TaxTMI 
TaxTMI 
2023 (2) TMI 84
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....ances of the case and in law, the Learned CIT (A) National Faceless Appeal Centre (NFAC), Chennai, has erred in holding the delay, in filing the appeal cannot be condoned. The Appellant prays that, the delay be condoned and appeal should be taken for hearing. 2) On the facts and circumstances of the case and in law, the Learned CIT (A) National Faceless Appeal Centre (NFAC), Chennai, has erred in not deciding the issue on merits. The Appellant prays the same may kindly be heard & allowed. The consultant who prepared the appeal to be filed before the CIT (A), (NFAC), advised us to wait, till the outcome of the verdict, in respect of levy of penalty U/s 234 E of the. Act. After the verdict which is in favour of the Assesse, the consultant further advised, based on the verdict, the department itself may withdraw the intimation notice, issued U/s 154 of the Act. The department has not withdrawn the intimation notice. Since, it has not been withdrawn, there is a delay of 2327 days, to file the appeal before the CiT (A), (NFAC). The delay is neither willful or wanton. As per the order, in !TA No. 6240/M/2007 dated 23/03/2010, by the "A" Bench, ITAT, Mu....
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....rive any undue benefit. The Ld.Counsel for the assessee submitted that there was an ambiguity in the law in as much as there were divergent judgments on the issue of charging late filing fee u/s.234E of the Act, for bleated filing of quarterly TDS returns. However, of late, the law has been evolved where the position of law has been clarified by various courts and observed that in absence of enabling provisions u/s.200A of the Act, for levying penalty while processing return, there cannot be any late fee u/s.234E of the Act, before amendment to sec.200A of the Act by the Finance Act, 2014 w.e.f. 01.06.2015. The Ld.Counsel who was handling tax matters of the assessee, has advised the assessee not to file appeals for the reason that the Government may withdraw late filing fees charged for belated filing of returns on the basis of subsequent judgments. However, the assessee could able to contact another Counsel who had advised the assessee to file appeals on the basis of subsequent judgments of various Courts and Tribunals, which caused delay. But, the delay in in filing of the appeals is neither willful nor to derive any undue benefit, but purely beyond the control of the assessee. T....
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....FAC/2014- 15/10027035 2014-15/Q1 29.07.2014 17.11.2020 2273 days 14 NFAC/2014- 15/10027034 2014-15/Q3 30.10.2015 17.11.2020 1815 days 15 NFAC/2014- 15/10027033 2014-15/Q4 08.04.2019 17.11.2020 559 days 16 NFAC/2014- 15/10027030 2014-15/Q1 29.07.2014 17.11.2020 2273 days 17 NFAC/2014- 15/10027031 2014-15/Q3 05.05.2015 17.11.2020 1993 days 18 NFAC/2014- 15/10027032 2014-15/Q4 06.11.2015 17.11.2020 1808 days As could be seen from the reasons given by the assessee for condonation of delay before the Ld.CIT(A), we find that the assessee has taken two-fold arguments. The first and foremost arguments of the assessee before the Ld.CIT(A) are that there was an ambiguity in levy of late filing fees u/s.234E of the Act, in view of non-availability of enabling provisions u/s.200A of the Act, before amendment brought to sec.200A of the Act, by the Finance Act, 2014 w.e.f.01.06.2015. Therefore, the assessee was having a dilemma to file appeals against the order of the AO in levying late final fees u/s.234E of the Act, or not. However, of late, various Courts and Tribunals have taken a cons....
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....own out of judicial review on technical reasons, the purpose of advancement of substantial justice may defeat. Further, the very same Courts have very clearly held that it is the duty of the assessee to explain each and every day of delay with reasonable explanation. From the above, what we understood is that a meritorious case cannot be thrown out on technical reasons and at the same time, it is abundant duty of the litigant to explain the delay in filing of the appeals. Therefore, in light of above legal and factual background, if you examine the present cases, the assessee could not satisfactorily explained huge delay in filing of the appeals before the Ld.CIT(A) and said delay varies from 600-2500 days. Although, the assessee has given a reason that there was an ambiguity in the law in levying penalty u/s.234E of the Act, but, in our considered view said issue has been resolved by various Courts way back in the year 2016 itself. Further, the second reason given by the assessee that there was a wrong advice given by Consultant who handle the cases is unsubstantiated, because, the assessee could not file any evidences to justify its arguments. Moreover, it is for the assessee to ....
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....ai Baburao Patil vs. Shantaram Baburao Patil [2002] reported in 122 Taxman 114, the Hon'ble Apex Court made a distinction between delays that are trivial and cases where large delays had occurred in the following words (emphasis supplied): "In exercising discretion, under sect/on 5 of the Limitation Act the courts should adopt a pragmatic approach. A distinction must be made between a case where the^c/elay 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 a more cautious approach but in the latter case no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard." (iii) A similar view has been taken on an identical scenario by the Id. Appellate Tribunal, Mumbai, in Lakshya Global Logistics Pvt. Ltd vs DCIT, CPC TDS, Ghaziabad (I.T.A. No. 6979-6984/Mum/2017 dated 23.01.2019). Relevant portion is quoted below: 1. "We have heard counsels for both the parties and we have a/so perused the material placed on record, judgments cited by the parties as well as the o....
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....paper book relating to condonation of delay i.e Asthe Logistics Pvt. Ltd. vrs. PCIT (ITA No. 229/Mum/18), Vijay Vishin Meghani V. DC/7 86 taxmann.com 98 (Bom HC), Concord of India Insurance Co. Ltd. Vrs. Smt Nirmal Dew 118 ITR 507 (SC), Y. P. Trivedi Vrs. JCIT (ITA No. 5994/Mum/10) and Perfect Scale Co. Pvt. Ltd vrs. DCIT 37 CCH 434 (Mum-Trib), wherein it was held that assessee should not suffer on account of the wrong advice of the consultant, hence in the substantial interest of justice, the delay was condone. 7. We have also considered the judgment passed by Hon'ble Jurisdictional High Court in the case of Somerset Place Cooperative Housing Society Ltd. Vrs. ITC (2015) 57 taxman. Com 7 (Bom), wherein it was held that where assessee took voluntary decision not to assail the order of Tribunal and accepted the same, only because assessee succeeded on same issue 5 year later. the same could not be a sufficient cause to delay the condone of 5 years in filing the appeal. 8. In our considered view, section 5 of the Limitation Act cannot be stretched to bring about a situation of unsettling judicial decisions which stood accepted by the parties. If the contention o....
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....r an appeal, and it was filed only because the High Court had observed - and that was long after limitation had expired - that the case was fit for appeal by the State Government." (v) A reference can be made to the order of the Hon'ble Bombay High Court in the case of Ornate Traders Pvt. Ltd. (Successor to Kanu Metal Pvt Ltd) vs ITO, Ward 3(2)(3), [44 Notices of Motion No. 2281 of 2008 in I.T.A. (Lodging) No. 1814 of 2008], wherein it was observed as under (para 11 & 12, emphasis supplied): "11. Another aspect of the case is that the revenue and/or even the assessees are expected to act with care and expeditiousness and not to let things lie unprocessed for months together.......The law of limitation is normally to be construed strictly as it has the effect of vesting for one and taking away right from the other. To condone the delays in a mechanical or a routine manner may amount to jeopardizing the legislative intent behind section 5 of the Limitation Act. ...... It interposes a statutory bar after a certain period giving quietus to the rights arising from a judgment which is sought to be impugned........ Where the parties chose to sleep over their rights for pro....