TaxTMI 
TaxTMI 
2020 (2) TMI 442
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.... 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 filed by the assessee, contains reasons advanced by the assessee for the delay i....
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....thin 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. Thanking you Boutigue Hotels India Pvt. Ltd. (Director) B.2 The assessee's appeal came up for hearing in Income Tax Appellate Tribunal ("ITAT", for short) on 20.03.2019. The assessee's appeal was treated as unadmitted and was dis....
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....e 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 accruing to the other party in a mechanical manner. Where the Legislature spells out a period of limitation and provides for power to condone the reasons supported by cogent and proper evidence. Now it is a settled principle of law that the provisions relating to specifie....
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....oneous 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. 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 dischar....
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....t 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' because there is no explanation from assessee's side how any knowledgeable professional, well-versed and experienced in law, can ever justify or rationalise the advice to not file appeal, and to instead file Cross Objection if Revenue filed the appeal. There was always going to be a chance that Revenue might not file appeal. For mistake of lawyer to serve as valid considerat....
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.... 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 negligence on the part of the assessee in filing of this appeal within time prescribed U/s 253(3) of I.T. Act; but also complete absence of sufficient cause. The assessee is seeking an unfettered free play in filing of the appeal at whatever time it pleases even after substantial delay without sufficient cause. Despite inaction and negligence; condonation of delay has been sough....
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....ng 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 conception of reasonableness and it cannot be allowed a totally unfettered free play; (c) that the conduct, behavior and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration; (d) that if the explanation referred is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expos the o....
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....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 want of skill, competence or knowledge on the part of the legal advisor; or whether there was only a mistake that even a skilled legal advisor, well-versed and experienced in law might make that mistake. It is only in the latter case that an assessee may justifiably seek condonation of delay. In any case, the assessee, in the case before us, has not proved that the assessee had i....
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.... 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 for delay of 68 days, as already discussed in detail foregoing paragraph (B.2). Moreover, in the facts and circumstances of this case; for the rest of the period of delay in filing of the appeal, the reasons furnished by the assessee did not constitute sufficient cause within the meaning of Section 253(5) of I.T. Act, as already discussed in detail in foregoing paragraph (B.2.1) of this order. For coming t....