RITA TIWARI, BEGUM BAZAR V. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 1

ITA 513/Hyd/2021

• Counselvise Citation: [2022] 103 COUNSELVISE.COM (IT) 9757 (ITAT-HYDERABAD)
• Duration Of Justice: 10 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB-B
• Next Hearing Date: 25-10-2022
• Assessment Year: 2010-2011
• Appeal Filed On: 05-12-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Period of limitation; Time period of passing order; Condonation of delay
• Section: 6; 143(3); 80G; 13

Judgement Text

आयकर अपीलीय अधिकरण, हैदराबाद पीठ में IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES “B”, HYDERABAD BEFORE SHRI RAMA KANTA PANDA, ACCOUNTANT MEMBER & SHRI K.NARASIMHA CHARY, JUDICIAL MEMBER आ.अपी.सं / ITA Nos. 513, 514 & 515/Hyd/2021 (निर्धारण वर्ा / Assessment Years: 2010-11, 2011-12 & 2012-13) Rita Tiwari, Hyderabad [PAN No. AJQPT1961L] Vs. Dy. Commissioner of Income Tax, Central Circle-1, Hyderabad अपीलधर्थी / Appellant प्रत्‍यर्थी / Respondent निर्धाररती‍द्वधरध / Assessee by: NONE रधजस्‍व‍द्वधरध / Revenue by: Shri T. Vijay Bhaskar Reddy, CIT-DR स ु िवधई‍की‍तधरीख/Date of hearing: 26/10/2022 घोर्णध की‍तधरीख/Pronouncement on: 26/10/2022 आदेश / ORDER PER K. NARASIMHA CHARY, JM: Aggrieved by the order(s) dated 04/08/2021 passed by the learned Commissioner of Income Tax (Appeals)-11, Hyderabad (“Ld. CIT(A)”), in the case of Rita Tiwari (“the assessee”) for the assessment years 2010-11, 2011-12 and 2012-13, assessee preferred these appeals, challenging the dismissal of the appeals by the Ld. CIT(A) on the ground of delay and refusing to condone the same. ITA Nos. 513, 514 & 515/Hyd/2021 Page 2 of 9 2. It could be seen from the record that there is a delay of thirty days in preferring these appeals. As a matter of fact, though the learned DR does not concede to condone the delay, there is no denial of the fact that the Hon'ble Supreme Court in the Suo Motu proceedings in the case of M.A.No. 21/2022 in M.A.No. 665/2021 in SMW(C) No.3 of 2020 by order dated 10/01/2022 held that in cases, where the limitation would have expired during the period between 15/03/2020 and 28/02/2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01/03/2022, and in the event of actual balance period of limitation remaining with effect from 01/03/2022 is greater than 90 days, that longer period shall apply. Since the date of impugned orders under these appeals is 04/08/2021, these appeals, filed on 06/12/2021 shall be treated as filed within the period of limitation. We, therefore, now shall proceed to hear the appeals. 3. Brief facts of the case are that the assessee is the proprietrix of the firm M/s Rita Commodities. For the assessment years 2010-11 to 2012-13 the learned Assessing Officer, by order dated 31/3/2014, passed under section 143(3) of the Income Tax Act, 1961 (for short “the Act”) denied the claim of the assessee for deduction under section 80 DDB, 80C, 80G or 80GG of the Act, as the case may be, on the ground that the assessee failed to produce the evidence in support of the claim. 4. Assessee preferred these appeals before the Ld. CIT(A) with a delay of more than 4 years stating that she was under the mistaken impression that in order to maintain the appeal(s), a huge sum had to be paid as a condition precedent and because she was not financially sound she did not venture to file the appeals within time. Subsequently, according to her when she came to know that nothing need be paid to file the appeal(s), at the advice of the well-wishers she preferred the appeals, but with a delay. ITA Nos. 513, 514 & 515/Hyd/2021 Page 3 of 9 5. Ld. CIT(A) considered the reasons assigned by the assessee for the delay in filing the appeals and found that for various years the assessee had given different reasons as the cause of delay. Though the assessee cited health issues as one of the reasons, Ld. CIT(A) opined that the health reasons could be for a period but not to such length of time as 4 years 6 months. Second reason stated by the assessee for the delay is that her husband was taken by the income tax enforcement officials for six months, but the Ld. CIT(A) did not believe the same stating that the income tax officials cannot detain a person as per law for a period of six months and there is no evidence to support the same. The reason stated by the assessee that she was under the impression that certain amount was to be paid as a condition precedent to file the appeal, the assessee could not prefer the appeals. Ld. CIT(A) did not believe the same stating that the imaginative belief of the assessee cannot be a ground to condone the inordinate delay of 4 years and 6 months. 6. Further on examination of the reasons for the assessment years 2010-11 to 2012-13, Ld. CIT(A) found that there is a discrepancy in the reasons assigned to the delay and held that the assessee was generally making flimsy grounds for the condonation of delay. He also found that the reason stated by the assessee that she approached the Director of M/s Narayana Education Society to take care of the appeals as the transactions were done by them in which the assessee was to suffer, but such a reason was not substantiated by the assessee. Ld. CIT(A) therefore was of the opinion that the assessee was manufacturing the reasons for condonation of delay and none of such reasons is justifiable nor established by the assessee. 7. On an appraisal of the contentions of the assessee, Ld. CIT(A) found that the delay was due to the negligence and inaction on the part of the assessee, which the assessee could have very well avoided by exercise of ITA Nos. 513, 514 & 515/Hyd/2021 Page 4 of 9 due care and caution, and, therefore, there is no sufficient good cause to condone the delay of 1662 days. Ld. CIT(A) referred to a catena of decisions of various Hon'ble High Courts, Hon’ble Supreme Court and also the Privy Council and reached a conclusion that the facts in this case do not warrant the condonation of delay. He accordingly dismissed the appeals holding that those were barred by limitation. 8. Assessee preferred these appeals stating that the Ld. CIT(A) erred in concluding that the assessee did not have sufficient cause and bonafide reasons to condone the delay in filing the appeals. 9. When the matter is called, neither the assessee nor any authorised representative entered appearance. It could be seen from the record that the notices sent to the address given in form No. 36 is returned with the endorsement of the postal servant that the addressee left. If the assessee is available in such address, such notice should have been served on the assessee. If for any reason, the assessee is not available there, it is for the assessee to make arrangements for service of such notice by furnishing the address where the assessee would be available, or to deliver it to some authorised person, or by making request to the postal department to detain the mail till the assessee claims the same. Inasmuch as the assessee, having preferred the appeals, made herself not available in the address given in form 36 the non-service of notice is solely attributable to the conduct of the assessee, and at the same time, since she did not leave any new address either with the Tribunal or with the Revenue, it is not known how to serve the notices to the assessee. In these circumstances, we find no option but to proceed to hear the counsel for Revenue and decide the matter on merits basing on the material available on record. 10. Learned DR submitted that as rightly observed by the learned CIT(A), the assessee failed to give any justifiable reason in respect of the ITA Nos. 513, 514 & 515/Hyd/2021 Page 5 of 9 delay in preferring the appeals, and reasons assigned by the assessee for the delay are not at all acceptable and, therefore, the learned CIT(A) is justified in declining to condone the delay. He further submitted that even before this Tribunal also, the assessee did not evince any interest in prosecution of the appeals and without furnishing any details of her new address, she left the address given in form 36 thereby making it impossible to serve any notice on her. According to him, the statement and conduct of the assessee do not go hand in hand and, therefore, there is no reason for condoning the delay in filing the appeals before the learned CIT(A) and also the delay before the Tribunal. He placed reliance on the decision of Hon'ble Apex Court in Majji Sannemma @ Sanyasirao Vs. Reddy Sridevi, CIVIL APPEAL No.7696 of 2021. 11. We have gone through the record in the light of the submissions made on either side. There is no reason for us not to agree with the submissions made by the learned DR. Learned CIT(A) analysed various reasons assigned by the assessee for the inordinate delay of 1664 days in preferring appeals before him, and as a matter of fact, found that all such reasons were not at all tenable and cooked up for the purpose of maintaining the appeals. No material whatsoever was produced either before the learned CIT(A) or before us in support of such reasons for delay. No sufficient cause is made out and the learned CIT(A) rightly reached the factual conclusion. 12. In Majji Sannemma (supra), the Hon'ble Apex Court noticed the decisions in the cases of Ramlal, Motilal and Chhotelal Vs. Rewa Coalfields Ltd., (1962) 2 SCR 762; P.K. Ramachandran Vs. State of Kerala and Anr., (1997) 7 SCC 556 as well as the decision in the cases of Pundlik Jalam Patil Vs. Executive Engineer, Jalgaon Medium Project, (2008) 17 SCC 448 and Basawaraj and Anr. Vs. Special Land Acquisition Officer., (2013) 14 SCC 81, and referred to them as under,- ITA Nos. 513, 514 & 515/Hyd/2021 Page 6 of 9 “7. At this stage, a few decisions of this Court on delay in filing the appeal are referred to and considered as under: 7.1 In the case of Ramlal, Motilal and Chhotelal (supra), it is observed and held as under: In construing s. 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decreeholder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decreeholder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decreeholder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chattappan, (1890) J.L.R. 13 Mad. 269, "s. 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words ‘sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant." 7.2 In the case of P.K. Ramachandran (supra), while refusing to condone the delay of 565 days, it is observed that in the absence of reasonable, satisfactory or even appropriate explanation for seeking condonation of delay, the same is not to be condoned lightly. It is further observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. It is further observed that while exercising discretion for condoning the delay, the court has to exercise discretion judiciously. 7.3 In the case of Pundlik Jalam Patil (supra), it is observed as under: “The laws of limitation are founded on public policy. Statutes of limitation are sometimes described as “statutes of peace”. An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. The ITA Nos. 513, 514 & 515/Hyd/2021 Page 7 of 9 principle is based on the maxim “interest reipublicae ut sit finis litium”, that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury, quickening diligence and preventing oppression. The object for fixing timelimit for litigation is based on public policy fixing a lifespan for 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.” 7.4 In the case of Basawaraj (supra), it is observed and held by this Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case. It is further observed that the expression “sufficient cause” cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party. It is further observed that even though limitation may harshly affect rights of a party but it has to be applied with all its rigour when prescribed by statute. It is further observed that in case a party has acted with negligence, lack of bona fides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It is observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It is further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature. 7.5 In the case of Pundlik Jalam Patil (supra), it is observed by this Court that the court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The Courts help those who are vigilant and “do not slumber over their rights”. 8. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and considering the averments in the application for condonation of delay, we are of the opinion that as such no explanation much less a sufficient or a satisfactory explanation had been offered by respondent Nos.1 and 2 herein – appellants before the High Court for condonation of huge delay of 1011 days in preferring the Second Appeal. The High Court is not at all justified in exercising its discretion to condone such a huge delay. The High Court has not exercised the discretion judiciously. The ITA Nos. 513, 514 & 515/Hyd/2021 Page 8 of 9 reasoning given by the High Court while condoning huge delay of 1011 days is not germane”. 13. The facts of the present case are squarely covered by the facts as decided by the Hon'ble Apex Court in the above referred case. Respectfully following the same, and applying the law to the facts of the present case, we are of the considered opinion that there is serious failure on the part of the assessee to establish the ‘sufficient cause’ to prefer the appeals with delay and, therefore, the learned CIT(A) rightly declined to condone the delay. There is no sufficient cause to condone the delay and, therefore, while upholding the findings of the learned CIT(A), we dismiss these three appeals of the assessee. 14. In the result, all these appeals of assessee are dismissed. Order pronounced in the open court on this the 26 th day of October, 2022. Sd/- Sd/- (RAMA KANTA PANDA) (K. NARASIMHA CHARY) ACCOUNTANT MEMBER JUDICIAL MEMBER Hyderabad, Dated: 26/10/2022 TNMM ITA Nos. 513, 514 & 515/Hyd/2021 Page 9 of 9 Copy forwarded to: 1. Rita Tiwari, 14-4-269, Begum Bazar, Hyderabad. 2. Dy. Commissioner of Income Tax, Central Circle-1, Hyderabad. 3. CIT(Appeals)-11, Hyderabad. 4. Pr.CIT(Central)-Hyderabad. 5. DR, ITAT, Hyderabad. 6. GUARD FILE TRUE COPY ASSISTANT REGISTRAR ITAT, HYDERABAD