TaxTMI 
TaxTMI 
Practice support - seriously contesting condonation of delay petition (COD) filed by appellant to win the case by respondent.
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....ractice support - seriously contesting condonation of delay petition (COD) filed by appellant to win the case by respondent.<br>By: - DEVKUMAR KOTHARI<br>Other Topics<br>Dated:- 28-1-2025<br>Contesting condonation of delay petition- Unexplained delay in filing of appeal by appellant - Respondent / opposite party(OP) can take advantage - if COD petition is dismissed OP wins the case. Earlier related articles: Learning from judgment: Un-necessary litigation by tax payers and delaying tactics can be costly- Bombay High Court dismisses WP and allow cost in favour of tax department Procedural and technical lapses may be costly - a lesson to strictly comply with legal formalities. Contesting COD petition is important step to win the case by respondent: If COD petition is dismissed , the opposite party wins the case. Therefore, contesting COD petition is an important steps for respondent/ OP. Close scrutiny of COD petition is necessary. On close scrutiny it can be observed that some statements made therein are without any basis , are wrong on facts and law, and some are just to mislead honourable Court. The respondent / OP can also demand documentary evidence of facts and events b....
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....ased on which Appellant is seeking COD. Government Departments are still in habit of raising old excuses which are no longer applicable in present era of information enabled organisations of government. For example, a COD petition is reproduced below seeking COD in filing of appeal by tax department. Names, designations , dates etc. are omitted for sake of privacy. Some important aspects on which COD was suggested to be contested by the author, to counsels, are highlighted for discussion about contesting the COD. The Hon'ble Chief Justice and His Companion Justices of the said Hon'ble Court …. The humble petition of the Appellant / Petitioner abovenamed most respectfully - SHEWETH: 1) Your Appellant / Petitioner has filed an appeal before this Hon'ble Court on xx 20xx against order dated passed by the Income Tax Appellant Tribunal, " '' Bench, …… in I.T.A. No. relating to the Assessment Year ….. 2) The order of the Tribunal was received by your Appellant / Petitioner on July xx , 20xx and as such the last date for filing the appeal was on November xx , 20xx. Therefore, there has been a delay of more than 9 xx days in filing the appeal under Sectio....
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....n 260A of the Income tax Act, 1961. 3) It is respectfully submitted that the petitioner has all along been vigilant and diligent and the delay occasioned in preferring the appeal is not attributable to any willful or deliberate act on the part of the Petitioner. It is respectfully submitted that delay occasioned by the petitioner in filing the appeal is for reasons beyond the control of the petitioner as would appear from the following facts: - * On xx 01, 20xx Income Tax Appellant Tribunal, …… Bench, passed order in I.T.A. No. ……. relating to the Assessment Year 20xx-20 xx. * On xxx xx , 20xx impugned order of the Tribunal was received by the office of the Principal Commissioner of Income Tax - ….. * On xx , 20xx ACIT, HQ.. wrote a letter to the ITO, Ward …… asking for Appeal Scrutiny Report. * On xx ,20xx ACIT H.Q wrote a letter to the ITO, ……. request him to send the comments in respect of ITAT order dated …… . * On xx , 20xx last date for filing of Appeal under Section 260A of the Income Tax Act 1961. * On xx , , 20xx2 ITO, ward ….. sent Appeals Scrutiny Report to the ....
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....office of Pr. CIT-… * On xx xx 11, 20x3, JCIT Range …… sent Appeals Scrutiny Report to the office of Pr. CIT-…… On xx 29, 20x3 Judicial folder was sent to the CIT (Judicial) for his kind perusal. * On November 30, 2023 CIT (Judicial) forwarded the Judicial folder to the office of Chief Commissioner of Income ……. for his kind perusal. On December 28, 2023, CCIT - ….approved filing of Appeal under Section 260A of the Income Tax Act, 1961. On xx xx , 20xx, CCIT approved filing of Appeal under Section 260A of the Income Tax Act, 1961. * On xx xx 29, 20xx ITO, Technical …… wrote a letter to the CIT- , for asking him to explain the delay regarding submission of Appeal Scrutiny Report. On xx xx, 20xx , ITO, ……. explain the delay in filing the Appeal Scrutiny Report. On xx xx , 20xx JCIT, Range wrote a letter to the Pr. CIT- …… to explain the delay in submission of Appeal Scrutiny Report. On xx xx , 20x4 DCIT, Hqrs, approved filing of Appeal under Section 260A of the Income Tax Act, 1961. * On xx xx 20x4 Pr. CIT approved filing of Appeal under Section 260A of the Incom....
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....e Tax Act, 1961. * On xx xx 20x4 CCIT - ….. asked the Assessing Office to explain the reason for delay in filing the Appeal. p. On xx xx, 20x4 CIT Judicial requested the Pr. CIT ….. to follow - up the issue as there is delay in filing the Appeal. * On x xx , 20x5, ITO, Technical send the entire judicial folder to the office of CIT Judicial, ….. for engagement of Counsels to draft Appeal, under Section 260A of the Income Tax Act, 1961. * On xx xx 20x5 Pr. CIT …… engaged Mr. …….Sr. Counsel, Mr. , Jr. Counsel to File appeal under Section 260A of the Income Tax Act, 1961 before the xxx Court, * On xx xx, 20x5 the Judicial folder was handed over to Mr. ………..Jr. Standing Counsel drafted Memorandum of Appeal, and Stay Petition and Application for Condonation of Delay petition. * On xx 0xx, 20x5 Mr. ……, Jr. Counsel drafted Memorandum of Appeal, and Stay Petition and Application for Condonation of Delay petition. * On xx xx , 20x5 Mr. , Jr. Counsel handed over the original Memorandum of Appeal, Stay Petition and Application for Condonation of Delay petition to Mr. ….. , Advoc....
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....ate, Senior Council for settlement. * On xx xx 20x5 Mr. ……. , Sr. Standing Counsel settled the Memorandum of Appeal, Stay Petition and Application for Condonation of Delay petition and handed over the judicial folder to the Jr. Standing Counsel. * On xx xx 20x5, Shri …… sent the entire judicial folder to the Income Tax Department for their kind perusal. * On xx xx 20x5 Income Tax Department prepared final typing and also made photocopies of each annexures for filing appeal under Section 260A of the Income Tax Act, 1961 and sent the same to the Jr. Standing Council for e-filing of Appeal. * On xx xx 20x5, the Appeal was filed before the Hon'ble Court. 4) Your petitioner states that the delay in filing the instant Appeal has not been occasioned due to any willful or deliberate act on the part of the petitioner. Since, your petitioner is a Government Department and the file had to move from one desk to another for the purpose of taking decisions regards the filing appeal, there was a few days delay in filing the appeal. 5) Your petitioner states that the delay occasioned in preferring the appeal may be condoned for the end of justice as su....
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....bstantial questions of law and huge amount revenue is involved in the present case. 6) Unless the orders as prayed for are made, your petitioner would suffer irreparable loss and injury. 7) The application is made bonafide and in interest of justice. In the circumstances, your petitioner most humbly prays for: - * An order condoning the delay of 9x5 day in filing the appeal against order dated ……. passed by the Income Tax Appellate Tribunal, …. Bench, …. in I.T.A. No. ….. relating to the Assessment Year 20xx-20xx; * Appropriate directions as to costs. * Such further order or orders be made and/or direction be given as would afford complete relief to your petitioner. And your petitioner as in duty bound shall ever pray. Petitioner's Advocate CHIEF COMMISSIONER OF INCOME TAX PR. COMMISSIONER OF INCOME I, Shri …………, son of ……. , aged about years, by faith : Hindu, by occupation : Service, working for gain at …….. do hereby solemnly affirm and say follows :- * That I am the Income Tax officer, Ward- …….. of the petitioner abovenamed and as such well acq....
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....uainted with the facts and circumstances of the above case and I have been duly authorised and competent to affirm this affidavit on behalf of the appellant/ petitioner abovenamed. * That the statement contained in paragraphs 1, 2 and 3 are information derived from records which I believe to be true to my knowledge and those contained in paragraphs 4, 5, 6 and 7 thereof are my humble submissions before this Hon'ble Court. Solemnly affirmed by the said Shri ………….. in the Court House at on this the day of Xx xx 20x5. BEFORE ME COMMISSIONER I, Shri ……., son of Late …………….r, aged about xx years, by faith : Hindu, by occupation : Service, working for gain at ………. do hereby solemnly affirm and say as follows :- * That I am Income Tax Officer, …….. of the petitioner abovenamed and as such well acquainted with the facts and circumstances of the above case and I have been duly authorised and competent to affirm this affidavit on behalf of the appellant/petitioner abovenamed. * That the statements contained in paragraphs 1 to 9 are information derived from records ....
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....which I believe to be true to my knowledge and the rest thereof are my humble submissions before this Hon'ble Court. Solemnly affirmed by the said Shri in the Court House at on this the xx xx , 20x5. BEFORE ME COMMISSIONER Observation of author on COD PETITION For delay of 900 + days (In fact there may be longer delay) any good and sufficient reasons is not given in respect to long time taken at most of stages and steps. Surprisingly and shockingly the Petitioner has described such long delay as' delay of few days' in the prayer to condone delay. Government Departments particularly Income Tax Department and its officers are well aware of their own procedures and time has to be managed by them to file appeal within time. The department has more than sufficient infrastructure and highly skilled work force to deal with such matters to ensure timely filing. The department has regular functionary for such matter because filing of appeals is a regular aspect. Department has available fast communication and data assimilation and processing tools in nature of Information Technology Enabled Services (ITES) by having portals of Department . Tribunal also has its portal on wh....
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....ich orders are easily accessible. Officers have computers with networking , internet facility , email addresses , network connectivity and digital signatures, land line and mobile phones etc. at their service for expeditious working. All concerned officers have local offices situated at ... and many may have office in the same building or a building within short distance. Therefore, unduly long time taken as mentioned in COD petition, at almost every stage, is not at all justified. This clearly shows highly careless, casual and indiscipline approach by senior officers and staff of department. For example, orders of Tibunal are posted on the portal of ITAT within a few days /( some times we find order displayed on the day of pronouncement itself) of passing of order and there are regular Departmental representatives and administrative staff in office of Pr. CIT, ITAT, ...., in the same building and at the same floor where ITAT has office is situate. Tribunal posts copy of order to all concerned officers that is the Pr. CIT, CIT, A.O. and concerned CIT(A) etc. Tribunal also displays date of pronouncement, and Ld. D.R. is well aware of the same. These are also displayed on ....
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....the portal of ITAT. If working diligently, D.R. ,AO and all concerned could get order as soon as possible by downloading from website also. Particularly in case of order which are pronounced against the department, the team of department must be active to take immediate action when any adverse order is passed to take steps to file appeal. Honorable Supreme Court and various High Courts have issued advisory / instructions and requested CBDT to file appeal timely and avoid delays. However, there is no change in practices followed by department. Therefore, time of xx5 more than 100 days , taken in receiving order of ITAT itself shows negligence and shows lack of attentiveness of concerned officers of department. Therefore, very long time taken in various interdepartmental communication between various step is not justified , no reason at all has been given for such delays. We find at most of stages and steps very long time has been taken causing, delays and work has not been completed within reasonable time. Furthermore, there is no explanation for delay at any stage. In most of steps delay has taken place and any reason is not given for such delays. For reasons of del....
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....ays, any documentary evidence has not been referred or provided to substantiate such delay. The COD petition vide para 3 , described various event serialized as (a) to (z) and at (aa) date of filing of Appeal is mentioned as xx/xx/20x5. For example, in serial a) date of order is mentioned at serial b) it is stated that order of ITAT was received on xx /xx/xxxx and in serial c) it is stated that on xx/xx /xxxx ACIT. Hqrs -..... wrote a letter to the ITO ward ..... asking for Appeal 'Scrutiny Report' . Thus it took long time in taking the first step which is a normal step on receipt of order of ITAT. In such case, immediately communication to the ld. AO is required and can be made by forwarding order and request by email to all concerned also. Surprisingly again in serial d) it is stated that the same officer again wrote a letter to the same ITO on xx/xx/ xxxx to send 'the comments' in respect of ITAT order. The two steps as mentioned in serial c) and d) are for the same activity described differently as for scrutiny and for comment of the Ld. AO. At serial e) it is stated that xx.xx. 20xx is last date to file appeal. At serial f) it is stated that on xx.xx.xx the ITO sent Appe....
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....al Scrutiny Report to the office of Pr. CIT- xxx There is no reason given as to why the Ld. ITO took period from xx xx xxxx to xx xx xxxx i.e. about 26 months) in sending Appeal Scrutiny Report. Appeal Scrutiny Report has also not been provided to substantiate length and seriousness, if any, in such report which took such a long time. ( respondent can ask for the same) In serial no. g) it is stated that JCIT Range ..... sent Appeal Scrutiny Report to the Office of Pr. CIT ...... on xx xx xxx3. Whereas in serial f) it is stated that the ITO has sent scrutiny report to the Pr. CIT It seems that un-necessary steps have been mentioned just to make list of step longer and it is likely to mislead anyone who is required to understand such steps and reasons for delay. This is a case of application to mislead the honourable Court about reasons when in fact there is no reason for delay. At serial (h) it is stated that on xx. Xx .xxx5 judicial folder was sent to the CIT (Judicial) for his kind perusal. At serial no i) it is stated that on xx.xx.xxx5 CIT ( judicial) forwarded the judicial folder to the office of Chief CIT ...... for his kind perusal . At serial no. j) it is stated that ....
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....on xx.xx.2xx5, CCIT .... approved filing of Appeal. Thus, it took 28 days at his hands and there is no reason given for such long time taken. At serial no. k) it is stated that CCIT ..... approved filing of Appeal on xx.xx .xxx5. Why approval of two CCIT was given is not given. Furthermore, CCIT ....... was not provided with the Judicial folder then how he could approve it?. At serial l) it is stated that on xx .xx .xxx5 ITO, Technical ....... wrote a letter to CIT- .... for asking him to explain the delay regarding submission of Appeal Scrutiny Report. At serial no. m) it is stated that on xx .xx .xxx4 ITO, ward ....... Kolkata explain the delay in filing of the Appel Scrutiny Report. At serial n) it is stated that on xx .xx. xxx4 JCIT Range ...... wrote a letter to the Pr. CIT ...... the delay in submission of Appeal Scrutiny Report. At serial no. o) it is stated that on xx .xx .xxx4 DCIT, Hqrs, ...... approved filing of appeal Again at serial no. p) it is stated that on xx.xx xxx4 Pr. CIT- ...... Kolkata approved filing of appeal. At serial q) again it is stated that on xx .xx .xxx4CCIT ..... asked the Assessing Officer to explain the reason for delay in filing the Appea....
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....l. At serial no r) it is stated that on xx .xx . xxx4 CIT, Judicial requested the Pr. CIT ....... to follow-up the issue as there is huge delay in filing the Appeal. At serial no. s it is stated that on xx .xx xxx4 , ITO Technical ..... , send the entire judicial folder to the office of CIT Judicial, ...... for engagement of Counsels to draft Appeal. ( why it is sent to CIT, Judicial is not known) when we find vid serial no. t) that on xx .xx.xxx 4 Pr. CIT ...... engaged a number of Sr. and Jr. Counsels to file appeal. At serial no. u) it is stated that on xx .xx. xxx4 the Judicial folder was handed over to Mr. ......, Jr. Standing Counsel .... for drafting appeal etc. At serial v) it is stated that on xx.xx. xxxx Mr. ........ ,Jr. Counsel drafted Memorandum of Appeal ,stay petition and Application for condonation of Delay petition. At serial w) it is stated that on xx.xx.xxx4 Mr. ...... , Jr. Counsel handed over the original Memorandum of Appeal, stay petition and Application for condonation of Delay petition to xxxx , Advocate , senior counsel for settlement. At serial x) it is stated that on xx.xx xxx4 Sr. standing counsel settled the Memorandum of Appeal ,stay petition an....
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....d Application for condonation of Delay petition and handed over the judicial folder to the Jr. Standing Counsel. At serial y) it is stated that on xx xx xxx4 the (.... some words are missing ) send the entire judicial folder to the income tax department for their kind perusal. ( to whom it was sent is not mentioned) At serial z) it is stated that on xx xx xxx 2xx5 income tax department prepared final typing and also made photocopies of each annexures for filing appeal and send the same to the Jr. Standing Counsel for e-filing of Appeal. At serial aa) it is stated that the appeal was filed before the honorable High Court. There is no explanation for long time of xx days taken from xx xx xxx4 to xx xx xxx4 in preparing documents and photo copies. Particularly when appeal filing was delayed, there should be more care to minimize time in every step. However, no urgency is shown in any step. At each stage lethargy, slow motion , carelessness and casual approach has been apparent. No one has given any reason for long time taken at any concerned stage. Only ld. AO was asked to explain reason for delay in sending Appeal Scrutiny and delay in filing of appeal. However, there is no re....
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....ason given for such delay. Delay has occurred at most of steps and stages however, there seems not a single word to explain such delay and long time taken in doing given work. In para 4 of the petition also any real reasons for delay has not been given. It is stated that the delay in filing the instant Appel has not been occasioned due to any willful or deliberate act on the part of the petitioner. It is stated that since petitioner is government department and the file had to move from one desk to another for the purpose of taking decision regards the filing of appeal, there was a few days delay in filing the appeal. Surprisingly and shocking very long delay of 900 + days has been described as delay of few days by the petitioner. This also proves careless and casual approach adopted by the petitioner and his team. This can also be called misleading statements. Surprisingly the Petitioner has given reason, which does not stand because of ITES and infrastructure available to all officers, and folders could be moved through email. The appeal was to be e- filed. All documents are available on computers of concerned officer , therefore, old historical reason of being government d....
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....epartment.... movement of files from one desk to other desk etc. does not hold water to explain delay of a single day. Settled legal position in case of assessee / respondent: Tribunal has also taken note of fact that in the case of respondent / assessee the issue being agitated was settled in favor of assessee when L.d CIT(A) allowed appeal of assessee and department accepted order of Ld. CIT(A) and did not prefer an appeal before Tribunal against order for AY xx04-05 dt. Xx.xx xx05 and also when tax effect was huge in that year also and was more than minimum prescribed for filing appeal. Settled legal position in case of other assesses was also considered. Tribunal has followed order and judgment of honourable xxx High Court in case xxxx Which has attained finality long ago. Department has not filed appeal before the Supreme Court in that case.. Therefore, there is no Substantial Question of Law, that now need consideration by honourable High Court. Therefore, the COD petition deserves to be dismissed for very long and unexplained delays at every stage. The appeal also deserves to be dismissed as it amount to abuse of the process of law by agitating issue that has been ....
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....settled in favor of assessee and against the department long ago. ON submissions by Ld. Counsel for respondent/ assesse on above lines, tThe COD was dismissed for the reason that appellant has not given any reason for any delay and there is unexplained long delay of 900 + days. Therefore, examining and contesting COD by respondent/ OP is a serious and important task to minutely examine each and every delay and reason given by appellant vis a vis records available. In case for any reason given respondent/ OP has no information or record, a request can be made to the appellant to provide the same. If the appellant fails or neglect to provide such information and document request for certified copy can be made. Still if the appellant do not provide it, a request can be made before the honourable Court for directions to the Appellant provide the same. Readers are requested to share their experience for enrichment of knowledge.<br> Scholarly articles for knowledge sharing by authors, experts, professionals ....