M/s Raj Gramodyog Vikas Samiti, Faizabad V. Commissioner of Income Tax, Faizabad

ITA 107/LKW/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100317 (ITAT-LUCKNOW)
• Duration Of Justice: 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 27-07-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 05-02-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: DR C TIWARI
• Keywords: Period of limitation; Time period of passing order; Condonation of delay
• Section: 80G

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO.107/LKW/2015 ASSESSMENT YEAR:2008-09 M/S RAJ GRAMODYOG VIKAS SAMITI, DARSHAN NAGAR, FAIZABAD V. CIT, FAIZABAD PAN:AAAAR5799 (APPELLANT) (RESPONDENT) APPELLANT BY: DR. C. TIWARI, ADVOCATE RESPONDENT BY: SHRI. SANJAY KUMAR, CIT (D.R.) DATE OF HEARING: 27 07 2015 DATE OF PRONOUNCEMENT: 14 08 2015 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE APPELLANT AGAINST THE ORDER DATED 29.04.2008 OF THE LD. COMMISSIONER OF INCOME TAX, FAIZABAD DENYING EXEMPTION UNDER SECTION 80G OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED THE ACT). 2. BEFORE ADJUDICATING ON THE MERITS OF THE CASE, IT IS IMPORTANT TO DETERMINE WHETHER THE SUBJECT APPEAL IS MAINTAINABLE AND CAN BE ADMITTED OR NOT, AS THERE IS DELAY IN FILING OF THE APPEAL? 3. THE APPELLANT HAS RECEIVED THE ORDER OF CIT ON 9.05.2008 AND THE SUBJECT APPEAL, WHICH WAS TO BE FILED ON OR BEFORE 7.07.2008, HAS BEEN FILED ON 5.02.2015 AFTER A DELAY OF 2403 DAYS. ALONG WITH THE APPEAL, THE APPELLANT HAS FILED A CONDONATION APPLICATION AND AN AFFIDAVIT EXPLAINING THE :- 2 -: DELAY IN FILING THE APPEAL. IT IS DESIRABLE TO PLACE THE ENTIRE APPLICATION BY THE APPELLANT AS BELOW: -5 1 - 29.04.2008 2 - 09.05.2008 3 - 07.07.2008 - 2-2-2015. - 4-2-2015 4 - 5-2-2015 5 , 4. IN LIGHT OF ABOVE FACTS, THE QUESTION BEFORE US IS WHETHER THERE WAS SUFFICIENT CAUSE ON THE PART OF THE APPELLANT FOR AN INORDINATE DELAY OF 2403 DAYS IN FILING THE SUBJECT APPEAL? 5. AT THIS POINT, IT IS PERTINENT TO MENTION THAT THE CONDONATION PETITION HAS BEEN FILED UNDER SECTION 5 OF THE LIMITATION ACT, 1963. UNDER :- 3 -: SECTION 253(5) OF THE ACT, POWERS HAVE BEEN CONFERRED ON THE APPELLATE TRIBUNAL TO CONDONE THE DELAY AND ADMIT AN APPEAL WHERE IT IS SATISFIED THAT THERE WAS SUFFICIENT CAUSE FOR NOT PRESENTING THE APPEAL WITHIN THE PRESCRIBED PERIOD. SECTION 5 OF THE LIMITATION ACT, 1961 ARE PARI MATERIA TO THE PROVISIONS OF SECTION 253(5) OF THE ACT, AS BOTH THE PROVISIONS STIPULATED THAT AFTER EXPIRY OF STIPULATED PERIOD OF LIMITATION AS PER PROVISIONS OF THE RELEVANT ACT, IF THE COURT IS SATISFIED THAT THERE WAS A SUFFICIENT CAUSE FOR NOT FILING THE APPEAL WITHIN PRESCRIBED PERIOD, THEN THE APPEAL MAY BE ADMITTED FOR HEARING ON MERITS BY CONDONING THE DELAY. IN LIGHT OF THE SAME, WE ARE NOT AVERSE TO HEARING THE SUBJECT APPLICATION AND TREATING THE SAME AS FILED IN COMPLIANCE WITH PROVISIONS OF SECTION 253(5) OF THE ACT. 5. BEFORE CONSIDERING WHETHER THE REASONS FOR JUSTIFYING SUCH A HUGE DELAY ARE ACCEPTABLE OR NOT, IT IS USEFUL TO REFER TO THE FOLLOWING DECISIONS: A) IN PUNDLIK JALAM PATIL (DEAD) BY LRS. VS. EXECUTIVE ENGINEER, JALGAON MEDIUM PROJECT AND ANOTHER, (2008) 17 SCC 448 , THE QUESTION WAS WHETHER THE RESPONDENT-EXECUTIVE ENGINEER, JALGAON MEDIUM PROJECT HAD SHOWN SUFFICIENT CAUSE TO CONDONE THE DELAY OF 1724 DAYS IN FILING APPEALS BEFORE THE HIGH COURT. IN PARA 14 AND 16, THE SUPREME COURT HELD: '14. .....THE EVIDENCE ON RECORD SUGGESTS NEGLECT OF ITS OWN RIGHT FOR LONG TIME IN PREFERRING APPEALS. THE COURT CANNOT ENQUIRE INTO BELATED AND STALE CLAIMS ON THE GROUND OF EQUITY. DELAY DEFEATS EQUITY. THE COURT HELPS THOSE WHO ARE VIGILANT AND 'DO NOT SLUMBER OVER THEIR RIGHTS'. 16IT IS TRUE THAT A PARTY IS ENTITLED TO WAIT UNTIL THE LAST DAY OF LIMITATION FOR FILING AN APPEAL. BUT WHEN IT ALLOWS LIMITATION TO EXPIRE AND PLEADS SUFFICIENT CAUSE FOR NOT FILING THE APPEAL EARLIER, THE SUFFICIENT CAUSE MUST ESTABLISH THAT BECAUSE OF SOME EVENT OR CIRCUMSTANCE ARISING BEFORE THE LIMITATION PERIOD EXPIRED, IT WAS NOT POSSIBLE TO FILE THE APPEAL WITHIN TIME. NO EVENT OR CIRCUMSTANCE ARISING AFTER THE EXPIRY OF LIMITATION CAN CONSTITUTE SUFFICIENT CAUSE. IN PARA 23, 24 AND 25 OF ITS ORDER, THE SUPREME COURT FURTHER HELD: '23. IT NEEDS NO RESTATEMENT AT OUR HANDS THAT THE OBJECT FOR FIXING TIME-LIMIT FOR LITIGATION IS BASED ON PUBLIC POLICY FIXING A LIFESPAN FOR :- 4 -: LEGAL REMEDY FOR THE PURPOSE OF GENERAL WELFARE. THEY ARE MEANT TO SEE THAT THE PARTIES DO NOT RESORT TO DILATORY TACTICS BUT AVAIL THEIR LEGAL REMEDIES PROMPTLY. SALMOND IN HIS JURISPRUDENCE STATES THAT THE LAWS COME TO THE ASSISTANCE OF THE VIGILANT AND NOT OF THE SLEEPY. 24. SETTLED RIGHTS CANNOT BE LIGHTLY INTERFERED WITH BY CONDONING INORDINATE DELAY WITHOUT THERE BEING ANY PROPER EXPLANATION OF SUCH DELAY ON THE GROUND OF INVOLVEMENT OF PUBLIC REVENUE. IT SERVES NO PUBLIC INTEREST. 25. IT IS TRUE WHEN THE STATE AND ITS INSTRUMENTALITIES ARE THE APPLICANTS SEEKING CONDONATION OF DELAY, THEY MAY BE ENTITLED TO CERTAIN AMOUNT OF LATITUDE BUT THE LAW OF LIMITATION IS SAME FOR CITIZEN AND FOR THE GOVERNMENT AUTHORITIES. B) IN OFFICE OF THE CHIEF POST MASTER GENERAL & OTHERS VS LIVING MEDIA INDIA LTD & OTHERS , (2012) 348 ITR 7 (SC), THE QUESTION WAS WHETHER THE APPELLANT HAS SHOWN SUFFICIENT CAUSE FOR CONDONING THE DELAY OF 427 DAYS IN FILING THE SLPS BEFORE THE SUPREME COURT. IN PARA 12 & 13 OF ITS ORDER, THE SUPREME COURT HELD: 12) IT IS NOT IN DISPUTE THAT THE PERSON(S) CONCERNED WERE WELL AWARE OR CONVERSANT WITH THE ISSUES INVOLVED INCLUDING THE PRESCRIBED PERIOD OF LIMITATION FOR TAKING UP THE MATTER BY WAY OF FILING A SPECIAL LEAVE PETITION IN THIS COURT. THEY CANNOT CLAIM THAT THEY HAVE A SEPARATE PERIOD OF LIMITATION WHEN THE DEPARTMENT WAS POSSESSED WITH COMPETENT PERSONS FAMILIAR WITH COURT PROCEEDINGS. IN THE ABSENCE OF PLAUSIBLE AND ACCEPTABLE EXPLANATION, WE ARE POSING A QUESTION WHY THE DELAY IS TO BE CONDONED MECHANICALLY MERELY BECAUSE THE GOVERNMENT OR A WING OF THE GOVERNMENT IS A PARTY BEFORE US. THOUGH WE ARE CONSCIOUS OF THE FACT THAT IN A MATTER OF CONDONATION OF DELAY WHEN THERE WAS NO GROSS NEGLIGENCE OR DELIBERATE INACTION OR LACK OF BONAFIDE, A LIBERAL CONCESSION HAS TO BE ADOPTED TO ADVANCE SUBSTANTIAL JUSTICE, WE ARE OF THE VIEW THAT IN THE FACTS AND CIRCUMSTANCES, THE DEPARTMENT CANNOT TAKE ADVANTAGE OF VARIOUS EARLIER DECISIONS. THE CLAIM ON ACCOUNT OF IMPERSONAL MACHINERY AND INHERITED BUREAUCRATIC METHODOLOGY OF MAKING SEVERAL NOTES CANNOT BE ACCEPTED IN VIEW OF THE MODERN TECHNOLOGIES BEING USED AND AVAILABLE. THE LAW OF LIMITATION UNDOUBTEDLY BINDS EVERYBODY INCLUDING THE GOVERNMENT. 13) IN OUR VIEW, IT IS THE RIGHT TIME TO INFORM ALL THE GOVERNMENT BODIES, THEIR AGENCIES AND INSTRUMENTALITIES THAT UNLESS THEY HAVE REASONABLE AND ACCEPTABLE EXPLANATION FOR THE DELAY AND THERE WAS :- 5 -: BONAFIDE EFFORT, THERE IS NO NEED TO ACCEPT THE USUAL EXPLANATION THAT THE FILE WAS KEPT PENDING FOR SEVERAL MONTHS/YEARS DUE TO CONSIDERABLE DEGREE OF PROCEDURAL RED-TAPE IN THE PROCESS. THE GOVERNMENT DEPARTMENTS ARE UNDER A SPECIAL OBLIGATION TO ENSURE THAT THEY PERFORM THEIR DUTIES WITH DILIGENCE AND COMMITMENT. CONDONATION OF DELAY IS AN EXCEPTION AND SHOULD NOT BE USED AS AN ANTICIPATED BENEFIT FOR GOVERNMENT DEPARTMENTS. THE LAW SHELTERS EVERYONE UNDER THE SAME LIGHT AND SHOULD NOT BE SWIRLED FOR THE BENEFIT OF A FEW. CONSIDERING THE FACT THAT THERE WAS NO PROPER EXPLANATION OFFERED BY THE DEPARTMENT FOR THE DELAY EXCEPT MENTIONING OF VARIOUS DATES, ACCORDING TO US, THE DEPARTMENT HAS MISERABLY FAILED TO GIVE ANY ACCEPTABLE AND COGENT REASONS SUFFICIENT TO CONDONE SUCH A HUGE DELAY. ACCORDINGLY, THE APPEALS ARE LIABLE TO BE DISMISSED ON THE GROUND OF DELAY. 6. NOW COMING TO THE FACTS OF THE INSTANT CASE, IT IS NOTED THAT THE APPELLANT IN HIS CONDONATION APPLICATION AS WELL AS AFFIDAVIT HAS STATED THAT HE HAD RECEIVED THE CITS ORDER DATED 29.4.2008 WHEREBY THE CIT HAD DENIED THE EXEMPTION UNDER SECTION 80G OF THE ACT AND THE SAID ORDER WAS RECEIVED BY THE APPELLANT ON 9.05.2008. FURTHER, HE HAS STATED THAT HE WAS AWARE THAT THE APPEAL AGAINST THE SAID ORDER WAS DUE FOR FILING BEFORE THE APPELLATE TRIBUNAL BY 7.07.2008. IN LIGHT OF THESE TWO STATEMENTS FROM THE APPELLANT, THE FOLLOWING FACTS ARE CRYSTAL CLEAR: A) THE APPELLANT IS NOT DENYING THE RECEIPT OF THE CITS ORDER DATED 29.4.2008 AND THUS THE NON-RECEIPT OF THE ORDER IS NOT THE GRIEVANCE OF THE APPELLANT; B) THE APPELLANT IS ALSO NOT DENYING THE RECEIPT OF CITS ORDER WITHIN THE REASONABLE TIME FRAME OF PASSING THE ORDER, WHICH HE HAD RECEIVED WITHIN A PERIOD OF 10 DAYS OF PASSING THE ORDER, TO ENABLE HIM TO EXAMINE THE ORDER AND DETERMINE THE NEXT COURSE OF ACTION; C) THE APPELLANT IS ALSO NOT DENYING THE KNOWLEDGE OF THE LEGAL RECOURSE AVAILABLE TO HIM IN TERMS OF FILING AN APPEAL AGAINST :- 6 -: SUCH ORDER OF THE CIT. IN OTHER WORDS, THE APPELLANT IS FULLY AWARE OF THE REMEDY AVAILABLE TO HIM UNDER THE LAW WHERE HE CAN FILE AN APPEAL AGAINST AN ORDER WHICH HAS DENIED HIM THE NECESSARY RELIEF AS SOUGHT IN HIS APPLICATION UNDER SECTION 80G OF THE ACT. MORE IMPORTANTLY, THE APPELLANT HAD SAID CLEARLY IN HIS APPLICATION THAT HE WAS FULLY AWARE OF THE TIMELINES FOR FILING THE SUBJECT APPEAL WITHIN A PERIOD OF 60 DAYS OF RECEIPT OF THE ORDER I.E., BY 7.07.2008. 7. IN LIGHT OF ABOVE FACTS, IT IS CLEAR THAT THE APPELLANT WAS FULLY AWARE OF HIS LEGAL RIGHTS AND REMEDIES WHICH WERE AVAILABLE TO HIM BY WAY OF FILING AN APPEAL BEFORE US TO SEEK THE NECESSARY RELIEF AGAINST THE REJECTION OF HIS APPLICATION UNDER SECTION 80G OF THE ACT AND THE TIMEFRAME FOR FILING SUCH AN APPEAL. THE APPELLANT THUS CANNOT PLEAD IGNORANCE OF THE LEGAL RECOURSE AND THE TIME FRAME FOR SEEKING SUCH LEGAL RECOURSE. THE ONLY THING WHICH REMAINS TO BE EXAMINED IS THE REASON(S) FOR THE DELAY IN FILING THE SUBJECT APPEAL BY THE APPELLANT. 8. THE APPELLANT, IN HIS APPLICATION AS WELL AS AFFIDAVIT, HAS MENTIONED THAT HE HAD HANDED OVER A COPY OF THE CITS ORDER PASSED UNDER SECTION 80G OF THE ACT TO THE CLERK OF HIS COUNSEL BEFORE HE LEFT. THEREAFTER, HE MET HIS COUNSEL ON 2.2.2015 AND ENQUIRED ABOUT THE CITS ORDER, HE WAS TOLD THAT THE DOCUMENTS HAVE BEEN STRUCK UNDER THE FILES, THEN THE DOCUMENTS WERE FINALLY TRACED BY THE COUNSELS CLERK ON 4.2.2015 AND THEREAFTER, HE REQUESTED HIS COUNSEL TO FILE THE APPEAL AND APPEAL WAS FINALLY FILED ON 5.2.2015. HAVING EXAMINED THE ABOVE STATEMENT OF THE APPELLANT, IT IS UNCLEAR WHEN THE APPELLANT HANDED OVER THE CITS ORDER TO THE COUNSELS CLERK AND WHEN APPELLANT LEFT AND TO WHICH PLACE. IT IS ALSO UNCLEAR WHAT ACTIONS/STEPS APPELLANT HAD TAKEN IN THE INTERVENING PERIOD I.E. AFTER HE HAD MET HIS COUNSELS CLERK AND LEFT INITIALLY, AND WHEN HE CAME BACK TO MEET HIS COUNSEL ON 2.2.2015. THE QUESTION IS WHETHER THE SO :- 7 -: CALLED REASONS AS STATED ABOVE ARE REASONS SUFFICIENT ENOUGH TO SHOW SUFFICIENT CAUSE ON PART OF THE APPELLANT TO SEEK CONDONATION OF DELAY IN FILING THE SUBJECT APPEAL. 9. FIRSTLY, THE FACTS AS ENUMERATED ABOVE CLEARLY SHOW APPELLANTS NEGLECT OF ITS OWN RIGHT FOR A LONG TIME IN PREFERRING APPEALS. IN SUCH A CASE, THEN IT CANNOT BE EXPECTED FROM US TO INQUIRE INTO BELATED AND STALE CLAIMS ON THE GROUND OF EQUITY. WE RESPECTFULLY FOLLOW THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF PUNDLIK JALAM PATIL (SUPRA) WHEREIN IT WAS HELD THAT THE EVIDENCE ON RECORD SUGGESTS NEGLECT OF ITS OWN RIGHT FOR A LONG TIME IN PREFERRING THE APPEALS, THEN THE SETTLED RIGHTS CANNOT BE LIGHTLY INTERFERED WITH BY CONDONING INORDINATE DELAY WITHOUT THERE BEING ANY PROPER EXPLANATION OF SUCH DELAY. 10. SECONDLY, THE ONUS IS ON THE APPELLANT TO ESTABLISH AND SUBSTANTIATE THE DAY TO DAY DELAY OF 2403 DAYS. IN THIS CASE, THE APPELLANT HAS MISERABLY FAILED TO OFFER ANY SATISFACTORY EXPLANATION FOR SUCH EXTRAORDINARY DELAY OF 2403 DAYS. THE PETITION OF THE APPELLANT IS TOTALLY SILENT ON THIS ASPECT BEYOND A MERE CRYPTIC AND STANDARD REPLY THAT THE APPEAL DOCUMENTS WERE HANDED OVER TO THE COUNSELS CLERK, THE DOCUMENTS WERE NOT TRACEABLE IN THE INTERVENING PERIOD AND THEREAFTER WHEN THE DOCUMENTS WERE FINALLY TRACED, THE APPEAL WAS FILED. WE WONDER WHETHER THE APPELLANT WOULD HAVE TAKEN A SIMILAR STAND AND THE POSITION WHERE THERE ARE CRIMINAL OR OTHER CIVIL PROCEEDINGS AGAINST HIM. WOULD HE HAD WAITED FOR SUCH A LONG TIME TO REACH OUT TO HIS COUNSEL AGAIN AFTER HANDING OVER THE PAPERS INITIALLY AND WAITED FOR HIS COUNSEL TO FILE APPEAL ON HIS BEHALF. IN OUR CONSIDERED VIEW, THE ACTION OR RATHER INACTION ON PART OF THE APPELLANT SHOWS CLEAR GROSS NEGLIGENCE IN NOT TAKING THE NECESSARY STEPS IN FILING THE SUBJECT APPEAL IN TIME AND THE SAME CANNOT BE ACCEPTED. IN SUCH A CASE, THE APPELLANT HAS NO LEGAL RIGHT TO EXPECT A LIBERAL APPROACH FROM US IN CONDONING THE DELAY NOTWITHSTANDING THE MERITS, IF ANY IN THE MATTER. :- 8 -: 11. CONSIDERING THE FACT THAT THE APPELLANT HAS NEGLECTED ITS OWN RIGHT FOR A LONG TIME IN PREFERRING THE SUBJECT APPEAL ON ACCOUNT OF GROSS NEGLIGENCE, LACK OF ACTION AND IN ABSENCE OF SATISFACTORY EXPLANATION OFFERED BY THE APPELLANT FOR THE INORDINATE DELAY OF 2403 DAYS, WE ARE OF THE CONSIDERED VIEW THAT THE APPELLANT HAS MISERABLY FAILED TO GIVE ANY ACCEPTABLE AND COGENT REASONS SUFFICIENT TO CONDONE SUCH A HUGE DELAY. ACCORDINGLY, WE DECLINE TO EXERCISE OUR DISCRETION UNDER SECTION 253(5) OF THE ACT TO CONDONE THE DELAY AND THE SUBJECT APPEAL IS LIABLE TO BE DISMISSED ON THE GROUND OF DELAY. 12. IN THE RESULT, WE DISMISS THE SUBJECT APPEAL AS BARRED BY LIMITATION. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 14 TH AUGUST, 2015 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR