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Income Tax Appellate Tribunal, RAIPUR BENCH: RAIPUR
Before: SHRI RAVISH SOOD & SHRI ARUN KHODPIA
आदेश / O R D E R
PER BENCH:
The above captioned ‘7’ appeals were filed by two different assessees, Smt. Fazil Pradhan & Mr. Javed Ali Pradhan. These appeals were directed against the order of the Commissioner of Income Tax (Appeals)-1, Raipur, as per the following details: Date of order of Name of the Appeal No. Assessment Year the Ld.CIT(A) assessee ITA No.294/RPR/2016 24.02.2015 2010-11 Smt.Fazila Pradhan ITA No.295/RPR/2016 01.04.2016 2011-12 ITA No.297/RPR/2016 23.01.2015 2001-02 ITA No.298/RPR/2016 23.01.2015 2002-03 ITA No.299/RPR/2016 23.01.2015 2003-04 Mr.Javed Ali Pradhan ITA No.300/RPR/2016 23.01.2015 2005-06 ITA No.301/RPR/2016 23.01.2015 2006-07 2. At the outset, it is observed that all these seven appeals were filed with certain delay, for which, the Ld.AR of the assessee was directed to explain the reasons for delay, so that the admissibility of these appeals could be decided according to the provisions of sec.253(3) & (5) of the Income Tax Act, 1961 (in short “the Act”), which read as under:
(3) Every appeal under sub-section (1) or sub-section (2) shall be filed within sixty days of the date on which the order sought to be appealed against is communicated to the assessee or to the 73a[Principal Commissioner or] Commissioner, as the case may be : [Provided that in respect of any appeal under clause (b) of sub-section (1), this sub-section shall have effect as if for the words "sixty days", the words "thirty days" had been substituted.] (5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section (3) or sub- section (4), if it is satisfied that there was sufficient cause for not presenting it within that period.
ITA Nos.294-295, 297-301/RPR/2016 :: 3 :: 3. With reference to the aforesaid provisions of sec.253 of the Act, wherein, the Tribunal is empowered to condone the delay, if it is satisfied that there was sufficient cause for not presenting the appeal within the stipulated time limitation. On perusal of the affidavits of the assessee for along with the aforesaid appeals for condonation of delay, it was noticed that all these appeals were substantially delayed, having mention of similar cause for delay in order to justify that the delay was on account of substantial reasons beyond the control of the assessee. The affidavits of the assessee having description of such cause, are tabulated as under:
No. Reasons explained in the Name of the of Affidavit by the assessee Sl.No. Appeal No. AY assessee days delay ITA 2010- 475 1 No.294/RPR/2016 11 Smt.Fazil ITA 2011- Pradhan 46 2 No.295/RPR/2016 12 ITA 2001- 545 3 Mistake of counsel who had No.297/RPR/2016 02 given incorrect advice to the ITA 2002- 545 4 asseseee, all seven appeals are No.298/RPR/2016 03 filed before the Tribunal ITA 2003- Mr.Javed Ali 545 5 belatedly. No.299/RPR/2016 04 Pradhan ITA 2005- 545 6 No.300/RPR/2016 06 ITA 2006- 545 7 No.301/RPR/2016 07
The reason for delay explained by the Ld.AR of the assessee stating that the delay was on account of ill advice by the earlier counsel of the assessee, therefore the delay may be condoned. In support of this contention Ld AR has relied upon the judgment of the Hon’ble Supreme
ITA Nos.294-295, 297-301/RPR/2016 :: 4 :: Court in the case of Concord of India Insurance Co Ltd v. Nirmala Devi & Ors. reported in 1979 AIR 1666, 1979 SCR (3) 694, wherein, the Hon’ble Supreme Court has held as under:
HELD: A company relies on its Legal Adviser and the Manager's expertise is in company management and not in law. There is no particular reason why when a company or other person retains a lawyer to advise it or him on legal affairs reliance should not be placed on such counsel. Of course, if there is gross delay too patent even for layman or if there is in comprehensible indifference the shield of legal opinion may still be vulnerable. If legal Adviser's opinions are to be subjected by company managers to further legal scrutiny of their own, an impossible situation may arise. With such submissions, the Ld.AR of the assessee requested that since, the delay was on account of mistake on the part of earlier Counsels, who has advised the assessee not to file the appeals before the ITAT. Therefore, the assessee should not be punished for the same, it makes sufficient cause for the assessee who had filed appeals before the ITAT, immediately when he was advised by the subsequent Counsel that by this available remedy, he may get justice from ITAT, by filing appeals before the ITAT. It was thus the prayer of the Ld AR that the assessee may please be granted the relief of admission of these appeals for which assessee was not to be treated at default when he/she was dependent on the counsel who had not extended a correct advice to the assessee.
Per contra, the Ld. Sr. DR strongly opposed the contentions of the assessee with regard to the delay in filing of appeals. The Ld. Sr. DR submitted that the delay in all these appeals were inordinate delay, and therefore, having no justifiable reasons for delay, the same should be dismissed on account of condonation of delay itself. It was also the submission of the Ld. Sr. DR that negligence on the part of the assessee is
ITA Nos.294-295, 297-301/RPR/2016 :: 5 :: apparent having not supported with proper evidence that he was misled by the Counsel, such a plea of the assessee should not be accepted on account of inadvertence of the laws cannot be an excuse for noncompliance of the law. It was, therefore, Ld Sr. DR strongly requested that in the facts and circumstances of the present appeals, condonation of delay shall not be permitted, and appeals filed by the assessee should be dismissed on this count itself.
We have heard both the parties, perused the materials available on record and gone through orders of the authorities below. Without doubt, substantial delay was observed in all the aforesaid appeals, for which, explanation was offered by the assessee. However, the explanations advanced by the assessee were not found justifiable, since the reasons assigned by the assessee towards the delay happened in filing of the appeals were not enough to establish that the assessees were prevented by sufficient cause in filing of the aforesaid appeals. It was the settled principle of law that the burden of showing the delay is on the assessees to show that there was sufficient cause for the delay, in a judgment by the Hon’ble Apex Court in the case of Suranjan v. Ashok Kumar FA No.1005/2019 decided on 15.11.2020, it was observed that “party who has not acted diligently or remains inactive is not entitled for condonation of delay”. The Hon’ble Supreme Court in the case of R.B. Ramlingam vs R.B.Bhvaneswari I (2009) CLT 188 (SC), has described the test for
ITA Nos.294-295, 297-301/RPR/2016 :: 6 :: determining whether the petition has acted with due diligence or not. The Hon’ble Supreme Court has held as under:
“We hold that in each and every case the Court has to examine whether delay in filing the special leave petition stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition”. It is further observed that condonation of delay is not a matter of right and the assessees has to set out the case showing sufficient reason which prevented them to file before the Court/Commission within the prescribed period of limitation.
In the present matter, the assessee’s main contention behind the delay was that he was ill-advised by the Counsels and by the time, he engaged new Counsel and got the correct advice to file the appeal, the time of limitation was already surpassed. This contention of the assessee cannot be acceded to for the reason that the assessees were unable to substantiate its contention by way of producing or submitting any information like who was the earlier Counsel, copy of any written opinion, on whose opinion, assessees have not filed the appeals in time and also no material supporting evidence could be placed on record in support of this contentions of the assessee. Therefore, in our considered opinion, there was no sufficient cause, whereby, the assessee was prevented to file the appeals in time, it was only the assessee who has not acted diligently or remain inactive. As, we are not satisfied with the reasons unsupported with any cogent evidence by the assessees, in all the aforesaid appeals, condonation of delay cannot be granted. With regard to the assessee’s contention that their arguments pertaining to delay in filing of the appeals is covered by the order of the
ITA Nos.294-295, 297-301/RPR/2016 :: 7 :: Hon’ble Apex Court in the case of Concord of India Insurance Co Ltd v. Nirmala Devi & Ors. (supra), is not acceptable and cannot support the contentions of the assessee so far as the facts of the cases, in which the Hon’ble Supreme Court has observed that the condonation of delay on the basis of negligence of Counsel, which misleads litigant into delayed pursuit of remedy, such contention in the present cases cannot support in rescue of the cases of the assessees, because in present cases the assesseed were unable to bring on record anything which brings the case of the assessee within the ambit ratio of law laid by the Hon’ble Supreme Court in the case of Concord of India Insurance Co Ltd v. Nirmala Devi & Ors. (supra).
Our observation is further fortified in terms of the observations of ITAT Raipur ‘SMC’ Bench in the case of Shyam Sundar Agarwal v. ITO in ITA Nos.170, 171 & 172/RPR/2022 dated 18.01.2023, wherein, it has been held as under:
On a careful perusal of the orders of the lower authorities and the material available on record, I find that the assessee has not been able to come forth with any justifiable reason leading to the substantial delay of 1563 days in filing of the captioned appeals. Be that as it may, considering the fact that the assessee had as a matter of a consistent practice without any justifiable reason delayed preferring of the present appeals, it can safely be concluded that he is habitually adopting a lackadaisical approach before the appellate authorities. Apart from that, I find that the assessee had failed to participate in the assessment proceedings for A.Y.2007-08 and A.Y.2008-09, due to which the A.O was constrained to frame the respective assessments vide his orders passed u/ss.144/147 of the Act. Considering the totality of the facts and circumstances under consideration, I am of the considered view that as there is an inordinate delay in filing of the captioned appeals, for which the assessee had failed to come forth with any justifiable reason, therefore, as stated by the Ld. DR and, rightly so, the same does not merit to be condoned. The assessee has not given any genuine reason for the delay in filing of the captioned appeals either in his application seeking condonation of delay and the affidavits filed before me or in the course of hearing of the appeals. All that the assessee had tried to canvass before me was that the delay in filing of the present appeal was attributable to his Chartered Accountant, viz. Shri Shailesh Agrawal who had failed to properly guide him as regards filing of the appeals before the Tribunal. I find no substance in the claim of the assessee that the delay involved in filing of the present appeals was due to bonafide reasons, and the same does not smack of any lackadaisical conduct on his part. In the totality of the facts leading to the delay in filing of the present appeals r.w the conduct of the assessee appellant before the lower authorities, I would mince
ITA Nos.294-295, 297-301/RPR/2016
:: 8 :: no words in observing that the same does not merit acceptance. In fact, if I condone the inordinate delay involved in the present cases where the assessee had consistently delayed filing of appeals even before the CIT(Appeals), and also not participated in the assessment proceedings, then, it would send a wrong message and would lay down a wrong precedent for the times to come. I am of a strong conviction that as the assessee had on account of his callous conduct and a habitual lackadaisical approach delayed the filing of the present appeals by a substantial period of 1563 days, therefore, the applications filed by him seeking condonation of the delay therein involved does not merit acceptance and are liable to be rejected at the threshold. 5. The co-ordinate bench of the Tribunal in the case of M/s. Phoenix Mills Ltd. Vs. Asstt. CIT in ITA No.6240/MUM/2007 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, I 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 me hereinabove, as the assessee had remained negligent regarding the process of law even before the first appellate authority and had filed the appeals before me after 1563 days, therefore, there appears to be no reason to adopt a liberal view and condone the inordinate delay therein involved. Also, I 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 appeals 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. 6. I may herein observe that in the case of State of West Bengal Vs. Administrator, Howrah 1972 AIR SC 749, the Hon’ble Apex Court 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 me hereinabove, as the assessee appellant in the present case is habitually acting in defiance of law, therefore, there can be no reason to allow his application and condone the substantial delay of 1563 days involved in preferring of the captioned appeals. 7. Also, I may herein draw support from a Third Member decision of a co-ordinate Bench of the Tribunal, in the case of Jt. CIT Vs. Tractors and Farm Equipments Ltd. (2007) 104 ITD 149 (Chennai), wherein a fine distinction was drawn between normal delay and inordinate delay. It was held as under: “A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach, but in the latter case no such consideration may arise and such a case deserves a liberal approach.” In the present case, the delay of 1563 days cannot be simply condoned on the basis of the unsubstantiated claim of the assessee that the same had occasioned on account of failure on the part of his regular chartered accountant in properly guiding him as regards filing of the appeals before the Tribunal. In fact, the conduct of the assessee before the lower appellate authority and the Assessing Officer clearly evidences his disregard for the process of law, which, I find, he had carried forward before me by preferring the appeal beyond a period of 1563 days after the lapse of the stipulated time period. 8. 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 substantial delay involved in preferring of the captioned appeals, therefore, I decline to condone the
ITA Nos.294-295, 297-301/RPR/2016 :: 9 :: delay of 1563 days and, thus, without adverting to the merits of the case dismiss all the captioned appeals of the assessee as barred by limitation.
Respectfully following the observations of ITAT Raipur Bench, wherein, various case laws decided by the Hon’ble Supreme Court and co- ordinate bench of Tribunals, were relied upon, and has observed that the assessee has failed to come forth with any good and sufficient reason that would justify condonation of the substantial delay involved in preferring of the captioned appeals. Therefore, the condonation of delay which was without any reasonable cause was declined. Under the identical circumstances in the present cases, we are of the considered view that without sufficient cause for delay, we are inclined to decline the condonation of delay in the aforesaid ‘seven’ appeals, and therefore, without going into the merits of the cases, dismissing all the captioned appeals of the assessee as barred by limitation.
In the result, all the appeals filed by the assessees stands dismissed in terms of our observations hereinabove.
Order pronounced on the 09th day of August 2023, in Raipur.
Sd/- Sd/- ( रवीश सूद ) (अरुण खोडपिया) (ARUN KHODPIA) (RAVISH SOOD) लेखा सदस्य/ACCOUNTANT MEMBER न्यायिक सदस्य/JUDICIAL MEMBER
ITA Nos.294-295, 297-301/RPR/2016 :: 10 :: रायपुरयपुर/Raipur, दिनांकंक/Dated: 09th August, 2023. TLN, Sr.PS आदेश की प्रतिलिपि अग्रेषित त/Copy to: 1. अपीलार्थीर्थी / The Appellant 2. प्रत्यर्थी / The Respondent 3. आयकर आयुक्त (अपील) / The CIT(A)-1, Raipur (C.G) 4. The Pr.CIT-1, Raipur (C.G) 5. विभागीय प्रतिनिधि, आयकर अपीलीय अधिकरण करण, रायपुरयपुर बेंच, रायपुरयपुर / The DR, ITAT, Raipur Bench, Raipur. 6. गार्ड फाईलईल/Guard File आदेशानुसार र / By Order
वरिष्ठष्ठ निजी सचिव व / Sr. Private Secretary आयकर अपीलीय अधिकरणकरण, रायपुरयपुर / ITAT, Raipur