ITO (Exemptions), CHENNAI V. Research Foundation for Jainology, CHENNAI

ITA 1514/CHNY/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9424 (ITAT-CHENNAI)
• Duration Of Justice: 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 26-04-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 26-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Period of limitation; Reasonable cause; Condonation of delay

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI . , . , BEFORE SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBE R AND SHRI. G. PAVAN KUMAR, JUDICIAL MEMBER ./I.T.A. NO. 1514/MDS/2015 / ASSESSMENT YEAR : 2010-2011 INCOME TAX OFFICER, EXEMPTIONS) WARD -2, NUNGAMBAKKAM, CHENNAI 600 034. VS. M/S. RESEARCH FOUNDATION FOR JAINOLOGY SUGAN HOUSE, NEW NO.15, RAMUNUJA IYER STREET, SOWCARPET, CHENNAI 600 079. [PAN AAATR 3103M] ( / APPELLANT) ( /RESPONDENT) ! ' # / APPELLANT BY : SHRI. A.V. SREEKANTH, IRS, JCIT. $% ! ' # /RESPONDENT BY : SHRI. M. KARUNAKARAN, ADVOCATE & ' ' ( /DATE OF HEARING : 26-04-2016 ) ' ' ( /DATE OF PRONOUNCEMENT : 29-04-2016 / O R D E R PER G. PAVAN KUMAR, JUDICIAL MEMBER: THE APPEAL FILED BY THE REVENUE IS DIRECTED AG AINST ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-VII, CHENN AI IN ITA NO.248/13- 14, DT 03.07.2014 FOR THE ASSESSMENT YEAR 2010-2011 PASSED U/S.143(3) ITA NO.1514/MDS/2015. :- 2 -: AND 250 OF THE INCOME TAX ACT, 1961 (HEREIN AFTER REFERRED TO AS THE ACT). 2. BEFORE GOING INTO THE MERITS OF THE CASE, THE REVEN UE HAS PLEADED FOR CONDONATION OF DELAY OF 249 DAYS IN F ILING THE APPEAL AND EXPLAINED THE REASONS AND FILED THE AFFIDAVIT. 3. THE LD. AUTHORISED REPRESENTATIVE OF THE ASSESSEE SERIOUSLY OBJECTED TO THE CONDONATION OF DELAY AS THE DEPAR TMENT HAS FILED AFFIDAVIT WITHOUT ANY REASONABLE CAUSE AND FILED WR ITTEN SUBMISSIONS AS UNDER:- THIS DEPARTMENTAL APPEAL WAS FILED BY THE APPELLAN T AFTER A DELAY OF 249 DAYS. THE REASON FOR DELAY IS NON AVAILABILITY OF THE JUDICIAL FILE FOR THE EARLIER A SSESSMENT YEAR 2009-2010 WHICH WAS RELIED ON BY THE COMMISSIO NER OF INCOME TAX (APPEALS) IN THE PRESENT ORDER. THE ASSESSEE RESPECTFULLY SUBMITS THAT NO APPEAL AS FIL ED AGAINST THE APPELLATE ORDER FOR THE ASSESSMENT YEAR 2009- 2010. WHEN THE DEPARTMENT IS CONTENDING THAT EACH YEAR IS DIFFERENT AND THEE IS NO RES JUDICATE IN IN COME TAX MATTERS, THERE IS NO NEED FOR REFEERING TO THE APPE LLANT ORDER FOR THE EARLIER YEAR AND THE DEPAREMNT COULD HAVE PROCESSED THE CASE INDEPNENDENTLY WITHOUT ANY INFLU ENCE OF THE FINGINGS OF THE APPELLATE AUTHORITY IN THE E ARLIER ASSESSMENT YEAR. IT IS SUBMITTED THAT THE DELAY IS INORDINATE AND THERE ARE NO SUFFICIENT CAUSE FOR SU CH LONG DELAY IN FILING THE APPEALS. IN THIS CONNECTION, T HE ASSESSEE RELY ON THE DECISION OF THE SUPREME COURT IN THE CASE OF POSTMASTER GENERAL VS LIVING MEDIA INDIA LT D (2012) 3 SCC 563 WHEREIN THE HONBLE SUPREME COURT RULED THAT RED TAPISM WITHIN THE DEPARTMENT, SLOW MOVEMENT OF FILES, IMPERSONAL MACHINERY, BUREAUCRAT IC METHODOLOGY IN MAKING DECISIONS ARE NO LONGER ACCEPTABLE AS SUFFICIENT CAUSE FOR CONDONATION OF DELAY. ITA NO.1514/MDS/2015. :- 3 -: 4. WE HAVE HEARD BOTH THE PARTIES. AT THE TIME OF HEAR ING THE LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE DEP ARTMENT HAS FILED AFFIDAVIT AND PRAYED FOR CONDONATION OF DELAY EXPLA INING THE REASONS FOR DELAY IN FILING THE APPEAL AND ARGUED TO CONSIDER T HE APPEAL ON MERITS. THE CONDONATION PETITION IS AS UNDER:- I, S. THILAGAVATHY, WIFE OF SHRLB. SRIDHAR, AGED ABOUT 43 YEARS, HAVING OFFICE AT 'AAYAKAR BHAVAN', 121, M AHATMA GANDHI ROAD, CHENNAI - 34, DO HEREBY SOLEMNLY AND SINCERELY STATE AS FOLLOWS : 2. I AM THE INCOME TAX OFFICER (EXEMPTION), WARD - 2, CHENNAI AND WELL ACQUAINTED WITH THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. IT IS SUBMITTED THAT THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - VII, CHENNAI WAS PASSED IN ITA NO.248/13-14 DATED 03.07.2014 FOR THE ASSESSMENT YEAR 2010-11. THE ORDER OF THE LEARNED C IT(A)- VII WAS COMMUNICATED ON 21.08.2014. IN THAT ORDER, THE LEARNED CLT(A) HAD PLACED RELIANCE ON THE ORDER OF HIS PREDECESSOR IN THE ASSESSEE'S OWN CASE FOR THE ASSE SSMENT YEAR 2009-10 (ITA NO.643 I 11-12 DATED 27.11.2012). IN ORDER TO PROCESS THE ORDER UNDER CONSIDERATION PERT AINING TO THE ASSESSMENT YEAR 2010-11, THE FATE OF THE EARLIE R ORDER OF THE LEARNED CIT(A), FOR THE ASSESSMENT YEAR 2009-10 , WAS REQUIRED TO BE ASCERTAINED. HOWEVER, DUE TO DECENTR ALISATION OF THE JUDICIAL SECTION, THE RELEVANT JUDICIAL FOLD ER FOR THE ASSESSMENT YEAR 2009-10 COULD NOT BE TRACED. AFTER EXHAUSTIVELY SEARCHING THE EXEMPTION SECTION AS WEL L AS THE JUDICIAL SECTION, THE JUDICIAL FOLDER FOR THE ASSES SMENT YEAR 2009-10 WAS LOCATED IN THE RECORD ROOM OF THE JUDIC IAL SECTION. IT MAY BE NOTED, IN THIS REGARD, CENTRALIS ED PROCESSING OF CLT(A)'S ORDERS WAS DONE IN THE OFFIC E OF THE CIT (JUDICIAL) FOR MORE THAN THREE DECADES AND ONLY RECENTLY, DECENTRALISATION OF THE JUDICIAL SECTION TOOK PLACE AND THE PROCESSING OF THE CIT(A)'S ORDERS STARTED TO TAKE P LACE IN THE OFFICE OF THE JURISDICTIONAL CIT ITSELF, WHICH ADDE D TO THE CONFUSION IN LOCATING THE JUDICIAL FOLDER FOR THE A SSESSMENT YEAR 2009-10. IMMEDIATELY, AFTER TRACING THE SAID F OLDER FOR THE ITA NO.1514/MDS/2015. :- 4 -: ASSESSMENT YEAR 2009-10, THE ORDER OF THE LEARNED C IT(A)-VII FOR THE ASSESSMENT YEAR 2010-11 WAS PROCESSED AND A DECISION TO FILE FURTHER APPEAL BEFORE THE HON'BLE ITAT, CHENNAI, WAS TAKEN AND THE APPEAL PAPERS WERE PREPA RED FOR SUBMISSION BEFORE THE HON'BLE TRIBUNAL. THE SAME AR E BEING SUBMITTED AFTER A DELAY OF 249 DAYS. 4. IT IS SUBMITTED THAT THE DELAY IN FILING APP EAL IS NEITHER WANTON NOR WILFUL, BUT FOR THE REASONS AFORESAID. 5. THE HON'BLE TRIBUNAL'S KIND ATTENTION IS ALSO INV ITED TO THE HON'BLE APEX COURT'S DECISION IN THE CASE OF CO LLECTOR, LAND ACQUISITION V. MST. KATIJI (1987)(167 ITR 471) (SC), WHEREIN, IT HAS BEEN HELD THAT 'ORDINARILY, A LITIG ANT DOES NOT STAND TO BENEFIT BY LODGING LATE APPEAL'. 6. IT IS ALSO SUBMITTED THAT THE HON'BLE JURISDICT IONAL HIGH COURT'S DECISION IN THE CASE OF SAIYANA WAREHOUSE ( P) LTD. V. ACIT, COM. CIR.-VI{1), CHENNAI (TCA NO.463 OF 2014 ) MAY BE TAKEN OF. 7 KIND ATTENTION IS ALSO INVITED TO THE THIRD MEMB ER ORDER OF THE HON'BLE CHENNAI TRIBUNAL IN A TRUST CASE, VI Z., MIS. PEOPLE EDUCATION AND ECONOMIC DEVELOPMENT SOCIETY (PEEDS) (100 ITD 87) (CHENNAI)(TM ), WHEREIN, DELAY OF 617 DAYS WAS CONDONED AFTER THE REASON FOR THE DELAY WA S SUFFICIENTLY EXPLAINED. 8. IN VIEW OF THE ABOVE, IT IS PRAYED THAT THE DELAY IN FILING THE APPEAL MAY BE CONDONED U/S. 253(5) OF THE I.T. ACT, 1961 AND THE APPEAL MAY BE HEARD ON MERITS. AT THE TIME OF HEARING, THE LD. DEPARTMENTAL REPRES ENTATIVE COULD NOT EXPLAIN THE CIRCUMSTANCES UNDER WHICH THE APPEAL FI LED BELATEDLY AND EMPHASIZING THE CAUSE OF DELAY IN FILING THE APPEAL IS NEITHER WILLFUL NOR WANTON. PRIME FACIE THE DEPARTMENT HAS MADE AN IN ORDINATE DELAY IN FILING APPEAL, THE CO-ORDINATE BENCH OF THE TRIBUNA L IN THE CASE OF JOINT ITA NO.1514/MDS/2015. :- 5 -: COMMISSIONER OF INCOME TAX VS. TRACTORS & FARMS EQ UIPMENTS LTD 104 ITD 149 AT PAGE NO.150 WHEREIN IT WAS OBSERVED AS U NDER :- A DISTINCTION MUST BE MADE BETWEEN A CASE WHERE THE DELAY IS INORDINATE AND A CASE WHERE THE DELAYS IS OF A FEW DAYS. WHEREAS IN THE FORMER CASE, THE CONSIDERATION OF PR EJUDICE TO THE OTHER SIDE WILL BE A RELEVANT FACTOR, SO THE CASE C ALLS FOR A MORE CAUTIOUS APPROACH, IN THE LATTER CASE, NO SUCH CONS IDERATION MAY ARISE AND SUCH A CASE DESERVES A LIBERAL APPROACH. NO HARD AND FAST RULE CAN BE LAID DOWN IN THIS REGARD. THE COUR T HAS TO EXERCISE THE DISCRETION ON THE FACTS OF EACH CASE, KEEPING I N MIND THAT IN CONSIDERING THE EXPRESSION SUFFICIENT CAUSE THE P RINCIPLE OF ADVANCING SUBSTANTIAL JUSTICE IS OF PRIME IMPORTANC E. THE LAW ASSISTS THOSE WHO ARE VIGILANT, NOT THOSE W HO SLEEP OVER THEIR RIGHTS. THIS PRINCIPLE IS EMBODIED IN THE DI CTUM: VIGILANTIBUS NON DOEMIENTIBUS JURA SUBVENIUNT. THE DELAY CANNOT BE CONDONED SIMPLY BECAUSE THE APP ELLANTS CASE IS HARD AND CALLS FOR SYMPATHY OR MERELY OUT O F BENEVOLENCE TO THE PARTY SEEKING RELIEF. IN GRANTING THE INDULG ENCE AND CONDONING THE DELAY, IT MUST BE PROVED BEYOND THE S HADOW OF DOUBT THAT THE APPELLANT WAS DILIGENT AND WAS NOT G UILTY OF NEGLIGENCE, WHATSOEVER. THE SUFFICIENT CAUSE WITHI N THE CONTEMPLATION OF THE LIMITATION PROVISIONS MUST BE A CAUSE WHICH IS BEYOND THE CONTROL OF THE PARTY INVOKING THE AID OF THE PROVISIONS. THE CAUSE FOR THE DELAY IN FILING THE APPEAL, WHICH BY DUE CARE AND ATTENTION, COULD HAVE BEEN AVOIDED, CA NNOT BE A SUFFICIENT CAUSE WITHIN THE MEANING OF THE LIMITATI ON PROVISION. WHERE NO NEGLIGENCE OR INACTION, OR WANT OF BONAFID ES CAN BE IMPUTED TO THE APPELLANT, A LIBERAL CONSTRUCTION OF THE PROVISIONS HAS TO BE MADE IN ORDER TO ADVANCE SUBSTANTIAL JUST ICE. SEEKERS OF JUSTICE MUST COME WITH CLEAN HANDS. 5. IN OUR OPINION THE CIRCUMSTANCES EXPLAINED IN THE C ONDONATION PETITION COULD NOT CONVINCE US AND THERE SEEMS TO BE A GROSS NEGLIGENCE ON THE PART OF THE DEPARTMENT WERE NO PRIORITY WAS FIXED AND SUCH LAPSES CANNOT BE CONDONED. FOLLOWING THE DECISIONS OF TRACTORS & FARMS EQUIPMENTS LTD (SUPRA) AND OFFICE OF THE CHIEF POS TMASTER GENERAL & ORS. ITA NO.1514/MDS/2015. :- 6 -: VS. LIVING MEDIA INDIA LTD & ANR (SUPRA) WERE IT WAS HELD THAT IT IS NOT IN DISPUTE THAT THE PERSON(S) CONCERNED WERE WELL AWAR E OF CONVERSANT WITH THE ISSUES INVOLVED INCLUDING THE PRESCRIBED PERIOD OF LIMITATION FOR TAKING UP THE MATTER BY WAY OF FILING A SPECIAL LEAVE PETI TION IN THIS COURT. THEY CANNOT CLAIM THAT THEY HAVE A SEPARATE PERIOD OF LI MITATION WHEN THE DEPARTMENT WAS POSSESSED WITH COMPETENT PERSONS FAM ILIAR WITH COURT PROCEEDINGS. IN THE ABSENCE OF PLAUSIBLE AND ACCEP TABLE EXPLANATION, WE ARE POSING A QUESTION WHY THE DELAY IS TO BE CONDON ED MECHANICALLY MERELY BECAUSE THE GOVERNMENT OR A WING OF THE GOVE RNMENT IS A PARTY BEFORE US. THOUGH WE ARE CONSCIOUS OF THE FACT THA T IN A MATTER OF CONDONATION OF DELAY WHEN THERE WAS NO GROSS NEGLIG ENCE OR DELIBERATE INACTION OR LACK OF BONAFIDE, A LIBERAL CONCESSION HAS TO BE ADOPTED TO ADVANCE SUBSTANTIAL JUSTICE, WE ARE OF THE VIEW THA T IN THE FACTS AND CIRCUMSTANCES, THE DEPARTMENT CANNOT TAKE ADVANCE O F VARIOUS EARLIER DECISIONS. IT IS THE RIGHT TIME TO INFORM ALL THE G OVERNMENT BODIES, THEIR AGENCIES AND INSTRUMENTALITIES THAT UNLESS THEY HAV E REASONABLE AND ACCEPTABLE EXPLANATION FOR THE DELAY AND THEE WAS B ONAFIDE EFFORT, THERE IS NO NEED TO ACCEPT THE USUAL EXPLANATION THAT THE FI LE 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 DILIG ENCE AND COMMITMENT. CONDONATION OF DELAY IS AN EXCEPTION AND SHOULD NOT BE USED AS AN ITA NO.1514/MDS/2015. :- 7 -: ANTICIPATED BENEFIT FOR GOVERNMENT DEPARTMENTS. THE NEGLIGENCE, INACTION AND INORDINATE DELAY IN FILING THE APPEAL CANNOT BE CONDONED. LAW ASSISTS THOSE WHO ARE VIGILANT AND NOT THOSE WHO SLEEP OVER THEIR RIGHTS. WE CONSIDERING THE FACTS AND CIRCUMSTANCES EXPLAINED I N AFFIDAVIT AND ALSO IN THE LIGHT JUDICIAL DECISIONS, DECLINE TO CONDONE TH E DELAY IN FILING THE APPEAL AND ACCORDINGLY DISMISS THE APPEAL AS UNADMITTED. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISS ED. ORDER PRONOUNCED ON FRIDAY, THE 29TH DAY OF APRIL , 2016 AT CHENNAI. SD/- SD/- ( . ! ) (A. MOHAN ALANKAMONY) # $% / ACCOUNTANT MEMBER ( & . ' ( ) (G. PAVAN KUMAR) ) $% / JUDICIAL MEMBER *& / CHENNAI + / DATED:29TH APRIL, 2016. KV , ' $'./ 0/' / COPY TO: 1 . ! / APPELLANT 2. $% ! / RESPONDENT 3. 1' () / CIT(A) 4. 1' / CIT 5. /4 5 $'6 / DR 6. 5 7 8 & / GF