TaxTMI 
TaxTMI 
2014 (12) TMI 676
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....ng the present appeal by the assessee appellant. Ld. Counsel has drawn our attention towards affidavit of Shri Hemant Kumar Gupta, Manager Taxation of the assessee company sworn on 11.8.2009 and submissions in the present application for condonation of delay and submitted that there was sufficient cause for delay as per requirement of the Act. Ld. Counsel has drawn our attention towards relevant paras of the application in hand filed by the assessee for condonation of delay of 1163 days, which read as under:- "The order of the CIT(A) dated 30.03.2006 was received by some employee of the company in April, 2006 and the same was forwarded to the Taxation department of the company. At that time Mr. Suresh Chawla and Mr. Rohit Bhatla were working as AVP Taxation and Manager Taxation respectively. Mr. Suresh Chawla and Mr. Rohit Bhatia left the organisation in October 2007 and January 2007 respectively. Recently, the new incumbent, Mr. Hemant Kumar Gupta who joined the company in February 2008, while culling out certain details/ information, in connection with the filing of appeal to CIT (A) against the order dt 23106/2009 levying penalty u/s 271(1)(c) in respect of assessment proc....
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....etion on the facts of each case keeping in mind that in construing the expression "sufficient cause", the principle of advancing substantial justice is of prime importance and approach of courts should be pragmatic and should receive a liberal construction. 5. Replying to the above, ld. DR submitted that the assessee appellant is bound to explain delay of 1163 days, which is an extraordinary delay in filing of this appeal, on day-to-day basis. Ld. DR further pointed out that the assessee company cannot take shelter of negligence of its own senior officers working in the taxation department of the assessee company. Ld. DR placed reliance on the decision of Hon'ble Supreme Court in the case of Chief Postmaster General and Others vs Living Media India Ltd. And Another (2012) 348 ITR 7(SC) and in the case of Pundlik Jalam Patil (dead) by LRS vs Executive Engineer, Jalgaon Medium Project (2008) 17 SCC 448 and submitted that when the conduct of the senior officers of the assessee and facts of the case clearly show the neglect of its own right for a long time in preferring appeals, then it is not expected from the judicial and quasi-judicial authorities to inquire into belated and ....
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.... that the discretion under section 5 of the Limitation Act is exercised by the civil judge in contravention of the law laid down by this court, that the expression "sufficient cause" should receive liberal construction, in a catena of decisions (see State of West Bengal v. Administrator, Howrah Municipality, AIR 1972 SC 749 ; [1972] 1 SCC 366 and Smt. Sandhya Rani Sarkar v. Smt. Sudha Rani Debi, AIR 1978 SC 537 ; [1978] 2 SCC 116). The High Court in exercising its jurisdiction under section 115 of the Civil Procedure Code, failed to correct the jurisdictions error of the appellate court." 8. We further observe that in the case of Collector, Land Acquisition vs MST. Katiji and Others (supra), the Hon'ble Apex Court also interpreted the essence of provisions of section 5 of the Limitation Act, 1963 which is para materia to the provisions of section 253(5) of the Act. The relevant observations of Hon'ble Apex Court in this case read as under:- "The Legislature has conferred the power to condone delay by enacting section 5 of the Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on de merits ". The expression....
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....he provisions stipulated that after expiry of stipulated period of limitation as per provisions of the relevant Act, if the court is satisfied that there was a "sufficient cause" for non-presenting the case/appeal within prescribed period, then the appeal /case may be admitted for hearing on merits by condoning the delay. It is true that an order condoning the delay in filing the appeal is a discretionary one but it is also pertinent to note that if discretion has been exercised on the wrong principles by giving undue liberal approach which is not at all justice oriented, then the purpose of these provisions would be defeated and frustrated. We further hold that discretion should not be exercised in favour of a person who neglects his own rights, for a pretty long time, in preferring appeals and causes extraordinary delay without any sufficient cause. 11. In view of submissions and contentions of both the parties, at the outset, we respectfully take note of the decision of Hon'ble Apex Court in the case of Vedabai alias Vaijayantabai Naburao Patil vs Shantaram Baburao Patil (supra) wherein the delay of 7 days was condoned with following observations thus:- "The Supreme Co....
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....whether the reasons for justifying such a huge delay are acceptable or not, it is also useful to refer the decisions relied on by Mr. Soli J. Sorabjee, learned senior counsel for the respondents. i) In Commissioner of Wealth Tax, Bombay vs. Amateur Riders Club, Bombay, 1994 Supp (2) SCC 603, there is a delay of 264 days in filing the SLP by the Commissioner of Wealth Tax, Bombay. The explanation for the delay had been set out in petitioner's own words as under: ".....2 (g) The Advocate-on-Record got the special leave petition drafted from the drafting Advocate and sent the same for approval to the Board on June 24, 1993 along with the case file. (h) The Board returned the case file to the Advocate-on- Record on July 9, 1993 who re-sent the same to the Board on September 20, 1993 requesting that draft SLP was not approved by the Board. The Board after approving the draft SLP sent this file to CAS on October 1, 1993." After incorporating the above explanation, this Court refused to condone the delay by observing thus: "3. ... .... Having regard to the law of limitation which binds everybody, we cannot find any way of granting relief. It is true that Government shou....
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....of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the landlosers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the landlosers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest." 11) We have already extracted the reasons as mentioned in the "better affidavit" sworn by Mr. Aparajeet Pattanayak, SSRM, Air Mail Sorting Division, New Delhi. It is relevant to note that in the said affidavit, the Department has itself mentioned and is aware of the date of ....
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.... not be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government. 13) In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to ....
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....f the fact that on which date Mr. Gupta found draft sets of appeal. The DR also pointed out that decisions of Hon'ble Supreme Court as relied by the applicant are not applicable to the present case as there was a delay of a few days in these cases and the present case is squarely covered in favour of the cases of Chief Post Master General vs Living Media Pvt. Ltd. (supra) and Pundlik Jalam Patil (Dead) by LRS vs Executive Engineer (supra). 17. Ld. Counsel for the assessee contended that assessee never gets any benefit by filing delayed appeal and appeals having merits should not be thrown away merely because there is some delay in filing the appeal and the appellant should be allowed to press its case on merits in the interest of justice and for the cause of justice. 18. On careful consideration of above contentions and submissions of both the sides, we are of the view that there is an extraordinary delay of 1163 days in filing this appeal for which assessee has to show "sufficient cause" but the cause shown by the assessee may be considered a "sufficient cause" for the intervening period when old officers left or parted with the company and till new Manager Taxation Mr. ....