SHRI HARISH JHAMNANI, Ujjain V. THE CIT, Ujjain

ITA 704/IND/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5781 (ITAT-INDORE)
• Duration Of Justice: 10 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 19-10-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJIV VARSHNEY
• Assessee Lawyers: RAJENDRA SODANI
• Keywords: Period of limitation; Reasonable cause; Condonation of delay
• Section: 263

Judgement Text

SHRI HARISH JHAMNANI ITANO. 704/IND/2015 1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, JM & SHRI N.S. SAINI, AM ITA NO.704/IND/2015 A.Y. 2005-06 SHRI HARISH JHAMNANI UJJAIN PAN ABHPG 1832E ::: APPELLANT VS INCOME TAX OFFICER 1(1) UJJAIN ::: RESPONDENT APPELLANT BY SHRI RAJENDRA SODANI RESPONDENT BY SHRI RAJIV VARSHNEY DATE OF HEARING 4.7.2016 DATE OF PRONOUNCEMENT 5 . 9 . 2016 O R D E R THIS IS THE APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER DATED 23.2.2010 OF THE CIT, UJJAIN, PASSED U /S 263 OF THE ACT. 2. THIS APPEAL HAS BEEN FILED AFTER 2000 DAYS OF THE PERIOD OF LIMITATION AND AS SUCH IT IS BARRED BY LIMITAT ION. SHRI HARISH JHAMNANI ITANO. 704/IND/2015 2 3. NOTICE FOR SHOWING CAUSE FOR THE DELAY IN FILING THE APPEAL WAS SENT BY THE OFFICE OF THE TRIBUNAL TO THE ASSESSEE. THE ASSESSEE VIDE HIS LETTER DATED NIL. HAS STATED THAT BY MISTAKE THE APPELLANT HAS FILED COMBINED APPEAL BEFORE THE ITAT. IT IS ONLY MERE LACK OF KNOWLEDGE OF THE APPELLANT. THE ASSESSEE HAS ALSO FILED AN AFFIDAVIT TO THIS EFFECT WITH THE REQUEST TO CONDONE THE DELAY. THE ASS ESSEE HAS ALSO MADE THE FOLLOWING WRITTEN SUBMISSIONS :- THAT THE APPELLANT HAS RECEIVED A ORDER U/S 263 OF THE INCOME TAX ACT, THE ORDER WAS PASSED ON 23/02/12010 . BY MISTAKE THE APPELLANT HAS FILED COMBINED APPEAL BEF ORE THE ITAT. IT IS ONLY MERE OF LACK OF KNOWLEDGE OF THE A PPELLANT. IN THE PROCEEDINGS HIS FATHER SHRI BRIJLAL JHAMNANI WA S APPEARED, HE WAS VERY OLD MAN AND HE WAS ILL AND EX PIRED ON 18/06/2010. THE APPEAL IS FILED ON I9/10/20L5 AGAINST THE ORDER U/S 263 OF INCOME TAX ACT BEFORE YOUR HONOR WHICH IS DELAY. THE APPELLANT IS HUMBLE REQUEST YOU FOR COND ONE THE SHRI HARISH JHAMNANI ITANO. 704/IND/2015 3 DELAY OF APPEAL AND AFFIDAVIT IS ALSO FILED FOR REQ UEST OF CONDONATION BEFORE YOUR HONOUR ON 19/10/2015 HON'BLE SIR, IT IS A GENUINE AND SUFFICIENT CAUSE F OR DELAY AND THE APPELLANT IS REQUESTED YOU, KINDLY CO NSIDER MY REQUEST LBR DELAY OF CONDONE WITH PRAGMATIC AND LIBERAL APPROACH WITH SYMPATHETICALLY. THE APPELLANT RELY ON THE FOLLOWING JUDGMENTS 1) VEDA BAI ALLAS VAIJAYANATI BAI BABURAO PATIL AND OT HERS REPORLED IN 2002 (173) CTR (SC) 300 IN THAT JUDGMENT HON'BLE SUPREME COURT HAS HELD TH AT IN EXERCISE DISCRETION U/S 5 OF THE LIMITATION ACT. TH E COURT SHOULD ADOPT PRAGMATIC APPROACH AND EXPRESSION SUFFICIENT CAUSE SHOULD RECEIVED LIBERAL CONSTITUTE DELAY CONDONE. 2) IN CASE OF SUJATA VERMA V/S INCOME TAX OFFICER REPO RTED IN (2012) 20ITJ 5 (IT TRIBUNAL -INDORE) IN THAT JUDGMENT THE HON'BLE ITAT OF INDORE HAS HEL D THAT DELAY OF MORE THAN 13 YEARS IN FILING THE APPEAL. A REFUSAL TO CONDONE THE DELAY CAN RESULT IN MERITORIOUS MATT ER BEING THROWN OUT AT THE VERY THRESHOLD WHICH WOULD LEAD TO MICANAGE OF JUSTICE. THE TRIBUNAL HELD THAT THE ASSESSEE BONAFIDE AND SUFFICIENT REASON FOR DELAY I N FILING THE APPEAL AND THEREFORE IN INTEREST OF JUSTICE THE DELAY IS CONDONE. 3. IN CASE OF MOTILAL PADAMPAT SUGAR MILLS CO. LTD. V/S STATE OF U.P. REPORTED IN (1979) 118 RRR 326 CSC SHRI HARISH JHAMNANI ITANO. 704/IND/2015 4 IN THAT CASE THE HON'BLE SUPREME COURT HAS HELD THA T THERE IS NO MAXIMA THE EVERYBODY KNOWS THE LAW'. 4. IN CASE OL HARDAYAL CHARITABLE & EDUCATION TRUST V/S COMMISSIONER OF INCOME TAX REPORTED IN (2013) 2L IT J 33 (TRIBUNAL AGRA) IN THAT JUDGMENT THE HON'BLE COURL HAS HELD THAT TH E ASSESSEE WAS REQUIRED TO FILE TWO APPEAL BUT INSTEA D ASSESSEE FILED COMMON APPEAL, APPEAL WAS WITHDRAWN WITH LIBERTY TO FILE TWO SEPARATE APPEAL, ASSESSEE FILED TWO APPEAL DELAY IS CONDONE. 5) IN CASE OF MALWA CONCRETE UDHYOG (P) LTD. V/S COMMISSIONER OF CUSTOMS & CENTRAI EXCISE REPORTED I N (2014) 24 ITJ 223 (M.P.) JABALPUR BENCH IN THAT CASE IT IS HELD THAT DELAY SHALL BE CONDONE AS THERE IS A REASONABLE CAUSE & THE HON'BLE COURT HAS HELD THAT THE PROVISION OF CONDONATION OF DELAY ARE NOT PENAL IN NATURE AND IT HAS TO BE CONSTRUED LIBERALLY IF A CA SE IS MADE OUT FOR CONDONATION OF DELAY. THE PROVISION IS TO BE CONSTRUED LIBERALLY A PARTY SHOULD NOT BE DEPRIVED WITH ITS RIGHT OF HEARING THE CASE ON MERIT. SIR, THE APPELLANT SUBMITTED A AFFIDAVIT ON L9LL0L2 0L5 FOR YOUR VERIFICATION AND EXPRESS ALL THE FACTS BEFORE YOUR HONOUR AND IT IS A SUFFICIENT CAUSE TO DELAY OF APP EAL. THERE IS NO MELAFIED INTENSION OF THE ASSESSEE. THE PROVISION OF CONDONATION ARE NOT IN A PENAL NATURE THEREFORE IT IS REQUESTED THAT KINDLY CONDONE THE D ELAY OF APPEAL WITH HUMBLE REQUEST TO ADOPT PRAGMATIC APPRO ACH & LIBERAI VIEW. PRAYER THE APPELLANT PRAY THAT KINDLY CONSIDER MY HUMBLE REQUEST WITH SYMPATHETICALLY. SHRI HARISH JHAMNANI ITANO. 704/IND/2015 5 1. THE HON'BLE COURT SHOULD ADOPT PRAGMATIC APPROAC H. 2. THE EXPRESSION SUFFICIENT CAUSE SHOULD RECEIVED LIBERAL CONSTITUTE. 3. IT IS A GENUINE HARDSHIP . SIR, THE APPELLANT IS HUMBLY REQUESTED THAT KINDLY CONDONE THE DELAY OF APPEAL AND ADMIT THE APPEAL & OBLIGE. 4. ON THE OTHER HAND, THE LEARNED DR OPPOSED THE SAID APPLICATION AND STRONGLY SUBMITTED THAT UNDER THE LIMITATION ACT, FOR CONDONATION OF DELAY, EACH DAYS DELAY HAS TO BE EXPLAINED, WHICH THE ASSESSEE HAS FAILED TO DO AND AS SUCH THE APPEAL FILED BY THE ASSESSEE DESERVES SUMMARY DISMISSAL IN VIEW OF LIMITATION ACT. 5. WE HAVE HEARD BOTH THE SIDES. THE HON'BLE SUPREME COURT IN A RECENT DECISION, IN BALWANT SINGH V. JAGDISH SINGH & ORS., HAD THE OCCASION TO DEAL WITH THE CONCEPT OF ' CONDONATION OF DELAY ' AND ' SUFFICIENT CAUSE ' AS CONTAINED IN THE LIMITATION ACT. THE SUPREME COURT, WHILE DEALING WITH VARIOUS AUTHORITIES ON THE SUBJECT, HAS RULLED OUT PRINCIPLES, WHICH ARE REPRODU CED HEREUNDER :- SHRI HARISH JHAMNANI ITANO. 704/IND/2015 6 9. IN THE CASE OF MITHAILAL DALSANGAR SINGH (SUPRA), A BENCH OF THIS COURT HAD OCCASION TO DEAL WITH THE P ROVISIONS OF ORDER 22 RULE 9, CPC AND WHILE ENUNCIATING THE P RINCIPLES CONTROLLING THE APPLICATION OF AND EXERCISING OF DI SCRETION UNDER THESE PROVISIONS, THE COURT REITERATED THE PR INCIPLE THAT THE ABATEMENT IS AUTOMATIC AND NOT EVEN A SPECIFIC ORDER IS REQUIRED TO BE PASSED BY THE COURT IN THAT BEHALF. IT WOULD BE USEFUL TO REPRODUCE PARAGRAPH 8 OF THE SAID JUDGMEN T WHICH HAS A BEARING ON THE MATTER IN CONTROVERSY BEFORE U S: 8. INASMUCH AS THE ABATEMENT RESULTS IN DENIAL OF HEARING ON THE MERITS OF THE CASE, THE PROVISION OF ABATEME NT HAS TO BE CONSTRUED STRICTLY. ON THE OTHER HAND, THE PRAYE R FOR SETTING ASIDE AN ABATEMENT AND THE DISMISSAL CONSEQ UENT UPON AN ABATEMENT, HAVE TO BE CONSIDERED LIBERALLY. A SIMPLE PRAYER FOR BRINGING THE LEGAL REPRESENTATIVES ON RE CORD WITHOUT SPECIFICALLY PRAYING FOR SETTING ASIDE OF A N ABATEMENT MAY IN SUBSTANCE BE CONSTRUED AS A PRAYER FOR SETTI NG ASIDE THE ABATEMENT. SO ALSO A PRAYER FOR SETTING ASIDE A BATEMENT AS REGARDS ONE OF THE PLAINTIFFS CAN BE CONSTRUED A S A PRAYER FOR SETTING ASIDE THE ABATEMENT OF THE SUIT IN ITS ENTIRETY. ABATEMENT OF SUIT FOR FAILURE TO MOVE AN APPLICATIO N FOR BRINGING THE LEGAL REPRESENTATIVES ON RECORD WITHIN THE PRESCRIBED PERIOD OF LIMITATION IS AUTOMATIC AND SP ECIFIC ORDER DISMISSING THE SUIT AS ABATED IS NOT CALLED FOR. ON CE THE SUIT HAS ABATED AS A MATTER OF LAW, THOUGH THERE MAY NOT HAVE BEEN PASSED ON RECORD A SPECIFIC ORDER DISMISSING T HE SUIT AS ABATED, YET THE LEGAL REPRESENTATIVES PROPOSING TO BE BROUGHT ON RECORD OR ANY OTHER APPLICANT PROPOSING TO BRING THE LEGAL REPRESENTATIVES OF THE DECEASED PARTY ON RECORD WOU LD SEEK THE SETTING ASIDE OF AN ABATEMENT. A PRAYER FOR BRI NGING THE LEGAL REPRESENTATIVES ON RECORD, IF ALLOWED, WOULD HAVE THE EFFECT OF SETTING ASIDE THE ABATEMENT AS THE RELIEF OF SETTING ASIDE ABATEMENT THOUGH NOT ASKED FOR IN SO MANY WOR DS IS IN EFFECT BEING ACTUALLY ASKED FOR AND IS NECESSARILY IMPLIED. TOO TECHNICAL OR PEDANTIC AN APPROACH IN SUCH CASES IS NOT CALLED FOR. SHRI HARISH JHAMNANI ITANO. 704/IND/2015 7 10. ANOTHER BENCH OF THIS COURT IN A RECENT JUDGMEN T OF KATARI SURYANARAYANA V. KOPPISETTI SUBBA RAO , (AIR 2009 SC 2907) AGAIN HAD AN OCCASION TO CONSTRUE THE AMBI T, SCOPE AND APPLICATION OF THE EXPRESSION SUFFICIENT CAUSE . THE APPLICATION FOR SETTING ASIDE THE ABATEMENT AND BRI NGING THE LEGAL HEIRS OF THE DECEASED ON RECORD WAS FILED IN THAT CASE AFTER A CONSIDERABLE DELAY. THE EXPLANATION RENDERE D REGARDING THE DELAY OF 2381 DAYS IN FILING THE APPL ICATION FOR CONDONATION OF DELAY AND 2601 DAYS IN BRINGING THE LEGAL REPRESENTATIVES ON RECORD WAS NOT FOUND TO BE SATIS FACTORY. DECLINING THE APPLICATION FOR CONDONATION OF DELAY, THE COURT, WHILE DISCUSSING THE CASE OF PERUMON BHAGVATHY DEVASWOM V. BHARGAVI AMMA (2008) 8 SCC 321 IN ITS PARA 9 HELD AS UNDER: 11. THE WORDS SUFFICIENT CAUSE FOR NOT MAKING THE APPLICATION WITHIN THE PERIOD OF LIMITATION SHOULD BE UNDERSTOOD AND APPLIED IN A REASONABLE, PRAGMATIC, PRACTICAL AND LIBERAL MANNER, DEPENDING UPON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND THE TYPE OF CASE. TH E WORDS SUFFICIENT CAUSE IN SECTION 5 OF LIMITATION ACT S HOULD RECEIVE A LIBERAL CONSTRUCTION SO AS TO ADVANCE SUBSTANTIAL JUSTICE, WHEN THE DELAY IS NOT ON ACCOUNT OF ANY DILATORY TA CTICS, WANT OF BONA FIDES, DELIBERATE INACTION OR NEGLIGEN CE ON THE PART OF THE APPELLANT. 11. THE LEARNED COUNSEL APPEARING FOR THE APPLICANT , WHILE RELYING UPON THE CASES OF RAM SUMIRAN, MITHAILAL DALSANGAR SINGH AND GANESHPRASAD BADRINARAYAN LAHOTI (SUPRA), CONTENDED THAT THE COURT SHOULD ADOPT A VERY LIBERA L APPROACH AND THE DELAY SHOULD BE CONDONED ON THE ME RE ASKING BY THE APPLICANT. FIRSTLY, NONE OF THESE CAS ES IS OF MUCH HELP TO THE APPLICANT. SECONDLY, IN THE CASE O F RAM SUMIRAN (SUPRA), THE COURT HAS NOT RECORDED ANY REASONS OR ENUNCIATED ANY PRINCIPLE OF LAW FOR EXERCISING THE DISCRETION. THE COURT, BEING SATISFIED WITH THE FACTS AVERRED I N THE APPLICATION AND PARTICULARLY GIVING BENEFIT TO THE APPLICANT ON ACCOUNT OF ILLITERACY AND IGNORANCE, CONDONED THE D ELAY OF SIX YEARS IN FILING THE APPLICATION. THIS JUDGMENT CANN OT BE SHRI HARISH JHAMNANI ITANO. 704/IND/2015 8 TREATED AS A PRECEDENT IN THE EYES OF THE LAW. IN F ACT, IT WAS A JUDGMENT ON ITS OWN FACTS. 12. IN THE CASE OF GANESHPRASAD BADRINARAYAN LAHOTI (SUPRA), THE HIGH COURT HAD REJECTED THE APPLICATI ON, PRIMARILY, ON THE GROUND THAT NO SEPARATE APPLICATI ON HAD BEEN FILED FOR SUBSTITUTION AND FOR SETTING ASIDE T HE ABATEMENT. THE COURT HELD THAT THE PRINCIPLES OF RE S JUDICATA WERE NOT APPLICABLE AND THE APPLICATION COULD BE FI LED AT A SUBSEQUENT STAGE. THUS, THE DELAY WAS CONDONED. WE MUST NOTICE HERE THAT THE EARLIER JUDGMENTS OF THE EQUI BENCHES AND EVEN THAT OF LARGER BENCHES (THREE JUDGE BENCH) IN THE CASE OF RAM CHARAN (SUPRA) WERE NOT BROUGHT TO THE NOTICE OF THE COURT. RESULTANTLY, THE PRINCIPLES OF LAW ST ATED BY THIS COURT IN ITS EARLIER JUDGMENTS WERE NOT CONSIDERED BY THE BENCH DEALING WITH THE CASE OF GANESHPRASAD BADRINARAYAN LAHOTI (SUPRA). 13. AS HELD BY THIS COURT IN THE CASE OF MITHAILAL DALSANGAR SINGH (SUPRA), THE ABATEMENT RESULTS IN THE DENIAL OF HE ARING ON THE MERITS OF THE CASE, THE PROVISION OF ABATEME NT HAS TO BE CONSTRUED STRICTLY. ON THE OTHER HAND, THE PRAYE R FOR SETTING ASIDE AN ABATEMENT AND THE DISMISSAL CONSEQ UENT UPON AN ABATEMENT, HAVE TO BE CONSTRUED LIBERALLY. WE MAY STATE THAT EVEN IF THE TERM SUFFICIENT CAUSE HAS TO RECEIVE LIBERAL CONSTRUCTION, IT MUST SQUARELY FALL WITHIN THE CONCEPT OF REASONABLE TIME AND PROPER CONDUCT OF THE CONCERNED PARTY. THE PURPOSE OF INTRODUCING LIBERAL CONSTRUCTION NOR MALLY IS TO INTRODUCE THE CONCEPT OF REASONABLENESS AS IT IS UNDERSTOOD IN ITS GENERAL CONNOTATION. THE LAW OF LIMITATION I S A SUBSTANTIVE LAW AND HAS DEFINITE CONSEQUENCES ON TH E RIGHT AND OBLIGATION OF A PARTY TO ARISE. THESE PRINCIPLE S SHOULD BE ADHERED TO AND APPLIED APPROPRIATELY DEPENDING ON T HE FACTS AND CIRCUMSTANCES OF A GIVEN CASE. ONCE A VALUABLE RIGHT, AS ACCRUED IN FAVOUR OF ONE PARTY AS A RESULT OF THE F AILURE OF THE OTHER PARTY TO EXPLAIN THE DELAY BY SHOWING SUFFICI ENT CAUSE AND ITS OWN CONDUCT, IT WILL BE UNREASONABLE TO TAK E AWAY THAT RIGHT ON THE MERE ASKING OF THE APPLICANT, PAR TICULARLY WHEN THE DELAY IS DIRECTLY A RESULT OF NEGLIGENCE, DEFAULT OR SHRI HARISH JHAMNANI ITANO. 704/IND/2015 9 INACTION OF THAT PARTY. JUSTICE MUST BE DONE TO BOT H PARTIES EQUALLY. THEN ALONE THE ENDS OF JUSTICE CAN BE ACHI EVED. IF A PARTY HAS BEEN THOROUGHLY NEGLIGENT IN IMPLEMENTING ITS RIGHTS AND REMEDIES, IT WILL BE EQUALLY UNFAIR TO D EPRIVE THE OTHER PARTY OF A VALUABLE RIGHT THAT HAS ACCRUED TO IT IN LAW AS A RESULT OF HIS ACTING VIGILANTLY. THE APPLICATION FILED BY THE APPLICANTS LACK IN DETAILS. EVEN THE AVERMENTS MADE ARE NOT CORRECT AND EX-FACIE LACK BONA FIDE. THE EXPLANATIO N HAS TO BE REASONABLE OR PLAUSIBLE, SO AS TO PERSUADE THE COUR T TO BELIEVE THAT THE EXPLANATION RENDERED IS NOT ONLY T RUE, BUT IS WORTHY OF EXERCISING JUDICIAL DISCRETION IN FAVOUR OF THE APPLICANT. IF IT DOES NOT SPECIFY ANY OF THE ENUNCI ATED INGREDIENTS OF JUDICIAL PRONOUNCEMENTS, THEN THE AP PLICATION SHOULD BE DISMISSED. ON THE OTHER HAND, IF THE APPL ICATION IS BONA FIDE AND BASED UPON TRUE AND PLAUSIBLE EXPLANA TIONS, AS WELL AS REFLECT NORMAL BEHAVIOUR OF A COMMON PRU DENT PERSON ON THE PART OF THE APPLICANT, THE COURT WOUL D NORMALLY TILT THE JUDICIAL DISCRETION IN FAVOUR OF SUCH AN A PPLICANT. LIBERAL CONSTRUCTION CANNOT BE EQUATED WITH DOING I NJUSTICE TO THE OTHER PARTY. IN THE CASE OF STATE OF BIHAR V. KAMESHWAR PRASAD SINGH (2000) 9 SCC 94, THIS COURT HAD TAKEN A LIBERAL APPROACH FOR CONDONING THE DELAY IN CASES OF THE GOVERNMENT, TO DO SUBSTANTIAL JUSTICE. FACTS OF THA T CASE WERE ENTIRELY DIFFERENT AS THAT WAS THE CASE OF FIXATION OF SENIORITY OF 400 OFFICERS AND THE FACTS WERE REQUIRED TO BE V ERIFIED. BUT WHAT WE ARE IMPRESSING UPON IS THAT DELAY SHOULD BE CONDONED TO DO SUBSTANTIAL JUSTICE WITHOUT RESULTIN G IN INJUSTICE TO THE OTHER PARTY. THIS BALANCE HAS TO B E KEPT IN MIND BY THE COURT WHILE DECIDING SUCH APPLICATIONS. IN THE CASE OF RAMLAL AND OTHERS V. REWA COALFIELDS LTD. , AIR 1962 SC 361 THIS COURT TOOK THE VIEW: 7. IN CONSTRUING SECTION 5 IT IS RELEVANT TO BEAR IN MIND TWO IMPORTANT CONSIDERATIONS. THE FIRST CONSIDERATION I S THAT THE EXPIRATION OF THE PERIOD OF LIMITATION PRESCRIBED F OR MAKING AN APPEAL GIVES RISE TO A RIGHT IN FAVOUR OF THE DECRE E HOLDER TO TREAT THE DECREE AS BINDING BETWEEN THE PARTIES. IN OTHER WORDS, WHEN THE PERIOD OF LIMITATION PRESCRIBED HAS EXPIRED THE DECREE-HOLDER HAS OBTAINED A BENEFIT UNDER THE LAW OF SHRI HARISH JHAMNANI ITANO. 704/IND/2015 10 LIMITATION TO TREAT THE DECREE AS BEYOND CHALLENGE, AND THIS LEGAL RIGHT WHICH HAS ACCRUED TO THE DECREE HOLDER BY LAPSE OF TIME SHOULD NOT BE LIGHT HEARTEDLY DISTURBED. THE O THER CONSIDERATION WHICH CANNOT BE IGNORED IS THAT IF SU FFICIENT CAUSE FOR EXCUSING DELAY IS SHOWN DISCRETION IS GIV EN TO THE COURT TO CONDONE DELAY AND ADMIT THE APPEAL. THIS D ISCRETION HAS BEEN DELIBERATELY CONFERRED ON THE COURT IN ORD ER THAT JUDICIAL POWER AND DISCRETION IN THAT BEHALF SHOULD BE EXERCISED TO ADVANCE SUBSTANTIAL JUSTICE. AS HAS BE EN OBSERVED BY THE MADRAS HIGH COURT IN KRISHNA V. CHATHAPPAN , ILR 13 MAD 269. IT IS HOWEVER, NECESSARY TO EMPHASIZE THAT EVEN AFTER SUFFICIENT CAUSE HAS BEEN SHOWN A PARTY IS NOT ENTITLED TO THE CONDONATION OF DELAY I N QUESTION AS A MATTER OF RIGHT. THE PROOF OF A SUFFICIENT CAU SE IS A CONDITION PRECEDENT FOR THE EXERCISE OF THE DISCRET IONARY JURISDICTION VESTED IN THE COURT BY SECTION 5. IF S UFFICIENT CAUSE IS NOT PROVED NOTHING FURTHER HAS TO BE DONE; THE APPLICATION FOR CONDONING DELAY HAS TO BE DISMISSED ON THAT GROUND ALONE. IF SUFFICIENT CAUSE IS SHOWN THEN THE COURT HAS TO ENQUIRE WHETHER IN ITS DISCRETION IT SHOULD COND ONE THE DELAY. THIS ASPECT OF THE MATTER NATURALLY INTRODUC ES THE CONSIDERATION OF ALL RELEVANT FACTS AND IT IS AT TH IS STAGE THAT DILIGENCE OF THE PARTY OR ITS BONA FIDES MAY FALL F OR CONSIDERATION; 14. IN THE CASE OF UNION OF INDIA V. TATA YODOGAWA LTD. , 1988 (38) EXCISE LAW TIMES 739 (SC), THIS COURT WHI LE GRANTING SOME LATITUDE TO THE GOVERNMENT IN RELATIO N TO CONDONATION OF DELAY, STILL HELD THAT THERE MUST BE SOME WAY OR ATTEMPT TO EXPLAIN THE CAUSE FOR SUCH DELAY AND AS THERE WAS NO WHISPER TO EXPLAIN WHAT LEGAL PROBLEMS OCCUR RED IN FILING THE SPECIAL LEAVE PETITION, THE APPLICATION FOR CONDONATION OF DELAY WAS DISMISSED. SIMILARLY, IN T HE CASE OF COLLECTOR OF CENTRAL EXCISE, MADRAS V. A.MD. BILAL & CO. , 1999 (108) EXCISE LAW TIMES 331 (SC), THE SUPREME C OURT DECLINED TO CONDONE THE DELAY OF 502 DAYS IN FILING THE APPEAL BECAUSE THERE WAS NO SATISFACTORY OR REASONABLE EXP LANATION RENDERED FOR CONDONATION OF DELAY. THE PROVISIONS O F ORDER 22 RULE 9, CPC HAS BEEN THE SUBJECT MATTER OF JUDICIAL SCRUTINY SHRI HARISH JHAMNANI ITANO. 704/IND/2015 11 FOR CONSIDERABLE TIME NOW. SOMETIMES THE COURTS HAV E TAKEN A VIEW THAT DELAY SHOULD BE CONDONED WITH A LIBERAL ATTITUDE, WHILE ON CERTAIN OCCASIONS THE COURTS HAVE TAKEN A STRICTER VIEW AND WHEREVER THE EXPLANATION WAS NOT SATISFACT ORY, HAVE DISMISSED THE APPLICATION FOR CONDONATION OF D ELAY. THUS, IT IS EVIDENT THAT IT IS DIFFICULT TO STATE A NY STRAIGHT- JACKET FORMULA WHICH CAN UNIFORMLY BE APPLIED TO AL L CASES WITHOUT REFERENCE TO THE PECULIAR FACTS AND CIRCUMS TANCES OF A GIVEN CASE. IT MUST BE KEPT IN MIND THAT WHENEVER A LAW IS ENACTED BY THE LEGISLATURE, IT IS INTENDED TO BE EN FORCED IN ITS PROPER PERSPECTIVE. IT IS AN EQUALLY SETTLED PRINCI PLE OF LAW THAT THE PROVISIONS OF A STATUTE, INCLUDING EVERY W ORD, HAVE TO BE GIVEN FULL EFFECT, KEEPING THE LEGISLATIVE INTEN T IN MIND, IN ORDER TO ENSURE THAT THE PROJECTED OBJECT IS ACHIEV ED. IN OTHER WORDS, NO PROVISIONS CAN BE TREATED TO HAVE BEEN EN ACTED PURPOSELESSLY. FURTHERMORE, IT IS ALSO A WELL SETTL ED CANON OF INTERPRETATIVE JURISPRUDENCE THAT THE COURT SHOULD NOT GIVE SUCH AN INTERPRETATION TO PROVISIONS WHICH WOULD RE NDER THE PROVISION INEFFECTIVE OR ODIOUS. ONCE THE LEGISLATU RE HAS ENACTED THE PROVISIONS OF ORDER 22, WITH PARTICULAR REFERENCE TO RULE 9, AND THE PROVISIONS OF THE LIMITATION ACT ARE APPLIED TO THE ENTERTAINMENT OF SUCH AN APPLICATION, ALL TH ESE PROVISIONS HAVE TO BE GIVEN THEIR TRUE AND CORRECT MEANING AND MUST BE APPLIED WHEREVER CALLED FOR. IF WE ACCE PT THE CONTENTION OF THE LEARNED COUNSEL APPEARING FOR THE APPLICANT THAT THE COURT SHOULD TAKE A VERY LIBERAL APPROACH AND INTERPRET THESE PROVISIONS (ORDER 22 RULE 9 OF THE CPC AND SECTION 5 OF THE LIMITATION ACT) IN SUCH A MANNER A ND SO LIBERALLY, IRRESPECTIVE OF THE PERIOD OF DELAY, IT WOULD AMOUNT TO PRACTICALLY RENDERING ALL THESE PROVISIONS REDUN DANT AND INOPERATIVE. SUCH APPROACH OR INTERPRETATION WOULD HARDLY BE PERMISSIBLE IN LAW. LIBERAL CONSTRUCTION OF THE EXP RESSION SUFFICIENT CAUSE IS INTENDED TO ADVANCE SUBSTANTI AL JUSTICE WHICH ITSELF PRESUPPOSES NO NEGLIGENCE OR INACTION ON THE PART OF THE APPLICANT, TO WHOM WANT OF BONA FIDE IS IMPU TABLE. THERE CAN BE INSTANCES WHERE THE COURT SHOULD CONDO NE THE DELAY; EQUALLY THERE WOULD BE CASES WHERE THE COURT MUST EXERCISE ITS DISCRETION AGAINST THE APPLICANT FOR W ANT OF ANY OF THESE INGREDIENTS OR WHERE IT DOES NOT REFLECT SUF FICIENT SHRI HARISH JHAMNANI ITANO. 704/IND/2015 12 CAUSE AS UNDERSTOOD IN LAW. [ADVANCED LAW LEXICON, P. RAMANATHA AIYAR, 2ND EDITION, 1997] THE EXPRESSION SUFFICIENT CAUSE IMPLIES THE PRESE NCE OF LEGAL AND ADEQUATE REASONS. THE WORD SUFFICIENT MEANS A DEQUATE ENOUGH, AS MUCH AS MAY BE NECESSARY TO ANSWER THE PURPOSE INTENDED. IT EMBRACES NO MORE THAN THAT WHI CH PROVIDES A PLENTITUDE WHICH, WHEN DONE, SUFFICES TO ACCOMPLISH THE PURPOSE INTENDED IN THE LIGHT OF EXI STING CIRCUMSTANCES AND WHEN VIEWED FROM THE REASONABLE STANDARD OF PRACTICAL AND CAUTIOUS MEN. THE SUFFICI ENT CAUSE SHOULD BE SUCH AS IT WOULD PERSUADE THE COURT, IN E XERCISE OF ITS JUDICIAL DISCRETION, TO TREAT THE DELAY AS AN E XCUSABLE ONE. THESE PROVISIONS GIVE THE COURTS ENOUGH POWER AND DISCRETION TO APPLY A LAW IN A MEANINGFUL MANNER, W HILE ASSURING THAT THE PURPOSE OF ENACTING SUCH A LAW DO ES NOT STAND FRUSTRATED. WE FIND IT UNNECESSARY TO DISCUSS THE INSTANCES WHICH WOULD FALL UNDER EITHER OF THESE CL ASSES OF CASES. THE PARTY SHOULD SHOW THAT BESIDES ACTING BO NA FIDE, IT HAD TAKEN ALL POSSIBLE STEPS WITHIN ITS POWER AN D CONTROL AND HAD APPROACHED THE COURT WITHOUT ANY UNNECESSAR Y DELAY. THE TEST IS WHETHER OR NOT A CAUSE IS SUFFIC IENT TO SEE WHETHER IT COULD HAVE BEEN AVOIDED BY THE PARTY BY THE EXERCISE OF DUE CARE AND ATTENTION. [ADVANCED LAW L EXICON, P. RAMANATHA AIYAR, 3RD EDITION, 2005] 15. WE FEEL THAT IT WOULD BE USEFUL TO MAKE A REFER ENCE TO THE JUDGMENT OF THIS COURT IN PERUMON BHAGVATHY DEVASWOM (SUPRA). IN THIS CASE, THE COURT, AFTER DISCUSSING A NUMBER OF JUDGMENTS OF THIS COURT AS WELL AS THAT O F THE HIGH COURTS, ENUNCIATED THE PRINCIPLES WHICH NEED TO BE KEPT IN MIND WHILE DEALING WITH APPLICATIONS FILED UNDER TH E PROVISIONS OF ORDER 22, CPC ALONG WITH AN APPLICATI ON UNDER SECTION 5, LIMITATION ACT FOR CONDONATION OF DELAY IN FILING THE APPLICATION FOR BRINGING THE LEGAL REPRESENTATIVES ON RECORD. IN PARAGRAPH 13 OF THE JUDGMENT, THE COURT HELD AS UND ER:- 13 (I) THE WORDS SUFFICIENT CAUSE FOR NOT MAKING THE APPLICATION WITHIN THE PERIOD OF LIMITATION SHOULD BE SHRI HARISH JHAMNANI ITANO. 704/IND/2015 13 UNDERSTOOD AND APPLIED IN A REASONABLE, PRAGMATIC, PRACTICAL AND LIBERAL MANNER, DEPENDING UPON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND THE TYPE O F CASE. THE WORDS SUFFICIENT CAUSE IN SECTION 5 OF THE LIMITATION ACT SHOULD RECEIVE A LIBERAL CONSTRUCTIO N SO AS TO ADVANCE SUBSTANTIAL JUSTICE, WHEN THE DELAY I S NOT ON ACCOUNT OF ANY DILATORY TACTICS, WANT OF BON A FIDES, DELIBERATE INACTION OR NEGLIGENCE ON THE PAR T OF THE APPELLANT. (II) IN CONSIDERING THE REASONS FOR CONDONATION OF DELAY, THE COURTS ARE MORE LIBERAL WITH REFERENCE TO APPLICATIONS FOR SETTING ASIDE ABATEMENT, THAN OTHE R CASES. WHILE THE COURT WILL HAVE TO KEEP IN VIEW TH AT A VALUABLE RIGHT ACCRUES TO THE LEGAL REPRESENTATIVES OF THE DECEASED RESPONDENT WHEN THE APPEAL ABATES, IT WILL NOT PUNISH AN APPELLANT WITH FORECLOSURE OF TH E APPEAL, FOR UNINTENDED LAPSES. THE COURTS TEND TO S ET ASIDE ABATEMENT AND DECIDED THE MATTER ON MERITS. T HE COURTS TEND TO SET ASIDE ABATEMENT AND DECIDE THE MATTER ON MERITS, RATHER THAN TERMINATE THE APPEAL ON THE GROUND OF ABATEMENT. (III) THE DECISIVE FACTOR IN CONDONATION OF DELAY, IS NOT THE LENGTH OF DELAY, BUT SUFFICIENCY OF A SATISFACT ORY EXPLANATION. (IV) THE EXTENT OR DEGREE OF LENIENCY TO BE SHOWN B Y A COURT DEPENDS ON THE NATURE OF APPLICATION AND FACT S AND CIRCUMSTANCES OF THE CASE. FOR EXAMPLE, COURTS VIEW DELAYS IN MAKING APPLICATIONS IN A PENDING APPEAL MORE LENIENTLY THAN DELAYS IN THE INSTITUTIO N OF AN APPEAL. THE COURTS VIEW APPLICATIONS RELATING TO LAWYERS LAPSES MORE LENIENTLY THAN APPLICATIONS RELATING TO LITIGANTS LAPSES. THE CLASSIC EXAMPLE IS THE DIFFERENCE IN APPROACH OF COURTS TO APPLICATIONS FO R CONDONATION OF DELAY IN FILING AN APPEAL AND APPLICATIONS FOR CONDONATION OF DELAY IN RE-FILING THE APPEAL AFTER RECTIFICATION OF DEFECTS. SHRI HARISH JHAMNANI ITANO. 704/IND/2015 14 (V) W ANT OF DILIGENCE OR INACTION CAN BE ATTRIBUTED TO AN APPELLANT ONLY WHEN SOMETHING REQUIRED TO BE DONE BY HIM, IS NOT DONE. WHEN NOTHING IS REQUIRED TO BE DONE, COURTS DO NOT EXPECT THE APPELLANT TO BE DILIGENT. WHERE AN APPEAL IS ADMITTED BY THE HIGH COURT AND IS NOT EXPECTED TO BE LISTED FOR FINAL HE ARING FOR A FEW YEARS, AN APPELLANT IS NOT EXPECTED TO VI SIT THE COURT OR HIS LAWYER EVERY FEW WEEKS TO ASCERTAI N THE POSITION NOR KEEP CHECKING WHETHER THE CONTESTI NG RESPONDENT IS ALIVE. HE MERELY AWAITS THE CALL OR INFORMATION FROM HIS COUNSEL ABOUT THE LISTING OF T HE APPEAL. WE MAY ALSO NOTICE HERE THAT THIS JUDGMENT HAD BEEN FOLLOWED WITH APPROVAL BY AN EQUI-BENCH OF THIS COU RT IN THE CASE OF KATARI SURYANARAYANA (SUPRA) 16. ABOVE ARE THE PRINCIPLES WHICH SHOULD CONTROL T HE EXERCISE OF JUDICIAL DISCRETION VESTED IN THE COURT UNDER TH ESE PROVISIONS. THE EXPLAINED DELAY SHOULD BE CLEARLY U NDERSTOOD IN CONTRADISTINCTION TO INORDINATE UNEXPLAINED DELA Y. DELAY IS JUST ONE OF THE INGREDIENTS WHICH HAS TO BE CONSIDE RED BY THE COURT. IN ADDITION TO THIS, THE COURT MUST ALSO TAK E INTO ACCOUNT THE CONDUCT OF THE PARTIES, BONA FIDE REASO NS FOR CONDONATION OF DELAY AND WHETHER SUCH DELAY COULD E ASILY BE AVOIDED BY THE APPLICANT ACTING WITH NORMAL CARE AN D CAUTION. THE STATUTORY PROVISIONS MANDATE THAT APPL ICATIONS FOR CONDONATION OF DELAY AND APPLICATIONS BELATEDLY FILED BEYOND THE PRESCRIBED PERIOD OF LIMITATION FOR BRIN GING THE LEGAL REPRESENTATIVES ON RECORD, SHOULD BE REJECTED UNLESS SUFFICIENT CAUSE IS SHOWN FOR CONDONATION OF DELAY. THE LARGER BENCHES AS WELL AS EQUI-BENCHES OF THIS COURT HAVE CONSISTENTLY FOLLOWED THESE PRINCIPLES AND HAVE EIT HER ALLOWED OR DECLINED TO CONDONE THE DELAY IN FILING SUCH APPLICATIONS. THUS, IT IS THE REQUIREMENT OF LAW TH AT THESE APPLICATIONS CANNOT BE ALLOWED AS A MATTER OF RIGHT AND EVEN IN A ROUTINE MANNER. AN APPLICANT MUST ESSENTIALLY SATISFY THE ABOVE STATED INGREDIENTS; THEN ALONE THE COURT WOULD BE SHRI HARISH JHAMNANI ITANO. 704/IND/2015 15 INCLINED TO CONDONE THE DELAY IN THE FILING OF SUCH APPLICATIONS. 6. THE HON'BLE SUPREME COURT IN THE CASE OF BALWANT SINGH VS. JAGDISH SINGH & ORS. (SUPRA) HAS DISCUSSED AL L THE RELEVANT JUDGMENTS AND HELD THAT WHILE CONDONING T HE DELAY, THE COURT HAS TO TAKE INTO ACCOUNT THE CONDUCT OF THE PARTIES, BONA FIDE REASONS FOR CONDONATION OF DELAY AND WHETHER SUCH DELAY COULD EASILY BE AVOIDED BY THE APPELLANT ACTING WITH NORMAL CARE AND CAUTION. IN THIS CASE DURING THE COURSE OF HEARING IT WAS INQUIRED FROM THE LEARNED COUNSEL FOR THE ASSESSEE AS TO WHETHER AFTER TH E DEATH OF HIS FATHER (SHRI BRIJLAL JHAMNANI) THE ASSESSEE HAS FILED THE RETURNS OF INCOME FOR THE SUBSEQUENT ASSESS MENT YEARS I.E. 2006-07, 2007-08 AND 2008-09 OR NOT ? IN REPLY, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT T HE ASSESSEE HAS FILED ALL THE RETURNS OF INCOME WITH THE DEPARTMENT. IN VIEW OF THIS FACT, AFTER THE DEATH OF F ATHER OF THE ASSESSEE ON 18.6.2010, THE ASSESSEE DID NOT CARE T O SHRI HARISH JHAMNANI ITANO. 704/IND/2015 16 LOOK INTO THIS APPEAL. THEREFORE, IN OUR OPINION, CON DUCT OF THE ASSESSEE IS NOT BONAFIDE AND THERE IS NO REASON TO CONDONE THE DELAY. WE, THEREFORE, DISMISS THE APPLIC ATION FOR CONDONATION OF DELAY. 9. IN THE RESULT, THE APPEAL IS DISMISSED BEING BARRED BY LIMITATION. PRONOUNCED IN OPEN COURT ON 5.9.2016. SD/- SD/- (N.S. SAINI) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER 5.9.2016