TaxTMI 
TaxTMI 
2017 (5) TMI 1515
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....016. Again on 07/11/2016, the hearing was adjourned at the request of the assessee. On 09/03/2017, the assessee did not appear and thus, last opportunity was provided to the assessee. A registered notice of hearing was issued on 07/04/2017 for hearing for today i.e. 04/05/2017, which was duly received by the assessee as is evident from acknowledgment returned by the postal authorities. In spite of last opportunity provided to the assessee, neither presented itself nor moved any adjournment petition. It seems that the assessee is not interested to pursue its appeal, therefore, we have no option but to proceed ex-parte, qua the assessee, and tend to dispose of this appeal on the basis of material available on record. 2.1. At the outset, the Ld. CIT-DR pointed out that the appeal is time barred by 1382 days, which has not been explained by the assessee. The addition sustained by the Ld. Commissioner of Income Tax (Appeal) was strongly defended. 2.2. We have considered the submissions of Ld. CITDR and perused the material available on record. 2.4. Now, question arises, whether there is bona-fide delay. Before us, as mentioned earlier, the assessee neither appeared nor moved ad....
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....ct) was passed on 27/02/2006 disallowing the claimed deduction u/s 80HHC of the Act on the export incentives of DEPB. 2.2. The assessee felt aggrieved and filed appeal before the ld. First Appellate Authority on 10/04/2006, wherein, the appeal of the assessee was disposed off on 13/12/2007 granting part relief to the assessee and disallowing the claimed deduction u/s 80HHC of the Act on DEPB benefits. 2.3. Against the order of the ld. First Appellate Authority, the assessee filed appeal on 25/05/2012, which resulted into delay of 1625 days. The assessee relied upon the observation of the Hon'ble Apex Court 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....
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.... the observations made by the Hon'ble Courts, we are expected to analyze the facts and the reasons of delay in filing the appeal before this Tribunal. In the affidavit of the assessee, filed before this Tribunal, we note that even the assessee itself has admitted that the ld. Commissioner of Income Tax (Appeals) disposed off this appeal vide order dated 13/12/2007 and the order was received by the representative of the assessee, who kept the order in the drawer and thereafter the assessee met with an accident and could not attend the office. The appeal was filed by the assessee on 25/05/2012, which resulted into delay 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....
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....jury, if any, suffered by the assessee. However, in the present appeal, there is a clear cut conscious delay of 1625 days, which, in our view, if condoned, under the facts available on record, then there is no need to keep the provision under the limitation Act. Even the Hon'ble Apex Court in Collector, Land Acquisition vs Katiji (supra) has clearly mentioned about nondeliberate delay. Thus, in our humble opinion, the cases relied by the assessee cannot come to the rescue of the assessee, because the assessee has not adduced any evidence/reason, substantiating that the delay was caused due to the reasons which were 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. Wh....
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....it or if it is perverse." A 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, held as under (headnote) : "That the questions referred were not questions of law but questions of fact since it was a matter of discretion for the Tribunal to condone delay for sufficient cause on the facts and circumstances of each case." The consistent view is that such question would be a question of fact simpliciter and would not be covered under the provisions of section 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, inevit....
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....s 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. As discussed earlier, it is clear cut case of conscious decision, thus, we find no merit in the self made story of the assessee, therefore, on this issue, we are not agreeing with the admission of this appeal, thus, the delay is not condoned, therefore, the appeal is dismissed. Finally, the appeal of the assessee is dismissed as not admitted." We note that in the aforesaid order, the Bench has discussed various judicial pronouncements, along with the provisions of limitation Act. However, in the present appeal, before us, the assessee neither cured the defect nor moved any condonation petition for the delay. The approach of the assessee is very casual, therefore, no leniency can be extended to the assessee. The assessee is wilfully negligent or irresponsible, therefore, the huge delay of 1382 days cannot be condoned. 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....