TaxTMI 
TaxTMI 
2018 (1) TMI 187
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.... Assessing Officer informed the assessee. The Bench asked the ld. counsel whether he can produce the earlier tax consultant or to file an affidavit evidencing that in fact the orders were received by him and were not told to the assessee. The Ld. counsel contended that neither he can produce nor file an affidavit. The Bench again asked the ld. counsel for the assessee whether you can produce any evidence to show that the orders were in fact received by the earlier tax consultant. The Ld. counsel stated that no such evidence can be filed. The assessee has also filed certain case laws in its favour, which are kept on record. On the other hand, the ld. DR, Shri Ram Kumar Tiwari, contended that the assessee was contesting the penalty proceedings before the Department, therefore, he was very much aware that quantum proceeding has been decided against the assessee and even in Form No.36, the date of order received by the assessee has been mentioned as 30/06/2011, therefore, there is no bona-fide reason for condoning the delay as the assessee has to explain the delay of each day. The Ld. DR has also filed written submission describing the modus operandi of the assessee and the credible en....
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....assessment order was passed on 28/02/2011, wherein, Shri Shashi Kumar Agarewal, Authorized representative of the assessee attended the proceedings and filed the necessary details. Before the Ld. Commissioner of Income Tax (Appeal), one Shri J.P. Purohit, consultant attended the proceedings and the order was passed on 24/06/2011. It is noted that in penalty proceedings, which are offshoot of quantum proceedings, the assessee duly contested the same as is evident from record. The necessary para from the penalty order is reproduced hereunder for ready reference and analysis:- "2.3. On the basis of above observation and assessee's own admission, the Assessing Officer held in the assessment order that assessee is involved in the activity of issuing accommodation bills only and therefore books account were rejected u/s 145(3) of the I.T. Act, 1961, as the Assessing Officer was not satisfied about the correctness and completeness of the accounts of the assessee. Therefore, consideration received for providing such accommodation bills/entries was estimated at .075% of the total turnover of the assessee and addition of Rs. 45,32,534/- was made to the total income on this account. 3. Pe....
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....x consultant can be produced nor any affidavit from him. In such as situation, when the assessee was actively contesting the penalty proceedings, there is no reason/evidence, that he was not aware about the quantum proceedings as the penalty proceeds are offshoot of quantum proceedings only. 2.6. Now, question arises, whether there is bona-fide reason of delay. Before us, as mentioned earlier, the assessee did not produce any evidence to substantiate its claim mentioned in the application/affidavit. It was the duty of the assessee to explain the delay of each day. As mentioned earlier, the assessee was duly attending the penalty proceedings during the period and the appeal before this Tribunal was filed on 29/04/2013. It is purely the casual approach of the assessee or it can be said that it was conscious decision of the assessee to not to file appeal during the period and later on as advised by another counsel again a conscious decision was taken and appeal was filed late by 609 days. In such as situation, the decision of the Mumbai Bench of the Tribunal in the case of B.S. International (ITA No.4683/Mum/2012), order dated 26/10/2015 & M/s Orion Enterprises (ITA No.7387/Mum/2014)....
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....rt in the case 167 ITR 471(SC) Collector, land Acquisition vs Katiji. We find that the Hon'ble Apex Court held as under:- "When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in injustice being done because of a nondeliberate delay." The assessee also placed reliance upon the following observations of the Apex Court in the case of L. Balkrishanan. Vs. M. Krishnamurthy (1998) 7 SCC 123. "The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. T....
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....elay of 1625 days. In the application of the assessee (in para-3), it has been mentioned that the order of the ld. First Appellate Authority was received by the office assistant, whereas, in the affidavit, the order was claimed to be received by the peon of the firm, therefore, the claim of the assessee is itself contradictory. Further, the assessee met with an accident on 30/07/2010, whereas, the order of the ld. First Appellate Authority is dated 13/12/2007, thus, the claim of the assessee that he could not file before the Tribunal, due to accident is merely for argument sake and the assessee was having sufficient time to file the appeal. It is also noted that the assessee was attending other appeals and only when the recovery notice was sent to the assessee by the Department, the assessee took a decision to file the appeal. It is also noted that even before the ld. Commissioner of Income Tax (Appeals) as well as before the ld. Assessing Officer, the assessee was represented by authorized representative, meaning thereby, the assessee was well equipped with the advice of the legal representatives and even otherwise, the appeal was to be prepared/filed by the representatives and no....
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....re beyond his/its control and at the same time, the reasons were 'good and sufficeint', rather, it is a clear cut case of conscious decision. Even, the Hon'ble Apex Court in Vedabai alias Vaijayanatabai Baburao vs Shantarma Bavurao Patil reported in (2002) 253 ITR 798 (SC) made a distinction in delay and inordinate delay observed (page 799) as under:- "In exercising discretion u/s 5 of the limitation Act, the Court should adopt a pragmatic approach. 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 more cautious approach......." In Brij Inder Singh vs Kashiram (AIR) 1917 PC 156 observed that true guide for a Court to exercise the discretion u/s 5 of the limitation Act is whether the appellant acted with reasonable diligence in prosecuting the appeal. If the totality of facts, available on record, are judiciously examined then it can be said that the provisions relating to prescription of limitation in every statute must not be construed so liberally that it would have the effect of tak....
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....tion 256 of the Act unless such exercise of discretion or conclusion arrived at was perverse or so illogical that no reasonable person could come to such a conclusion. The authorities have exercised their discretion and we find nothing perverse in the impugned orders. Specific reasons have been given in the order which are not only logical but even reflect the conduct of the appellant before the authorities in not producing the record in spite of seeking time. The authorities which are exercising quasi-judicial powers in discharge of their statutory functions, inevitably have to be vested with some element of discretion in exercise of such powers. Merely because another view was possible or permissible on the same facts and circumstances, per se would not make such controversy a "question of law". So far as such decision of the authority is in conformity to the principle of law and is apparently a prudent one, the court would normally be reluctant to interfere in such exercise of discretion. We are not able to appreciate the contention of learned counsel for the petitioner that the Tribunal has applied wrong principles of law or that it has relied upon incorrect principles of la....
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....nouncements, along with the provisions of limitation Act. However, in the present appeal, before us, the assessee neither produced any evidence establishing that the order of the First Appellate Authority was in fact received by the tax consultant and further it was not communicated to the assessee, more specifically when the assessee was duly contesting the penalty proceedings, which were offshoot of the same quantum proceedings. In such a situation, the cases relied upon by the assessee may not of much help, because exercising the benefit of such judicial decisions, the assessee has to explain its bona fide reasons of not filing the appeal within the stipulated period. Thus, the benefit of such cases may not be extended ot the assessee. We are conscious of the fact that technicalities should not come in the way of substantial cause of justice but in cases, where the delay was beyond the control of the assessee or some genuine difficulties hindered his smooth way. The full Bench of the Orissa High Court, in the case of Brajabandhu Nanda v. CIT [1962] 44 ITR 668, considering somewhat similar question, where the appeal was barred by time and reference of the question was declined, h....