TaxTMI 
TaxTMI 
2020 (2) TMI 442
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..... 4. That the impugned appellate order is arbitrary, illegal, bad in law and in violation of rudimentary principles of contemporary jurisprudence. 5. That the Appellant craves leave to add/alter any /all grounds of appeal before or at the time of hearing of the Appeal." (B) Admittedly, this appeal has been filed beyond the time prescribed U/s 253(3) of Income Tax Act, 1961 ("I.T. Act", for short). As per Form No. 36 in which the assessee has filed this appeal; the date of communication of the aforesaid impugned appellate order of the Ld. CIT(A) is 16.12.2013. As per Section 253(3) of I.T. Act, the time limit for filing of appeal is within 60 days of the date on which the order sought to be appealed against is communicated to the assessee. Accordingly, time limit for filing of this appeal was available upto 14th February, 2014. However, the present appeal filed by the assessee was received in Income Tax Appellate Tribunal ("ITAT" for short) on 29.12.2014. A Defect Notice was sent by Registry to the assessee, communicating that the appeal was 'prima facie time barred by 318 Days'. An affidavit dated 23/10/2018, filed alongwith the appeal fil....
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....ought to be appealed against. The Hon'ble Bench may admit appeals after the expiration of period of 60 days, if it is satisfied that there was sufficient cause far not presenting the Appeal within the period of 60 days. In the present case the Appeal could not be filed within 60 days of the date of service of notice of hearing as the assessee was advised to file Cross Objections upon change of counsel only, the earlier counsel has advised the assessee other wise. Under these circumstances, the assessee was prevented by sufficient cause to file the appeal within (60 days of the date of service order sought to be appealed against, it is requested that the delay, of 365 days, in filing of the Appeal may kindly be condoned. It is further submitted that the power of condonation is expected to be exercised liberally so as to advance the cause of justice. [Voltas Ltd. v. DCIT (2000) 241 ITR 471 (AP)]. This decision is in line with the view taken by the Supreme Court in Collector, Land Acquisition v. Mst. Kaliji (1987) 167 ITR 471 (SC). Prayer In view of the above submissions it is prayed that the Appeal may kindly be admitted. ....
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....r of the assessee company. In view of these deficiencies and shortcomings, the affidavit filed from the assessee's side in support of request for condonation of delay in filing of this appeal lacks credibility. At this stage, we may refer to decision in the case of CIT v. Ram Mohan Kabra 257 ITR 773 (P&H). It was held in this case, that delay can be condoned only for sufficient and good reasons supported by cogent and proper evidence. In this case, Hon'ble High Court upheld the decision of ITAT refusing to condone delay of five days in filing of Revenue's appeal because of the reasons that (a) affidavit of person who was dealing with file, was not filed (b) the relevant records were not produced before the authorities concerned (c) affidavit filed on behalf of the applicant was based on hearsay and no facts were true to the knowledge of the person who filed the affidavit in support of the application for condonation of delay. In this case, Hon'ble Punjab and Haryana High Court held as under: 'The provisions relating to prescription of limitation in every statute must not be construed so liberally that it would have the effect of taking away the benefit ....
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....ncome-tax Appellate Tribunal. The reference application filed by the Revenue is accordingly dismissed." The Supreme Court of India in the case of Oriental Investment Co. Ltd. v. CIT [1957] 32 ITR 664, AIR 1957 SC 852, held as under (857 of AIR 1957 SC): "A finding on a question of fact is open to attack under section 66(1) as erroneous in law if there is no evidence to support 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 a somewhat similar question where the appeal was barred by time and reference of the question was declined, held as under: "That the questions referred were not questions of law but questioners 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....
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....eal within the time prescribed U/s 253(3) of I.T. Act. Admittedly, it was consciously decided at the assessee's end, to not file appeal, and to instead file the Cross Objection, if appeal was filed by the Revenue. A conscious decision by the assessee to not file appeal, does not take the character of sufficient cause within the meaning of Section 253(5) of I.T. Act. When it is consciously decided by assessee to not avail of right of filing appeal and to, instead; only avail of right of filing Cross Objection, then the fact that Revenue did not file appeal, and thereby did not present the assessee with an opportunity for filing the Cross Objection; cannot constitute 'sufficient cause' for the assessee for not filing the appeal within the time limit prescribed U/s 253(3) of I.T. Act. Moreover, on perusal of the records, we find no details regarding who advised the Director of the company to not file appeal and to instead file a Cross Objection upon filing of appeal by Revenue. There are also no details on our records as to whether any action was taken by the assessee against the person who had given such a useless advice. We are terming it as a 'useless advice' be....
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....re is also no explanation as to why there was considerable delay on the part of the assessee in realizing that Revenue had not filed the appeal in ITAT against the order of the Ld. CIT(A). This negligence was responsible for further delay in filing of the appeal, and what could otherwise have been delay of a short duration (of a few days), eventually became inordinate delay of more than 300 days. For an assessee deciding to not file appeal and to instead file Cross Objection, it was of utmost importance to keep a track of whether and when Revenue filed appeal in ITAT. The gross negligence on the part of the assessee in keeping track of this important matter cannot constitute "sufficient cause" for inordinate delay within the meaning of Section 253(5) of I.T. Act. In view of the foregoing facts and circumstances, it is evident that the assessee has acted in a nonchalant way with lackadaisical propensity for delay; and that the grounds on which condonation of delay has been sought, not only lack bonafides completely, but also, are evidently fanciful and concocted. On overall consideration of the facts and circumstances of this case, we are of the view that not only was there gross ne....
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....atil [2001] 9 SCC 106; and B. Madhuri Goud v. B. Damodar Reddy [2012] 12 SCC 693. These aforesaid decisions, including Collector, Land Acquisition v/s Mst. Katiji (supra) on which the assessee has placed reliance, were considered by Hon'ble Supreme Court in the case of Esha Bhattacharjee v. Management Committee of Raghunathpur Nafar Academy [2013] 12 SCC 649. After considering these numerous decisions of Hon'ble Supreme Court, a number of guiding principles were laid down by Hon'ble Supreme Court in paragraph 15 and 16 of the order in the case of Management Committee of Raghunathpur Nafar Academy and others (supra). The order of Hon'ble Supreme Court in the case of Mst. Katiji (supra), on which reliance has been placed from the assessee's side was also considered by Hon'ble Supreme Court in the case of Management Committee of Raghunathpur Nafar Academy (supra) while the Hon'ble Supreme Court laid down guiding principles. The guiding principles include, inter alia, the principles: (a) that lack of bonafides imputable to a party seeking condonation of delay is a significant and relevant fact; (b) that concept of liberal approach has to encapsulate the conc....
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....6, a pleader's gross carelessness affords no ground for condonation. It is well settled, that a legal adviser's mistake in order to justify condonation of delay, must be a bona fide mistake; for which reference may be made to Amritlal v. Phool Chand AIR 1938 Lah 81; Nazia Hasan Khan v. Ganga Din AIR 1939 Dulh 245; Sajadhaa Bhagat v. Moi Chand AIR 1941 Pat 1800; J.N. Surty v. T.S. Chettiyar Firm AIR 1927 Rang 20; Sarmukh Singh v. Chanan Singh AIR 1960 Purj 512 and Pandit Krishna Rao v. Trimbak AIR 1938 Nag 156. It is also settled that a mistaken advice given by a lawyer negligently and without due care is not a sufficient cause; as held in Rejputana Trading Co. (P.) Ltd. v. Malaya Trading Agency AIR 1971 Cal 313; Constancie v. Casteano AIR 1971 Goa 38; Badrinath v. Hari Bhagat AIR 1971 J&K 41 (FB); Chunnilal v. State of MP AIR 1967 MP 127, Municipal Board, Lucknow v. Kali Krishna Narain AIR 1944 Oudh 135 and Sahai v. Devi Chand AIR 1968 J&K. It is not as if mistake of a legal advisor, however, gross and inexcusable, will entitle an assessee to condonation of delay in filing of appeal. The facts of the case are to be examined to ascertain if there had been negligence or gross....
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....cient to make a perfunctory and genereal statement that the wrong advice was given bona fide .....". In the case of Babu Ram v. Devinder Mohan Kaura (supra)" it was so held by Hon'ble Delhi High Court that: "31. There is no formula that person is merely to plead mistaken legal advice." The basis of mistaken legal advice should also be disclosed to enable the court to see whether the advice tendered was bona fide or reckless......" (emphasis added by us) D. In view of the foregoing, we are of the unequivocal view, in the facts and circumstances of this case; that there was absence of "sufficient cause", within the meaning of Section 253(5) of I.T. Act, for not presenting the appeal within period referred to in Section 253(3) of I.T. Act, leading us unhesitatingly to reject assessee's request for condonation of delay in filing of this appeal within time prescribed U/s 253(3) of I.T. Act. In view of detailed discussion; and facts and circumstances of the case as narrated in foregoing paragraphs (B), (B.1), (B.2), (B.2.1), (B.3) and (C) of this order we conclude, in the facts and circumstances of this case, that no cause has been shown by the assessee fo....