2011 (1) TMI 582 - HC - Income Tax

Condonation of delay granted in Tax Appeal 14/2010 due to advocate's unavailability. Costs imposed for delay.

MUKESH JESANGBHAI PATEL Versus INCOME TAX OFFICER, WARD III

The Court allowed the application for condonation of delay in filing Tax Appeal (Stamp) No.14 of 2010, citing the advocate's unavailability and the ... Condonation of delay of 825 days - applicant had tried to contact his advocate, Shri N. K. Amin, but the learned advocate was not available as he had gone to the United States of America. It is submitted that thereafter on several occasions, the assessee had made attempts to contact the learned advocate, however, since the learned advocate had not returned from the USA and as such was not available for a considerable period of time. - Held that: - the delay caused in preferring the tax appeal has been sufficiently explained and there was no deliberate negligence on the part of the applicant in filing the tax appeal. - Delay Condoned. Issues: Condonation of delay in filing Tax Appeal (Stamp) No.14 of 2010.Analysis:1. The applicant sought condonation of a delay of 825 days in filing Tax Appeal (Stamp) No.14 of 2010. The delay was attributed to the unavailability of the advocate who had the case papers as he was out of the country for a considerable period. The applicant made efforts to contact the advocate but was unsuccessful due to the advocate's absence. Subsequently, the papers were not traceable until the applicant received summons in a criminal case in May 2009, prompting further attempts to locate the advocate. The applicant finally handed over the papers to the advocate in August 2009, resulting in the delay in filing the appeal. The applicant contended that there was no deliberate negligence on their part, and the delay should be condoned in the interest of justice.2. The respondent opposed the application, arguing that sufficient cause had not been shown to condone the delay in filing the appeal. However, the Court considered the submissions from both parties and the applicant's explanation for the delay. It was noted that the advocate's unavailability, coupled with the papers being in his custody, hindered the applicant from filing the appeal within the limitation period. Despite the applicant's efforts to contact the advocate and retrieve the case papers, the circumstances beyond their control prevented timely filing of the appeal.3. The Court, after examining the facts and circumstances, found that the delay in filing the tax appeal had been adequately explained. It was concluded that there was no deliberate negligence on the part of the applicant in filing the appeal. Consequently, the application was allowed, and the delay of 825 days in filing Tax Appeal (Stamp) No.14 of 2010 was condoned. However, due to the significant length of the delay, costs were imposed at Rs.2,500/- to be paid to the Gujarat High Court Advocate's Library. The tax appeal would be registered upon the production of the receipt confirming the payment of the prescribed amount to the Library, thereby making the rule absolute.