The Comptroller of Kerala Agricultural University, Trichur V. The ACIT, Cir-1,Trichur, Trichur

ITA 42/COCH/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0321 (ITAT-COCHIN)
• Duration Of Justice: 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 15-11-2018
• Assessment Year: 2013-2014
• Appeal Filed On: 12-02-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A S BINDHU
• Assessee Lawyers: MARY JOSSY
• Keywords: Period of limitation; Condonation of delay; Bonafide mistake; TDS

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFOR E S/ SHRI CHANDRA POOJARI , AM & GEORGE GEORGE K., J M I .T . A. NO S . 42&43 / COCH/ 201 8 ASSESSMENT YEAR S : 2013 - 14 & 2014 - 15 THE C OMPTROLLER, KERALA AGRICULTURAL UNIVERSITY, VELLAN I KKARA, THRISSUR. PAN :AAAJR 0762J] VS. THE ASSISTANT COMMISSIONER OF INCOME - TAX (TDS), CPC, GHAZIABAD. (ASSESSEE - APPELLANT) (REVENUE - RESPON DENT) A SSESSEE BY MS. MARY JOSSY, A DV. REVENUE BY SMT. A.S. BINDHU, DR D ATE OF HEARING 15 / 11 /2018 DATE OF PRONOUNCEMENT 16 / 11 /2018 O R D E R PER CHANDRA POOJARI, AM: TH ESE APPEAL S FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE DIFFERENT ORDER S OF THE CIT (A), THRISSUR RELATING TO LATE FILING OF FEE U/S. 234E OF THE ACT AND PERTAIN TO 2013 - 14 AND 2014 - 15. 2. PRIMARILY, THERE WAS A DELAY OF 407 DAYS IN FILING TH E APPEALS BEFORE THE TRIBUNAL. THE ASSESSEE FILED PETITIONS FOR CONDONATION OF DELAY ALONG WITH AFFIDAVITS WHICH ARE SIMILAR IN NATURE IN THESE CASES. THE ASSESSEE EXPLAINED THE REASON FOR THE DELAY IN FILING THES E APPEALS BEFORE THE TRIBUNAL THAT THE APPELLATE I.T.A. NOS. 4 2 TO 4 3/COCH/2018 2 ORDER WAS SERVED ON THE ASSESSEE ON 01/11/2016. IT WAS SUBMITTED THAT TH E APPEAL S THEREFORE OUGHT TO HAVE BEEN FILED ON OR BEFORE 31/12/2016. THE ASSESSEE HAD TO GET GOVERNMENT SANCTION FOR THE FILING OF TH E APPEALS BEFORE THE TRIBUNAL. HENCE, THERE WAS A DELAY IN OBTAINING THE SAID SANCTION AND THERE WAS FURTHER DELAY CAUSED IN GETTING APPROPRIATE LEGAL ADVICE. THE ASSESSEE SUBMITTED THAT THEY HAVE GOOD CA S E TO SUCCEED IN APPEAL. THE CONDUCT OF THE ASSES SEE IS NEITHER WILFUL NOR CONTUMACIOUS. THEREFORE, IT WAS PRAYED THAT THE TRIBUNAL MAY CONDONE THE DELAY OF 407 DAYS IN FILING THE APPEALS. IT WAS SUBMITTED THAT IF THE ORDERS ARE NOT GRANTED, THE ASSESSEE WOULD BE PUT TO IRREPARABLE INJURY, LOSS AND HAR DSHIP. 3. THE LD. AR ALSO SUBMITTED BEFORE US THAT THE ASSESSEE IS HAVING A GOOD CASE ON MERIT AND THE ISSUE IN DISPUTE IS COVERED IN FAVOUR OF THE ASSESSEE BY WAY OF DECISION OF THIS TRIBUNAL. 4. AS SEEN FROM THE REASON S ADVANCED BY THE ASSESSEE I N ITS CONDONATION PETITION S , THE ASSESSEE SOUGHT SANCTION FOR FILING OF THE APPEALS BEFORE TH IS TRIBUNAL FROM COMPTROLLER, KERALA AGRICULTURAL UNIVERSITY VIDE LETTER DATED 05/11/2016. THE COMPTROLLER, KAU, ACCORDED PERMISSION TO FILE THE APPEALS BEFORE TH IS TRIBUNAL VIDE THEIR LETTER DATED 22/11/2017. HOWEVER, THE ASSESSEE HAS NOT EXPLAINED AS TO WHY SUCH A LONG TIME WAS TAKEN BY THE COMPTROLLER, KAU TO GRANT SANCTION TO FILE THE APPEALS BEFORE THIS TRIBUNAL. IN FACT, THERE IS EVEN I.T.A. NOS. 4 2 TO 4 3/COCH/2018 3 NO ATTEMPT TO EXPLAIN THE SAME. EVEN IF WE CONSIDER THAT THERE IS VALID REASON FOR DELAY IN GRANTING PERMISSION TO THE ASSESSEE BY THE COMPTROLLER, KAU TO FILE THE APPEALS BEFORE THIS TRIBUNAL, T HE ASSESSEE COULD HAVE FILED THE APPEALS IMMEDIATELY AFTER GETTING PERMISSION FROM THE COMPTROLLER, KAU. AS SEEN FROM THEIR LETTER, PERMISSION WAS GRANTED TO THE ASSESSEE TO FILE THE APPEALS VIDE THEIR LETTER DATED 22/11/2017. HOWEVER, THE ASSESSEE TOOK FURTHER TIME TO FILE THE APPEALS BEFORE THIS TRIBUNAL AND IT WAS FILED ONLY ON 12/ 02/2018. IN OUR OPINION, A PERSON WHO IS HANDLING THE MATTER WOULD UNDOUBTEDLY BE CONSCIOUS OF THE FACT THAT THE TIME TO FILE THE APPEALS IS RUNNING AGAINST THE ASSESSEE AND THERE MUST BE PROPER EXPLANATION IN THE CONDONATION PETITIONS THAT IT WAS TAKING STEPS TO EXPEDITE THE FILING OF THE APPEALS BEFORE TH E TRIBUNAL . THE REASON EXPLAINED BY THE ASSESSEE IN THESE CONDONATION PETITIONS IS TOO GENERAL AND IT DOES NOT EXPLAIN THE DELAY EXCEPT STATING THAT IT WAS DUE TO DELAY IN GETTING PERMISSION FROM THE CO MPTROLLER, KAU. THUS, WE ARE NOT SATISFIED WITH THE REASONS SET OUT IN THE AFFIDAVITS FILED BEFORE THE TRIBUNAL SO AS TO CONDONE THE DELAY IN FILING THE APPEALS. 5 . THE APEX COURT IN THE CASE OF OFFICE OF THE CHIEF POST MASTER GENERAL AND OTHERS V S. L IVING MEDIA INDIA LTD, AND ANOTHER, REPORTED IN (2012) 348 ITR 7 (SC) WHILE DEALING WITH THE CONDONATION OF DELAY APPLICATION BY THE STATE, HAS OBSERVED AS UNDER : - I.T.A. NOS. 4 2 TO 4 3/COCH/2018 4 '12. IT IS NOT IN DISPUTE THAT THE PERSON(S) CONCERNED WERE WELL AWARE OR CONVERSANT WITH T HE 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 COMPE TENT 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. THOU GH 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 FA CTS 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 BEIN G 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 ACCEPTAB LE EXPLANATION FOR THE DELAY AND THERE WAS 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 DEPARTMENT S 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 S AME 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 GI VE ANY ACCEPTABLE AND COGENT REASONS SUFFICIENT TO CONDONE SUCH A HUGE DELAY.' 6. IN OUR OPINION, A PARTY CANNOT SLEEP OVER ITS RIGHT IGNORING THE S TATUTE OF LIMITATION AND WITHOUT GIVING SUFFICIENT AND REASONABLE EXPLANATION FOR THE DELAY, EXCEPT ITS A PPEAL TO BE ENTERTAINED MERELY BECAUSE THE ASSESSEE IS A UNIVERSITY , A GOVERNMENT ORGANISATION . APPEALS FILED BEYOND A PERIOD OF LIMITATION HAVE BEEN I.T.A. NOS. 4 2 TO 4 3/COCH/2018 5 ENTERTAINED BY US WHERE THE DELAY HAS BEEN SUFFICIENTLY EXPLAINED SUCH AS IN CASES OF BONAFIDE MISTAKE . TH US , THE ASSESSEE SHOULD BE WELL AWARE OF THE STATUTORY PROVISIONS AND THE PERIOD OF LIMITATION AND SHOULD PURSUE ITS REMEDIES DILIGENTLY. IT CANNOT EXPECT THEIR APPEALS BE ENTERTAINED BECAUSE THEY ARE AFTER ALL THE ASSESSEE, NOTWITHSTANDING THE FACT THAT DELAY IS NOT SUFFICIENTLY EXPLAINED. HENCE, THE DELAY IS NOT CONDONED AND THE APPEAL S ARE UNADMITTED. 7. IN THE RESULT , BOTH THE APPEAL S FILED BY THE ASSESSEE ARE DISMISSED AS UNADMITTED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 16 TH NO VEMBER , 201 8 . SD/ - SD/ - ( GEORGE GEORGE K . ) ( CHANDRA POOJARI ) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 16 TH NOVEMBER , 2018 GJ COPY TO: 1 . THE COMPTROLLER, KERALA AGRICULTURAL UNIVERSITY, VELLAN I KKARA, THRISSUR. 2. THE ASSISTANT COMMISSIONER OF INCOME - TAX (TDS), CPC, GHAZIABAD. 3. T HE COMMISSIONER OF INCOME - TAX (AP P EALS) , THRISSUR. 4. THE COMMISSIONER OF INCOME - TAX (TDS) , KOCHI. 5. D. R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGIS TRAR) I.T.A.T., COCHIN BENCH