Shri Bhupendrabhai G. Patel, Ahmedabad V. The Income Tax Officer, Ward-3(1), Now Ward-2(2)(1), Ahmedabad

ITA 2656/AHD/2015

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 9364 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Ahmedabad
• Next Hearing Date: 09-11-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 18-09-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: P.M. PATEL
• Keywords: Condonation of delay
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 250

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER ./ ITA.NO.2656/AHD/2015 / ASSTT. YEAR: 2010-2011 SHRI BHUPENDRABHAI G. PATEL 330, NAVO VAS CHANDKHEDA AHMEDABAD. PAN : AYTPP 0023 B VS ITO, WARD - 2(2)1 AHMEDABAD. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE BY : SHRI P.M. PATEL REVENUE BY : SHRI MUDIT NAGPAL, SR.DR / DATE OF HEARING : 09/11/2016 / DATE OF PRONOUNCEMENT: 20/01/2017 $%/ O R D E R ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST O RDER OF LD.CIT(A)-10, AHMEDABAD DATED 2.3.2015 PASSED FOR THE ASSTT.YEAR 2010-11. 2. THOUGH THE ASSESSEE HAS TAKEN SIX GROUNDS OF APP EAL, BUT HIS GRIEVANCE REVOLVES AROUND A SINGLE ISSUE WHEREBY HE HAS DISPU TED LONG TERM CAPITAL GAIN COMPUTED BY THE LD.AO ON SALE OF PROPERTY AS AGAINS T LOSS SHOWN BY THE ASSESSEE. THE AO HAS MADE ADDITION OF RS.10,28,325 /- IN THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF LONG TERM CAPITAL GAIN. THE ASSESSEE IS DISSATISFIED WITH THIS ADDITION AND IN HIS GROUNDS OF APPEAL HE HAS TAKEN PERIPHERAL ARGUMENTS FOR DISPUTING THE DETERMINATION OF ALLEGE D LONG TERM CAPITAL GAIN. 3. BEFORE TAKING UP THE ISSUE AGITATED ON MERIT, I FIND THAT REGISTRY HAS POINTED THAT THE APPEAL FILED BY THE ASSESSEE IS TI ME BARRED BY 122 DAYS. IN ORDER TO EXPLAIN THE DELAY, THE ASSESSEE HAS FILED AN APPLICATION FOR ITA NO.2656/AHD/2015 2 CONDONATION OF DELAY, BUT DID NOT FILE ANY AFFIDAVI T OR ANY OTHER DOCUMENTS IN SUPPORT OF SUCH APPLICATIONS. THE APPLICATION FILE D BY THE ASSESSEE READS AS UNDER: TO, THE REGISTRAR/ASSISTANT REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, AHMEDABAD. DEAR SIR, SUB:-CONDONATION OF DELAY IN FILING APPEAL. I ENCLOSE HERE WITH AN APPEAL UNDER SECTION 253(1) OF THE INCOME-TAX ACT, 1961, AGAINST THE ORDER OF THE COMM ISSIONER (APPEALS)- 10, AHMEDABAD RELATING TO THE ASSESSMENT YEAR 2010-11 MADE UNDER SECTION 250 OF THE ACT ON THE 02-03-2015 WHICH WAS COMMUNICATED TO ME ON THE 20-03-2015 ALTHOUGH THIS APPEAL SHOULD HAVE BEEN FILED IN THE OFFICE OF THE TRIBUNAL ON OR BEFORE THE 19/06/2015, COUNTING THE PERIOD OF SIXTY DAYS FROM THE AFORESAID DATE OF COMMUNICATION OF THE ORDER BUT IT COULD NOT BE S O FILED BECAUSE MY CHARTERED ACCOUNTANTS SHRI S. P. THAKKER WAS SUFFER ING FROM ORTHOPEDIC PROBLEM FROM 12/05/2015 AND HE WAS ADVIS ED TO BED REST UP TO 25/08/2015. I, THEREFORE, PRAY THAT THE DELAY IN FILING THIS AP PEAL MAY BE CONDONED UNDER SUB-SECTION (5) OF SECTION 253 OF TH E INCOME-TAX ACT, 1961, AND THE APPEAL MAY BE ADMITTED FOR HEARING ON MERITS. PLACE:- AHMEDABAD ..... YOUR FAITHFUL LY, SD/- DATE:- BHUPENDRA G. PATEL PERMANENT ACCOUNT NO. AYTPP0023B 4. THE LD.COUNSEL FOR THE ASSESSEE WHILE IMPUGNING ORDER OF THE CIT(A) CONTENDED THAT APPEAL COULD NOT BE FILED BEFORE THE TRIBUNAL IN TIME ON ACCOUNT OF ILLNESS OF HIS TAX CONSULTANT. OTHERWISE , ACCORDING TO HIM, THE ISSUE IN DISPUTE IS SQUARELY COVERED IN FAVOUR OF THE ASS ESSEE BY THE DECISION OF THE ITA NO.2656/AHD/2015 3 HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. G AURANGINIBEN S. SODHAN REPORTED IN 367 ITR 238. ON THE OTHER HAND, THE LD .DR OPPOSED PRAYER OF ASSESSEE FOR CONDONATION OF DELAY. HE POINTED OUT THAT THE ASSESSEE HAS NOT GIVEN ANY EXPLANATION AS TO HOW DELAY HAS BEEN OCCU RRED. 5. I HAVE CONSIDERED RIVAL CONTENTIONS AND GONE TH ROUGH THE RECORD. SUB- SECTION 5 OF SECTION 253 CONTEMPLATES THAT THE TRIB UNAL MAY ADMIT AN APPEAL OR PERMIT FILING OF MEMORANDUM OF CROSS-OBJECTIONS AFTER EXPIRY OF RELEVANT PERIOD, IF IT IS SATISFIED THAT THERE WAS A SUFFICI ENT CAUSE FOR NOT PRESENTING IT WITHIN THAT PERIOD. THIS EXPRESSION SUFFICIENT CA USE EMPLOYED IN THE SECTION HAS ALSO BEEN USED IDENTICALLY IN SUB-SECTION 3 OF SECTION 249 OF INCOME TAX ACT, WHICH PROVIDES POWERS TO THE LD.COMMISSIONER T O CONDONE THE DELAY IN FILING THE APPEAL BEFORE THE COMMISSIONER. SIMILA RLY, IT HAS BEEN USED IN SECTION 5 OF INDIAN LIMITATION ACT, 1963. WHENEVER INTERPRETATION AND CONSTRUCTION OF THIS EXPRESSION HAS FALLEN FOR CONS IDERATION BEFORE HONBLE HIGH COURT AS WELL AS BEFORE THE HONBLE SUPREME CO URT, THEN, HONBLE COURT WERE UNANIMOUS IN THEIR CONCLUSION THAT THIS EXPRES SION IS TO BE USED LIBERALLY. I MAY MAKE REFERENCE TO THE FOLLOWING OBSERVATIONS OF THE HONBLE SUPREME COURT FROM THE DECISION IN THE CASE OF COLLECTOR LA ND ACQUISITION VS. MST. KATIJI & OTHERS, 1987 AIR 1353: 1. ORDINARILY A LITIGANT DOES NOT STAND TO BENEFIT BY LODGING AN APPEAL LATE. 2. REFUSING TO CONDONE DELAY CAN RESULT IN A MERITO RIOUS MATTER BEING THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTI CE BEING DEFEATED. AS AGAINST THIS WHEN DELAY IS CONDONED THE HIGHEST THA T CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERITS AFTER HEARING TH E PARTIES. 3. 'EVERY DAY'S DELAY MUST BE EXPLAINED' DOES NOT M EAN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOUR'S DELAY , EVERY SECOND'S DELAY? THE DOCTRINE MUST BE APPLIED IN A RATIONAL C OMMON SENSE PRAGMATIC MANNER. ITA NO.2656/AHD/2015 4 4. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERA TIONS ARE PITTED AGAINST EACH OTHER, CAUSE OF SUBSTANTIAL JUSTICE DE SERVES TO BE PREFERRED FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGH T IN INJUSTICE BEING DONE BECAUSE OF A NON-DELIBERATE DELAY. 5. THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONED DELIBERATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE, OR ON ACCOUNT OF MA LA FIDES. A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY. IN FACT HE RUNS A SERIOUS RISK. 6. IT MUST BE GRASPED THAT JUDICIARY IS RESPECTED N OT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GROUNDS BU T BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. 6. SIMILARLY, I WOULD LIKE TO MAKE REFERENCE TO AUT HORITATIVE PRONOUNCEMENT OF HONBLE SUPREME COURT IN THE CASE OF N.BALAKRISHNAN VS. M. KRISHNAMURTHY (SUPRA). IT READS AS UNDER: RULE OF LIMITATION ARE NOT MEANT TO DESTROY THE RI GHT OF PARTIES. THEY ARE MEANT TO SEE THAT PARTIES DO NOT RESORT TO DILA TORY TACTICS, BUT SEEK THEIR REMEDY PROMPTLY. THE OBJECT OF PROVIDING A LE GAL REMEDY IS TO REPAIR THE DAMAGE CAUSED BY REASON OF LEGAL INJURY. LAW OF LIMITATION FIXES A LIFE-SPAN FOR SUCH LEGAL REMEDY FOR THE RED RESS OF THE LEGAL INJURY SO SUFFERED. TIME IS PRECIOUS AND THE WASTED TIME W OULD NEVER REVISIT. DURING EFFLUX OF TIME NEWER CAUSES WOULD SPROUT UP NECESSITATING NEWER PERSONS TO SEEK LEGAL REMEDY BY APPROACHING T HE COURTS. SO A LIFE SPAN MUST BE FIXED FOR EACH REMEDY. UNENDING PERIOD FOR LAUNCHING THE REMEDY MAY LEAD TO UNENDING UNCERTAINTY AND CONSEQU ENTIAL ANARCHY. LAW OF LIMITATION IS THUS FOUNDED ON PUBLIC POLICY. IT IS ENSHRINED IN THE MAXIM INTEREST REIPUBLICAE UP SIT FINIS LITIUM (IT IS FOR THE GENERAL WELFARE THAT A PERIOD BE PUTT TO LITIGATION). RULES OF LIMITATION ARE NOT MEANT TO DESTROY THE RIGHT OF THE PARTIES. THEY ARE MEANT TO SEE THAT PARTIES DO NOT RESORT TO DILATORY TACTICS BUT SEEK THEIR REMEDY PROMPTLY. THE IDEA IS THAT EVERY LEGAL REMEDY MUST BE KEPT AL IVE FOR A LEGISLATIVELY FIXED PERIOD OF TIME. A COURT KNOWS THAT REFUSAL TO CONDONE DELAY WOULD R ESULT FORECLOSING A SUITOR FROM PUTTING FORTH HIS CAUSE. THERE IS NO PR ESUMPTION THAT DELAY IN APPROACHING THE COURT IS ALWAYS DELIBERATE. THIS COURT HAS HELD THAT THE WORDS 'SUFFICIENT CAUSE' UNDER SECTION 5 OF THE LIMITATION ACT ITA NO.2656/AHD/2015 5 SHOULD RECEIVE A LIBERAL CONSTRUCTION SO AS TO ADVA NCE SUBSTANTIAL JUSTICE VIDE SHAKUNTALA DEVI LAIN VS. KUNTAL KUMARI [AIR 1969 SC 575] AND STATE OF WEST BENGAL VS. THE ADMINISTRATOR , HOWRAH MUNICIPALITY [AIR 1972 SC 749]. IT MUST BE REMEMBER ED THAT IN EVERY CASE OF DELAY THERE CAN BE SOME LAPSE ON THE PART O F THE LITIGANT CONCERNED. THAT ALONE IS NOT ENOUGH TO TURN DOWN HI S PLEA AND TO SHUT THE DOOR AGAINST HIM. IF THE EXPLANATION DOES NOT S MACK 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 T HE OPPOSITE PARTY ALTOGETHER. IT MUST BE BORNE IN MIND THAT HE IS A L OOSER AND HE TOO WOULD HAVE INCURRED QUIET A LARGE LITIGATION EXPENS ES. IT WOULD BE A SALUTARY GUIDELINE THAT WHEN COURTS CONDONE THE DEL AY DUE TO LACHES ON THE PART OF THE APPLICANT THE COURT SHALL COMPENSAT E THE OPPOSITE PARTY FOR HIS LOSS. I DO NOT DEEM IT NECESSARY TO RE-CITE OR RECAPITULA TE THE PROPOSITION LAID DOWN IN OTHER DECISIONS. IT IS SUFFICE TO SAY THAT THE HONBLE COURTS ARE UNANIMOUS IN THEIR APPROACH TO PROPOUND THAT WHENEV ER THE REASONS ASSIGNED BY AN APPLICANT FOR EXPLAINING THE DELAY, THEN SUCH REASONS ARE TO BE CONSTRUED WITH A JUSTICE ORIENTED APPROACH. 7. IN THE LIGHT OF THE ABOVE, IF I LOOK TOWARDS EXP LANATION OF THE ASSESSEE, THEN IT GIVES ME AN IMPRESSION THAT THE ASSESSEE HA S TAKEN A PLEA OF ILLNESS OF SHRI S.S.THAKKAR ONLY FOR THE DAYS REMAINING TO BE EXPLAINED AFTER REDUCTION OF TIME LIMIT OF 60 DAYS AVAILABLE TO HIM UNDER THE ACT FROM TOTAL NUMBER OF DAYS THIS APPEAL CONSUMED FROM THE DATE OF COMMUNIC ATION TILL FILING BEFORE THE ITAT. ACCORDING TO THE PLEA OF THE ASSESSEE, S HRI THAKKAR WAS SUFFERING FROM ORTHOPEDIC PROBLEM AND WAS ADVISED TO BED-REST . IT DOES NOT DISCERNIBLE THAT AFTER COMMUNICATION OF THE ORDER, WHEN THE ASS ESSEE WENT TO SHRI S.P. THAKKAR FOR ADVICE. SHRI THAKKAR HAS NOT ULTIMATEL Y HANDLED THE MATTER AND THE APPEAL HAS BEEN FILED WITH HELP OF SOME OTHER T AX CONSULTANT. IT IS ALSO PERTINENT TO OBSERVE THAT THIS APPEAL WAS FILED ON 18.9.2015 WHEREAS SHRI ITA NO.2656/AHD/2015 6 THAKKER WAS ADVISED TO BED-REST UPTO 25.8.2015. WH AT HAPPENED IN THOSE 25 DAYS, WHEN ACCORDING TO THE PLEA OF THE ASSESSEE, S HRI THAKKAR WAS NOT ADVISED TO BED-REST ? SIMILARLY, THIS ORDER WAS CO MMUNICATED TO THE ASSESSEE ON 20.3.2015, WHY HE HAS BEEN WAITING TO TAKE OPINI ON FROM THE TAX CONSULTANT UPTO 12.5.2015 ? THE ASSESSEE HAS NOT ANNEXED ANY CORRESPONDENCE OR AFFIDAVIT OR ANY OTHER CERTIFICATE FROM SHRI S.P. T HAKKAR IN SUPPORT OF HIS PLEADINGS. TO MY MIND, IT IS AN EXPLANATION WHICH IS CONCOCTED FOR THE SAKE OF CONDONATION OF DELAY. I ALSO FIND THAT IN THE W RITTEN SUBMISSIONS FILED BEFORE THE TRIBUNAL, THE ASSESSEE HAS MADE REFERENC E TO THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF SAJNI LEA D AND FABRICATORS VS. COMMI. OF CENTRAL EXCISE, TAX APPEAL NO.819 OF 2014 , IN ORDER TO BUTTRESS HIS PLEA FOR CONDONATION OF DELAY. I HAVE DULY CON SIDERED THIS DECISION ALSO. I AM OF THE VIEW THAT LENGTH OF DELAY IS IMMATERIAL. I HAVE AUTHORED A LARGE NUMBER OF DECISIONS WHERE DELAY OF SIX TO SEVEN YEA RS HAVE ALSO BE CONDONED. TO MY MIND IT IS THE PLAUSIBILITY OF EXPLANATION OF THE REASONS FOR DECIDING THE ISSUE, WHETHER DELAY IS TO BE CONDONED OR NOT. TO MY MIND THE ASSESSEE HAS MADE LAME EXCUSE FOR EXPLAINING THE ALLEGED DELAY. THEREFORE, I DO NOT SEE ANY REASONS TO CONDONE THE DELAY AND ACCORDINGLY, T HIS APPEAL IS DISMISSED BEING TIME BARRED. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE COURT ON 20 TH JANUARY, 2017 AT AHMEDABAD. SD/- (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 20/01/2017