the Act.

Shri Sunil Kumar Agrawal, Ld. Authorized Representative (for short ‘AR’) at the threshold of hearing of the appeal submitted that the present appeal involves a delay of 44 days. It was submitted by him that the delay in filing of the appeal had occasioned because the assessee had failed to check her E-mail account where the aforesaid order of the CIT(Appeals) was dropped. The Ld. AR had drawn our attention to an “affidavit” dated 05.01.2023 filed by the assessee explaining the reasons leading to the delay. For the sake of clarity the relevant contents of the “affidavit” is culled out as under:

As the facts pertaining to the delay involved in the captioned appeal filed by the assessee remains the same as were there before us in the aforementioned for assessment year 2014-15, therefore, our order therein passed while disposing off the said appeal shall apply mutatis-mutandis for disposing off the captioned appeal in A.Y. 2014-15. In this case also, we decline to condone the delay of 44 days and, thus, without

In the result, the appeal of the assessee in A.Y. 2014-15 is dismissed in terms of our aforesaid observations.

Resultantly, both the appeals of the assessee are dismissed in terms of our aforesaid observations.