TaxTMI 
TaxTMI 
2017 (10) TMI 248
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....6-­97 Income Tax Appeal No.5419, both of 2011, were filed by an individual assessee in the Income Tax Appellate Tribunal, Bench at Mumbai. 3. The application seeking condonation of delay in both appeals, was taken up by the Tribunal together. Meaning thereby, the application for condonation of delay in both the appeals is disposed of by this common order dated 20-­8­-2014. 4. After hearing both sides and perusing the order of the Tribunal, we find that the questions, which can be termed as substantial questions of law arising out of this order, can be formulated as under:­ (A) Was the Tribunal justified on facts and circumstances and in law in dismissing the two appeals as barred by limitation? (B) Whether the discretion vesting in the Tribunal has been exercised by it reasonably and in accordance with the settled legal principles enabling condonation of delay in filing of statutory appeals? 5. With the consent of both sides, we dispose of these appeals finally by the present order. 6. Mr. Dastur, learned Senior Counsel appearing on behalf of the appellant, would submit that both the appeals were filed by the assessee against two separate orders of....
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....ould support the conclusion of the Tribunal in refusing to condone the delay. He would submit that eventually this is a discretion vesting in the Tribunal and if it is exercised fairly, reasonably and in accordance with law, then, this Court should not interfere with the same merely because another view is possible. He would, therefore, submit that the appeals be dismissed. 9. For properly appreciating the rival contentions, the first thing that we would have to do is to peruse the application which was filed seeking condonation of the delay. It is clear that the assessee also relied upon the written submissions and the compilation of Judgments, setting out the settled principles/reiterating them. 10. It is clear from the record that the assessee had filed an application supported by an affidavit. He stated that the order of the Commissioner of Income Tax (Appeals) was received for the Assessment Year 1994-­95 on 20­-3­-2003. The last date for filing the appeal before the Tribunal was 19­-5-­2003. However, for the reasons beyond the control of the assessee, the appeal is filed on 20­-7­-2011. There is a delay of 2984 days in filing the appeal, but ....
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....litigation as the issue of Section 80­O involved in the assessment years in question was identical to the one involved in the appeal before the Tribunal for the Assessment Year 1993­-94. It was then pending before the Tribunal. The assessee stated in his affidavit that he was further advised by the Chartered Accountants that after adjudication of the appeal for the Assessment Year 1993-­94 he could move a rectification application before the Assessing Officer to bring his assessment order in conformity with the decision of the Tribunal. The assessee stated that on 29­-6­-2006, the Tribunal restored the matter back to the file of the Assessing Officer for the Assessment Year 1993-­94 to examine the issue of allowability of deduction under Section 80­O of the I.T. Act, 1961. Thereafter, the Assessing Officer passed an order on 19­-2-­2009 allowing the claim under that section of the I.T. Act, 1961. 12. The order giving effect to the Tribunal's order was received by him sometime in May, 2009. That is how he first preferred a rectification application to the Assessing Officer to rectify his order for the Assessment Year 1994-­95 and Assess....
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....20 page order, what we find is that there is a reference made to several decisions of the Hon'ble Supreme Court brought to its notice by the assessee's Senior Advocate, the explanations and reasons furnished by the assessee on affidavit and supported by his Chartered Accountants. The Tribunal, then, in para 8 of the order under appeal highlighted the lethargic steps adopted by the Revenue in the instant case. The Tribunal holds that the assessee has simply put the responsibility for the delay on the Revenue. When this kind of averments are made, according to the Tribunal, it is normally expected that the Revenue should verify the compilation/assessment record to find out the veracity of such explanation. It is unfortunate that the Revenue did not care to verify the record to find out the veracity of the submissions. Importantly, the Tribunal finds that the Revenue has not chosen to counter the averments made on affidavit by the assessee and his Chartered Accountant by furnishing any counter affidavit/explanation. The criticism of the Departmental representative's conduct is also to be found in para 8. 15. Thus, we find that the Tribunal, out of sheer desperation and ....
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....bunal holds that the assessee failed to show that there was sufficient cause. How that cause is not sufficient has been explained by the Tribunal in the earlier paragraphs. However, the explanation which the assessee provided was an advise from his Chartered Accountant. That is why the paragraphs are devoted to the conduct of the professional. The advice given is not only termed as wrong/absurd but the assessee is faulted for blindly accepting such an advice. He is termed as an imprudent man and who failed to verify the correctness of the advice given or apply his mind to it. Thus, the behaviour of the assessee, according to the Tribunal, is beyond the comprehension of human conduct and probabilities. 18. We do not see how these are relevant principles. 19. Way back in the year 1979, in a decision reported in AIR 1979 SC 1666 {M/s. Concord of India Insurance Co. Ltd. Vs. Smt. Nirmala Devi and others}, the Hon'ble Supreme Court has held that a legal advice tendered by a professional and the litigant acting upon it one way or the other could be a sufficient cause to seek condonation of delay and coupled with the other circumstances and factors for applying liberal principle....
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....p. 215): "The law is settled that mistake of counsel may in certain circumstances be taken into account in condoning delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way. The High Court unfortunately never considered the matter from this angle. If it had, it would have seen quite clearly that there was no attempt to avoid the Limitation Act but rather to follow it albeit on a wrong reading of the situation." "The High Court took the view that Mr. Raizada being an Advocate of 34 years' standing could not possibly make the mistake in view of the clear provisions on the subject of appeals existing under Section 39(1) of the Punjab Courts Act and therefore, his advice to file the appeal before the District Court would not come to the rescue of the appellant under Sec. 5 of the Limitation Act. The Supreme Court upset this approach." "I am of the view that legal advice given by the members of the ....