Hiteshbhai Mohanbhai Chheta, SURAT V. ACIT Circle 3(2) surat, Surat

ITA 237/SRT/2024

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 2170 (ITAT-SURAT)
• Duration Of Justice: 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 05-05-2024
• Assessment Year: misc
• Appeal Filed On: 28-02-2024
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Period of limitation; Corroborative evidences; Condonation of delay
• Section: 143(3); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER & SHRI BIJAYANANDA PRUSETH, ACCOUNTANT MEMBER आयकर अपील सं./ITA No.237/SRT/2024 (Assessment Year: 2016-17) (Physical Hearing) Hiteshbhai Mohanbhai Chheta, A-401, the Candlewood, Near Palladium, Karada Road, Katargam Surat City, Surat, Katargam S.O., 395004, Gujarat Vs. The ACIT, Circle – 3(2), Surat. èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AAGPL9540E (Appellant) (Respondent) Appellant by Shri Bharat Kumar, CA Respondent by Shri J. K. Chandnani, Sr. DR Date of Hearing 06/05/2024 Date of Pronouncement 28/05/2024 आदेश / O R D E R PER BIJAYANANDA PRUSETH, AM: This appeal emanates from the order dated 26.07.2021 passed under section 250 of the Income-tax Act, 1961 (in short, ‘the Act’) by the Learned Commissioner of Income-tax (Appeals), [in short, ‘the Ld. CIT(E)’], National Faceless Appeal Centre (NFAC), Delhi for the assessment year (AY) 2016-17. 2. The grounds of appeal raised by the assessee are as under: “1. On the facts and circumstances of the case in law, the Ld. CIT(A) has erred in not providing adequate opportunity for hearing of the case. 2. On the facts and circumstances of the case in law, the Ld. CIT(A) has erred in confirming disallowance of Interest expenses of Rs.16,18,585/-. 3. The assessee craves leave to add, alter or amend the existing grounds of appeal on or before date of hearing.” 2 ITA No.237/SRT/2024 Hiteshbhai Mohanbhai Chheta 3. The appeal filed by the assessee is delayed by 942 days. The assessee has filed an affidavit for condonation of delay in filing of appeal before this Tribunal. In the affidavit, it is stated that the appellant is 50 years old and has filed his return of income for AY.2016-17 on 29.07.2016. The Assessing Officer passed an assessment order on 13.12.2018 u/s 143(3) of the Act. The appellant has received the CIT(A)’s notice on 22.01.2021, 21.07.2021 on E- mail Ids [e-mail] and [e-mail]. These E-mail IDs were not in the appellant’s access and therefore he could not comply with the notices. The Ld. CIT(A) has passed the order on 26.07.2021 which was not known to the appellant. It is also submitted that notices came in period of Covid-19 pandemic and there was relaxation by the Hon'ble Apex Court till 15.03.2021. He filed Income-tax return on 31.12.2020 and informed the Department about his new E-mail ID [e-mail]. He received the recovery notice on 05.12.2023 and informed to his tax consultant/CA, Shri Hitesh Sharma who advised him not to file appeal before ITAT. Hence, the appellant’s mistake not to file appeal after recovery notice was not intentional. The assessee again went to another tax consultant and the new consultant advised him to file the appeal before ITAT for considering the merit of the case. Reliance has also been placed on the decision of the Hon'ble Supreme Court in the case of Collector, Land Acquisition vs. Mst. Katiji & Ors (1987) 167 ITR 471 (SC), wherein it was stated that “when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side 3 ITA No.237/SRT/2024 Hiteshbhai Mohanbhai Chheta cannot claim to have vested right in injustice being done because of a non- deliberate delay.” Before us, Ld. AR of the assessee relied on the affidavit and submitted that assessee has explained the sufficient cause/reason to condone the delay. Hence, this delay may be condoned in the interest of justice. 4. On the other hand, Learned Senior Departmental Representative (Ld. Sr. DR) for the Revenue strongly opposed the request for condonation of delay. The Ld. Sr. DR submitted that the reasons given by the assessee would not constitute “sufficient cause” within the meaning of section 253(3) of the Act. 5. We find that there is delay of 942 days and the simple explanation given that the appellant did not receive the order because E-mail Id was not in his access, which is not acceptable. Even after excluding the period of relaxation granted by the Hon'ble Supreme Court, there was still further delay in filing the appeal. The relaxation was till 15.03.2021 but the appellant has filed the appeal on 29.02.2024 before this Tribunal. 6. We have heard both parties on this preliminary issue of condonation of delay. We have also deliberated on the decision relied on by the Ld. AR. There was a delay of 942 days in filing appeal before the ITAT. In the affidavit, the appellant has stated that the Ld. CIT(A) issued the notices on 22.01.2021, 21.07.2021 and 21.07.2021 on E-mail Id [e-mail] and [e-mail]. However, it is seen that Ld. CIT(A) had issued the notices on 21.01.2021, 31.05.2021 and 06.07.2021. The appellant has stated 4 ITA No.237/SRT/2024 Hiteshbhai Mohanbhai Chheta that the E-mail Ids were not in his access but on perusal of Form 35, we find that the appellant has given the same E-mail Id [e-mail]. The Form 35 has been verified by assessee himself. Therefore, the appellant cannot take the plea that it was not in his access. The appellant further stated that he received the recovery notice on 05.12.2023 after which he informed his new CA, Shri Hitesh Sharma who advised him not to file appeal before ITAT. Subsequently, the appellant consulted another CA, Shri Bharat Kumar who advised him to file the appeal. The reasons given by the assessee are general, self-serving and not convincing. He has stated that his CA, Shri Hitesh Sharma advised him not to file the appeal before the Tribunal. However, no supporting evidence in the form of confirmation letter or affidavit of Shri Hitesh Sharma has been enclosed to substantiate his claim. As stated earlier, the assessee himself had given the E-mail Id in his Form 35. He has not given any evidences regarding the change in the E- mail ID to the Department. 7. The Ld. AR relied upon the decision of the Hon'ble Supreme Court in the case of Collector, Land Acquisition vs. Mst. Katiji (supra), which was pronounced on 19.02.1987. There was delay only 4 days in the said case. However, we find that in the subsequent decisions, namely, (i) P. K. Ramachandran vs State of Kerala & Anr. (1997) 7 SCC 556, (ii) Pundik Jalam Patil vs. Executive Engineers, Jalgaon Medium Project, (2008) 17 SCC 448 and (iii) Basawaraj and Anr vs. Special Land Acquisition Officer, (2013) 14 SCC 81, (iv) Pathapati Subba Reddy (dies) By L. Rs. & Ors. Vs The Special 5 ITA No.237/SRT/2024 Hiteshbhai Mohanbhai Chheta Deputy Collector (LA), SLP(C) No.31248 of 2018 (SC), dated 08.04.2024, it has been held that condonation of delay should not be granted only on the ground that ordinarily a litigant does not stand to benefit by lodging an appeal late. 8. The Hon'ble Supreme Court in the case of Basawaraj (supra) held that it is a settled legal position that Article 14 of the Constitution is not meant to perpetuate the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. The Hon'ble Court summarized the law on the subject issue by stating that where a case has been presented in the Court beyond limitation of time, the applicant has to explain as to what was the “sufficient cause” which means an adequate and enough reason, which prevented him to approach the Court within the limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. 9. We find that in a recent decision pronounced on 28.04.2024, in the case of Pathapati Subba Reddy (dies) & Ors. vs. The Special Deputy Collector (LA), in SLP (Civil) No. 31248 of 2018 (SC), the Hon'ble Supreme Court referred to and discussed various decisions of Hon'ble Supreme Court namely (i) Bhag Mal (Alias) Ram Bux & Ors vs. Munshi (Dead) by LRs & Ors (2007) 11 SCC 285 (SC), (ii) Collector, Land Acquisition vs. Mst. Katiji (supra) (iii) Ramlal, Motilal and Chhotelal vs. Rewa Coalfields Ltd. (1962) 2 SCR 6 ITA No.237/SRT/2024 Hiteshbhai Mohanbhai Chheta 762, (iv) Maqbul Ahmad and Ors vs. Onkar Pratap Narain Singh and Ors, AIR 1935 PC 85 (v) Brijesh Kumar and Ors vs. State of Haryana and Ors. 2014 (4) SCALE 50 (vi) Lanka Venkateswarlu vs. State of Andhra Pradesh & Ors, (2011) 4 SCC 363 (vii) State of Jharkhand & Ors vs. Ashok Kumar Chokhani & Ors. AIR 2009 SC 1927 (viii) Basawaraj and Anr. (supra) and held as under: “7. The law of limitation is founded on public policy. It is enshrined in the legal maxim “interest reipublicae ut sit finis litium” i.e. it is for the general welfare that a period of limitation be put to litigation. The object is to put an end to every legal remedy and to have a fixed period of life for every litigation as it is futile to keep any litigation or dispute pending indefinitely. Even public policy requires that there should be an end to the litigation otherwise it would be a dichotomy if the litigation is made immortal vis-a- vis the litigating parties i.e. human beings, who are mortals.” 10. It has also discussed the case of Collector, Land Acquisition vs. Mst. Katiji (supra) relied upon by Ld. AR, and held that the phrases “liberal approach”, “justice-oriented approach” and “cause of advancement of substantial justice” cannot be employed to defeat the law of limitation. For ready reference of equality, the same is reproduced hereunder: “16. ................In Collector, Land Acquisition, Anantnag and Ors. vs. Katiji and Ors.2, this Court in advocating the liberal approach in condoning the delay for ‘sufficient cause’ held that ordinarily a litigant does not stand to benefit by lodging an appeal late; it is not necessary to explain every day’s delay in filing the appeal; and since sometimes refusal to condone delay may result in throwing out a meritorious matter, it is necessary in the interest of justice that cause of substantial justice should be allowed to prevail upon technical considerations and if the delay is not deliberate, it ought to be condoned. Notwithstanding the above, howsoever, liberal approach is adopted in condoning the delay, existence of ‘sufficient cause’ for not filing the appeal in time, is a condition precedent for exercising the discretionary power to condone the delay. The phrases ‘liberal approach’, ‘justice- (1987) 2 SCC 107 = AIR 1987 SC 1353 oriented approach’ and cause for the advancement of ‘substantial justice’ cannot be employed to defeat the law of limitation so as to allow stale matters or as a matter of fact dead 7 ITA No.237/SRT/2024 Hiteshbhai Mohanbhai Chheta matters to be revived and re-opened by taking aid of Section 5 of the Limitation Act.” 11. After discussion on various cases in its order, the Hon'ble Supreme Court at Para 26, has summed up the law laid down by it as under: “26. On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that: (i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself; (ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time; (iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally; (iv) In order to advance substantial justice, though liberal approach, justice- oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act; (v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence; (vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal; (vii) Merits of the case are not required to be considered in condoning the delay; and (viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision.” 12. The Hon'ble Supreme Court refused to interfere with the decision of the Hon'ble High Court refusing to condone the delay in filing the appeal. 8 ITA No.237/SRT/2024 Hiteshbhai Mohanbhai Chheta 13. The facts and circumstances of the present case are similar. The assessee has filed the appeal after a delay of 942 days. In the affidavit for condonation of delay, the assessee has also referred to the relaxation of time granted by the Hon'ble Supreme Court in Suo Motu Writ Petition (Civil) No.3 of 2020, dated 10.01.2022. It is seen that the Hon'ble Supreme Court has extended the period of limitation for 90 days from 01.03.2022 for the cases where the limitation would have expired during the period between 15.03.2021 till 28.02.2022. In case of the assessee, the order under section 250 of the Act was passed on 26.07.2021. Therefore, in normal situation, the assessee would have got 60 days to file the appeal i.e. on or before 26.09.2021. In view of the relaxation by the Hon'ble Supreme Court, the period available to the assessee was till 01.06.2022. However, the assessee has filed the appeal after 18 months on 29.02.2024. Hence, the explanation given by the assessee in this regard is not at all acceptable. The appellant has also stated that the Ld. CIT(A) issued the notices on E-mail Id [e-mail] and [e-mail], to which the assessee had no access. But, on perusal of Form 35, we find that the appellant himself has given the same E-mail Id [e-mail], which has been duly verified by him. Therefore, the appellant cannot take the plea that it was not in his access. Such explanation is not believable and acceptable. Such assertion in only a feeble attempt to explain away the inordinate delay in filing the appeal. It is also stated that after receipt of recovery notice on 05.12.2023, he informed his CA, Shri Hitesh Sharma who advised him not to 9 ITA No.237/SRT/2024 Hiteshbhai Mohanbhai Chheta file appeal before ITAT. Subsequently, the appellant consulted another CA, Shri Bharat Kumar who advised him to file the appeal. The appellant has not given any written confirmation or affidavit of Shri Hitesh Sharma, CA to support his claim. Why would a CA dissuade an assessee from pursuing legal remedy granted to him under the statute? It is thus crystal clear that the appellant was grossly negligent, inactive and casual in filing of appeal. Such negligent, casual and lackadaisical approach to file appeal cannot constitute “sufficient cause” within the meaning of section 253(5) of the Act. 14. In view of the above facts and respectfully following the authoritative precedents cited supra, we refuse to condone the delay, requested by the assessee. Since, delay has not been condoned; it becomes academic in nature to discuss the merit of the case. Hence, the other grounds are not discussed. 15. In the result, appeal filed by the assessee in dismissed. Order pronounced on 28/05/2024 in the open court. Sd/- Sd/- (PAWAN SINGH) (BIJAYANANDA PRUSETH) JUDICIAL MEMBER ACCOUNTANT MEMBER Surat Ǒदनांक/ Date: 28/05/2024 SAMANTA Copy of the Order forwarded to: 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat