TaxTMI 
TaxTMI 
2017 (1) TMI 1205
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.... of auditor and further due to the time taken in pursuing the alternate remedy available under the statute while overlooking the decision of this Hon'ble Court reported in 153 ITR 596?" 2. Facts deduced from the material record are that assessment orders were passed on 26.12.2009 against the appellants, for the Assessment Year 2006-2007. Assessees are different. Being aggrieved by the same, separate appeals before the Commissioner of Income Tax (Appeals)-II, Chennai, have been filed. After considering the contentions of the parties, the Commissioner of Income Tax (Appeals)-II, vide order dated 03.10.2011 dismissed the appeals. Thereafter, the appellants seemed to have presented individual rectification petitions, under Section 154 of the Income Tax Act, 1961. Contending inter alia that subsequently, the appellants were advised by their new counsel to file regular appeals before the Income Tax Appellate Tribunal, Chennai under Section 253 of the Income Tax Act, appeals have been filed, before the Tribunal with a delay of 962 days in filing appeals. 3. Appellants have admitted that the time limit to file appeal before the Tribunal is 60 days from the date of receipt of the ....
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....ITR 0596, Mr.S.Sridhar, learned counsel for the appellants, submitted that when the assessees have duly prosecuted their rectification petitions, filed under Section 154 of the Income Tax Act, 1961, their bona fide action, would not attract laches, and therefore, the appeals filed before the Tribunal, ought not to have been rejected on the grounds of laches, negligence or lack of bona fides. According to him, the assessees had only acted on the advice given by their Chartered Accountants. 6. It is also his submission that the assessees have filed rectification petitions under Section 154 of the Income Tax Act, 1961, before the Commissioner of Income Tax (Appeals)-II, within 60 days from the date of receipt of the order of the Commissioner of Income Tax (Appeals), and that they were awaiting, notice on the above said applications. He also submitted that as per the procedure followed, rectification petitions filed under Section 154 of the Income Tax Act, 1961 would be tagged along with the order passed by the Commissioner of Income Tax (Appeals). As the miscellaneous petitions filed by the appellants, were not taken on record, a reminder was sent on 28.05.2014 to the Commissioner ....
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.... 2 Anita Kochar 214/09-10 18.07.2012 Dy. Commr. of Income Tax 3 Ramesh Kumar Kochar 210/09-10 18.07.2012 Dy. Commr. of Income Tax 4 Sarla Kanwar 213/09-10 18.07.2012 Dy. Commr. of Income Tax 5 Suresh Kumar Kochar 211/09-10 18.07.2012 Dy. Commr. of Income Tax Thus except in Serial No.1, all the other petitions, have been filed under Section 154 of the Act, have been before the authority, not competent to entertain, and mandated to exercise the powers under Section 154 by the Income Tax Act, 1961. 11. Material on record further discloses that after filing the rectification Petitions in 2012, after nearly two years, in 2014, the appellants/assessees have sent a letter dated 28.05.2014 to the Commissioner of Income Tax (Appeals), Range-II, enclosing a copy of the miscellaneous application filed with Tapal Section before the Deputy Commissioner of Income Tax on 18.07.2012 and 19.07.2012 respectively, admitted the fact, that instead of filing in the office of the Commissioner of Income Tax (Appeals), Range II, who had disposed of the appeals, they have submitted the rectification petitions, to an authority, not c....
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....authority to entertain any application under Section 154 of the Income Tax Act, 1961. When Miscellaneous petitions have been filed, in a wrong forum, it is our considered view that it is the duty of the appellant to pursue the same and seek for adjudication, by the competent authority. 15. Absolutely, there are no materials to indicate, as to what steps the appellants had taken between the date of filing of the miscellaneous petitions, i.e. 18.07.2012 or 19.07.2012, and the date on which the supporting affidavits for condonation, have been filed, except, sending a reminder on 28.05.2014. The appellants have not stated the date, as to when, the change of brief was given and also the date as to when opinion was given by the learned counsel to prefer appeals, before the Tribunal. No details are given in the affidavit filed by the assessees, as to why, they have not, prosecuted the applications filed under Section 154 of the Income Tax Act, 1961, for nearly two years. 16. In the supporting affidavit to the petitions filed for condoning the delay of 962 days, in filing the appeals, before the Tribunal, the assessees have not given the dates, as to when they had handed over the pap....
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....ly refer to the recent decision of this Court in Esha Bhattacharjee [Esha Bhattacharjee v. Raghunathpur Nafar Academy, reported in (2013) 12 SCC 649], where several principles were culled out to be kept in Principles (iv), (v), (viii), (ix) and (x) of para 21 can be usefully referred to, which read as under: (SCCpp.658-59) 21.4(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. 21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. 21.9 (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weight the scale of balance of justic....
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....es and the Respondents were really keen to get the decree for specific performance by filing the appeals, they should have shown utmost diligence and come forward with justifiable reasons when an enormous delay of five years was involved in getting its appeals registered. 23. It is also worthwhile to extract paragraph Nos.14 to 17 of the judgment in Tamilnadu Mercantile Bank's case. "14. We are unable to agree with the reasoning of the learned Judge that no litigant ordinarily stands to benefit by instituting a proceeding beyond time. It is common knowledge that by delaying a matter, evidence relating to the matter in dispute may disappear and very often the party concerned may think that preserving the relevant records would be unnecessary in view of the fact that there was no further proceeding. If a litigant chooses to approach the Court long after the time prescribed under the relevant provisions of the law, he cannot say that no prejudice would be caused to the other side by the delay being condoned. The other side would have in all probability destroyed the records thinking that the records would not be relevant as there was no further proceeding in the ....