TaxTMI 
TaxTMI 
2025 (5) TMI 2335
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....ogether and are being disposed of by this common order for the sake of convenience and brevity. ITA No.963/Kol/2024 A.Y. 3. At the outset, we observe on the basis of appeal folder that this appeal is time-barred by 5174 days in filing the appeal by the assessee. 4. The facts in brief are that the petitioner, Jyoti Ranjan Roy, is a disabled person and is being represented by limited guardian namely Suvojit Roy. The petitioner is the limited guardian of the assessee and is also his son and has been appointed as the Limited Guardian under the Rights of Persons with Disability Act, 2016 vide order dated January 11, 2024, passed by the Ld. District Judge, North 24 Parganas in Misc. Case No. 74/2023 in Suvajit Roy (petitioner) and Debashree Roy Biswas and Others (Consentee petitioner). The instant petition is being filed for condonation of delay in filing the appeal against the order dated 31.12.2009, passed u/s 250 of the Act before the Tribunal. 5. The ld. counsel of the assessee vehemently submitted before us the details or factual aspects of the matter and also the reasons responsible for delayed filing of the appeal before the Tribunal which are extracted as under: ....
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....re-examined, did not pursue the appeal filed before the Commissioner of Income Tax (Appeals) and also did not file any appeal against the order dated December 31, 2009 passed by the Commissioner of Income Tax (Appeals), subsequently. 6. The Commissioner of Income Tax passed the order dated January 31, 2011 under section 263 of the Act setting aside the assessment order dated December 31, 2008 and directed the Assessing Officer to pass a fresh assessment order after considering the observations made in the order dated January 31, 2011. No appeal was filed against the aforesaid order dated January 31, 2011. Copy of the order dated January 31, 2011 is annexed hereto and marked "A". 7. Your petitioner states that the aforesaid understanding of the legal implications of the revision proceedings got strengthened by the fact that the Assessing Officer in the course of the give effect proceedings, again raised queries pertaining to the said investments and then by his order dated August 25, 2011 again added the said investments of Rs. 1,62,75,000/- in RBI Bonds to the income of your petitioner. Copy of the order dated August 25, 2011 is annexed hereto and marked "B". ....
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.... Tribunal as the order dated August 25, 2011 had been set aside and fresh assessment order had been passed by the Assessing Officer. Following the advice received, the Assessee filed a letter dated July 11, 2016 before this Hon'ble Tribunal craving leave to withdraw the appeal being ITA No. 2857/Kol/2013 and the same was allowed by this Hon'ble Tribunal by its order dated July 11, 2016. Copies of the application dated July 11, 2016 and the order dated July 11, 2016 are annexed hereto and are collectively marked "F". 12. Being aggrieved by the order dated March 31, 2015, passed by the Assessing Officer, the Assessee preferred an appeal before the Commissioner of Income Tax (Appeals) wherein the Assessee had objected to the aforesaid addition pertaining of investments made in RBI Bonds under section 68 of the Act. However, the Commissioner of Income Tax (Appeals) by his order dated December 5, 2016 rejected the appeal on the said issue on the ground that same had been already adjudicated by the Commissioner of Income Tax (Appeals) in his order dated December 31, 2009. Copy of the order dated December 5, 2016 is annexed hereto and marked "G". 13. Against the ....
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....uld not be contacted. On the basis of the aforesaid input, the Tax Advocate filed an adjournment application dated October 28, 2020, and the same was duly allowed by this Hon'ble Tribunal. Copy of the application dated October 28, 2020 is annexed hereto and marked "I". 18. Your petitioner states that before the next date of hearing, the Tax Advocate again approached the said tax consultant for instructions, however, no instructions were received. Later the said tax consultant asked the Tax Advocate to withdraw himself from the appeal owing to the lack of instructions. Accordingly, the said Tax Advocate filed an application before this Hon'ble Tribunal vide an email dated January 12, 2021 and appeared before this Hon'ble Tribunal on January 13, 2021 to inform this Hon'ble Tribunal about the same. Copy of the email dated January 12, 2021 is annexed hereto and marked "J". 19. Your petitioner states that at the time of the hearing the Hon'ble Tribunal asked the Tax Advocate to inform the Assessee or its representative of the next date of hearing and allowed him to retire from the matter. Accordingly. the Tax Advocate informed the said tax consultan....
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....he received a notice from this Hon'ble Tribunal mentioning that the 2017 Appeal was fixed for hearing on September 6, 2022. Copy of the notice is annexed hereto and marked "L". 24. Your petitioner immediately approached his friend, who was also an advocate practicing in tax matters (hereinafter referred to as the "Second Advocate") with the said notice. Your petitioner states that the Second Advocate asked him to provide the papers but the petitioner stated that he did not have any papers. The said Second Advocate thereafter looked into the website of this Hon'ble Tribunal and found that the appeal had been adjourned from time to time but the details of the tax practitioner appearing could not be found. The Second Advocate thereafter examined the records of this Hon'ble Tribunal and became aware of the fact that the said Tax Advocate was previously looking into the said 2017 Appeal but had retired and also that the Assessee had written a letter to this Hon'ble Tribunal asking for settlement of the issue but was not of sound mind at the time of writing the said letter and not in a position to understand the implications of his actions. The Second Advocate al....
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....are Act, 2017, being Miscellaneous Case-74/2023 (CNR WBNP01- 002174-2023) being Suvajit Roy (Petitioner) and Debashree Roy Biswas and Others (Consentee Petitioners) before the court of the Learned District Judge North 24 Parganas, Barasat. The said petition first came up for hearing on March 2, 2023 and was thereafter heard from time to time. 28. Your petitioner states that the aforesaid application was not progressing much. The Second Advocate advised your petitioner to file a petition before the Hon'ble Calcutta High Court requesting the Hon'ble High Court to direct the Learned District Judge to expeditiously decide the aforesaid application. Accordingly, your petitioner and other members of the Assessee's family filed and a petition under Article 227 of the Constitution being CO. 3199 of 2023 in Re: Suvajit Roy and the Hon'ble High Court vide the order dated September 21, 2023 directed the Learned District Judge to expeditiously take up the hearing of the said application filed before it and dispose the same on an urgent basis. Copy of the order dated September 21, 2023 is annexed hereto and marked "N". Your petitioner craves leave to refer to t....
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....an application for condonation of delay would have to be prepared. 31. Your petitioner states that he was advised by the Second Advocate that they should also approach a Senior Advocate practicing before this Hon'ble Court with the respect to the appeal sought to be filed. Accordingly, your petitioner approached a Senior Advocate on February 12, 2024, who after examining the papers concurred with the view of the Tax Consultant. 32. Your petitioner states that he again approached the said Tax Advocate on February 14, 2024 and requested him to take steps for filing the appeal along with the Second Advocate and provided with the drafts previously sent on February 22, 2024. Your petitioner states that the said Tax Advocate held conferences from time to time and sought for various documents and details and prepared the application for condonation of delay and the Form 36 on April 17, 2024 and shared a copy of the same over an email. Copy of the email is annexed hereto and marked "p". 33. Your petitioner states that it took him some time to provide further details sought and ready the annexures and that the instant appeal. Further, there were some factual i....
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....ly beyond the control of the assessee. The subsequent counsel appointed thereafter advised the assessee to file the appeal with condonation of delay. The ld. AR contended that the assessee should not penalised for the wrong advice given by the counsel and therefore, the delay may kindly be condoned. The ld. AR relied on the decision of N. Balakrishnan vs. M. Krishnamurthy in Civil Appeals Nos. 4575-76 of 1998 dated 03.09.1998 and Mool Chandra vs. UOI reported in (2025) 1 Supreme Court Cases 625. 7. The ld. DR strongly opposed the contentions made by the ld. AR of the assessee and stated that such an inordinate delay may not be condoned though he admitted that the assessee is a disabled person who is being represented by limited guardian. The ld. DR submitted that the reasons stated by the assessee are insufficient and inadequate and therefore, the appeal of the assessee may be dismissed in limine on the ground of being barred by limitation. 8. We have heard the rival submissions and perused the materials on record. We find that the assessee is a disabled person and the petition filed by the petitioner namely Suvajit Roy who is appointed as the Limited Guardian under the Right....
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....ining the issue as mentioned in the revisionary order. We note that in the second effect-giving proceedings, the Assessing Officer again enquired the issue of investment in RBI bonds and the assessee replied vide letter dated 26.03.2015 explaining the said investment. The Assessing Officer again in the order dated 31.03.2015 added the said investment u/s 68 of the Act. The assessee again preferred appeal before the ld. CIT(A) against the said order. In the meantime, the then counsel of the assessee advised the assessee to withdraw the appeal already filed before the Tribunal against the order dated 25.08.2011 on the ground that the assessment order had been set aside and fresh assessment has been framed and following the said advice of the counsel, the assessee filed a letter dated 11.07.2016. Again, the ld. CIT(A) vide order dated 05.12.2016 rejected the appeal of the assessee on the ground that the same had already been adjudicated by the ld. CIT(A) in his order dated 31.12.2009. Now, the assessee again preferred an appeal before the Tribunal on 05.12.2016 challenging the addition confirmed by the ld. CIT(A). In the meantime, the assessee approached a new advocate who is regularl....
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....t the sufficient cause should be considered liberally and length of delay is no matter, explanation for such delay is the sole criterion. The Hon'ble Apex Court further held that in the absence of mala fide explanation or dilatory strategy, the court should condone the delay. The relevant part of the said decision of extracted below: "It is axiomatic that condonation of delay is a matter of discretion of the court Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in reversional jurisdiction, unless the exercise of discretion was on whole untenable grounds or arbitrary or perverse. But it is a different matter when the first cut....
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....to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss. In this case explanation for the delay set up by the appellant was found satisfactory to the trial court in the exercise of its discretion and the High Court went wrong in upsetting the finding, more so when the High Court was exercising reversional jurisdiction. Nonetheless, the respondent must be compensated particularly because the appellant has secured a sum of Rs. Fifty thousand from the delinquent advocate through the Consum....