Abusaad Ahmad, Lucknow V. Astt. Commissioner of Income Tax, Central Circle- 1, Lucknow

ITSSA 365/LKW/2018

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 6057 (ITAT-LUCKNOW)
• Duration Of Justice: 6 year(s) 2 month(s) 1 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 02-07-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 02-07-2024
• Assessment Year: 2005-2006
• Appeal Filed On: 01-05-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NAMITA PANDEY LD.
• Keywords: Condonation of delay
• Section: 143(3); 153A; 250; 153

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, ‘A’ BENCH LUCKNOW ITAT-Lucknow Page 1 of 8 BEFORE HON’BLE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER AND G. D. PADMAHSHALI, ACCOUNTANT MEMBER आयकर अपील स ं . / ITA No.365 & 366/LKW/2018 निर्धारण वर्ा / Assessment Year : 2005-06 & 2008-09 Abusaad Ahmad 4/202, Vishal Khand, Gomti Nagar, Lucknow-226010 PAN: ABBPA5779N . . . . . . . अपीलार्थी / Appellant बिधम / V/s. Asstt. Commissioner of Income Tax Central Circle-1, Lucknow . . . . . . . प्रत्यर्थी / Respondent द्वधरध / Appearances Assessee by : None for the Assessee Revenue by : Smt Namita Pandey [‘Ld. DR’] स ु नवाई की तारीख / Date of conclusive Hearing : 03/07/2024 घोषणा की तारीख / Date of Pronouncement : 03/07/2024 आदेश / ORDER PER BENCH; These twin appeals are filed u/s 253(1)(a) of the Income Tax Act [‘the Act’] by the assessee challenging the separate orders of Ld. Commissioner of Income Tax- Appeals-III, Lucknow [be referred as ‘CIT(A)’] dt. 13/10/2015 & dt. 14/10/2015 both passed u/s 250 of the Act which in turn arisen out of respective assessment orders both dt. 31/03/2013 passed u/s 143(3) r.w.s. 153A of the Act. 2. Since the facts and issue involved in this twin appeals are identical, on the request of party present, for the sake of brevity these appeals petitions are heard together for a common and consolidated order. Abusaad Ahmad Vs ACIT ITA No.363 & 366/LKW/2018 ITAT-Lucknow Page 2 of 8 3. At the physical hearing, this bunch of appeals was called twice for hearing, none present at the bequest of the appellant assessee and further there is no application/request for adjournment on record. The order-sheet entries ostensibly reveals that, these matters were instituted on 02/05/2018 and since then matter witnessed thirty-four hearings. In absence of appellant upon primary briefing from the Ld. DR, the bench deem it fit to proceed ex-parte u/r 24 of ITAT-Rules, 1963 and adjudicate the matter with the able assistance from the Revenue. 4. At the outset of the hearing, without touching the merits of the cases, the Ld. DR Smt Pandey submitted that, the present appeals are filed by the appellant assessee with an inordinate delay of 867 days (in each case) from the expiry of the statutory time limit prescribed for filing appeal u/s 253(3) of the Act before the Tribunal. Adverting to condonation petition it is further submitted that, the prayer of the assessee for condonation of delay is supported by affidavits executed both by the appellant as well as his driver stating therein that, the delay in filing these appeals were unintentional and solely attributable to drivers’ ignorance who kept the copies of first appellate orders in a garage and did not inform the assessee upon their receipts. Objecting the admission of appeal in-limine, the Ld. DR averred that, the reasons given in support of delay prima-facie seems to be flimsy and unconvicting. The appellant neither through condonation petition nor through affidavit did showcase any seriousness in obtaining copies of impugned orders and further any steps taken in filing the appeal thereagainst. There is complete absence details giving chronological event & number of delays caused at various stages. Since the petition, affidavit & the payer is make-belief documents, hence deserves to be jettisoned. Abusaad Ahmad Vs ACIT ITA No.363 & 366/LKW/2018 ITAT-Lucknow Page 3 of 8 5. The Ld. DR avowed further that, since the assessee did neither had any sufficient reasons nor he could bring one on record. The affidavit badly lacks from identifying exact number delay and from affirming such delay occurred was under bonafied belief. Hence the assessee deserves no relief on the ground of limitation. To drive home this contention the Ld. DR has strongly pressed into service the ratio laid in ‘Basawaraj & Anr Vs Spl Land Acquisition Officer’ [2014, AIR 746 (SC)] and ‘Siva Industries & Holding Ltd. Vs ACIT’ [2024, 153 Taxmann.com 354 (Mad)] 6. We have heard the Ld. Revenue on the limited issue of limitation; and subject to rule 18 of ITAT-Rules, 1963 perused the material placed on records, considered the facts of the case in the light of settled legal position. 2. We note that the impugned first appellate orders dt. 13/10/2015 & 14/10/2015 passed u/s 250 of the Act were communicated & were admittedly received by the appellant on 17/10/2015. In terms of provisions of section 253(3) of the Act, the appeals thereagainst were required to be filed within sixty days from the date on which such impugned orders were received by the assessee. However, the instant twin appeals against impugned orders are admittedly filed with a delay of 867 days from the expiry of statutory period prescribed u/s 253(3) of the Act. Thus, the appeal is time barred by limitation and deserves to be dismissed in-limine if not supported by the sufficient reasons behind such delay in terms of section 253(5) of the Act. So, before we procced to adjudicate the appeal on merits, this limitation has taken us to vouch first as to ‘whether appellant assessee had and have explained sufficient cause beyond the inordinate delay in filing the present appeal or not?’ Abusaad Ahmad Vs ACIT ITA No.363 & 366/LKW/2018 ITAT-Lucknow Page 4 of 8 3. Before we advert to the merits of the prayer for condonation of delay and sufficiency of reasons behind the delay occurred in instituting the present appeals, let us first consider the core principles that has been culled out by the Hon'ble Supreme court in ‘Esha Bhattacharjee Vs Managing committee of Raghunathpur Academy and Ors’ reported in 12 SCC 649, which are compelling to be referred herein before we could actually vouch the sufficiency of reasons; (a) Lack of bonafied imputable to a party seeking condonation of delay is a significant and relevant fact; (b) The concept of liberal approach has to encapsulate the conception of reasonableness and totally unfettered free play is not allowed; (c) The conduct, behaviour and attitude of a party relating to its negligence cannot be given a total go-bye in the name of liberal approach. (d) If the explanation offered is concocted or the grounds urged in the applications are fanciful, the Courts should be vigilant not to expose the other side unnecessarily to face such litigation. (e) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of the law of limitation. (f) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the Courts are required to condone the delay on the bedrock of the principle that adjudication of lis on merits is seminal to justice dispensation system; (g) The increasing tendency to perceive the delay as a non- serious matter and hence lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, with legal parameters. (Emphasis supplied) Abusaad Ahmad Vs ACIT ITA No.363 & 366/LKW/2018 ITAT-Lucknow Page 5 of 8 4. With this de lege lata, we have to examine as to whether the reasons put forth by appellant assessee expanses cause of sufficienso within the purview of s/s (5) of section 253 of the Act or not? 5. It is evident from the averments made in application/affidavit for condonation of delay filed by the appellant assessee that, the copies of first appellate orders were received immediately by the driver who kept them in garage and during the course of assessment of subsequent year it came to the knowledge of the assessee that appeals against the impugned orders were remained to be filed. The sum and substance of appellant’s version is that, delay was attributable to gross negligence of driver. The impugned orders were collected by the driver on his behalf who forgot to deliver the same to the assessee in time owning to which the said delay occurred. 6. After holistic consideration of affidavits, petitions for condonation of delay & other relevant material placed on record, we find that the averments in the application/affidavit are vague and not corroborated by any independent evidence while no or much less sufficient reasons for delay in filing the appeal attributable to appellant have been submitted, except narrating the ignorance of driver who claimed have forgot to hand over the orders to the assessee. There is neither a plausible explanation in the averments nor any whisper in the entire application/affidavit regarding a single step taken by appellant to showcase the required seriousness, and not even an affirmation that the delay was undeliberate but an accidental drive. There is lack of bonafide even in explaining the delay and there is even complete absence of ground for condonation in the appeals memo. Abusaad Ahmad Vs ACIT ITA No.363 & 366/LKW/2018 ITAT-Lucknow Page 6 of 8 7. In our considered view the assessee had failed to demonstrate that there was ‘sufficient cause’ or ‘sufficient reason’ behind the immoderate delay of 867 days in filing present twin appeals. It is also on record that, the affidavit did also fail to establish that the said delay was undeliberate in any manner. In this circumstance, we see no reasons in not countenancing with the views canvassed by the Ld. DR that, the true length of delay is no matter, but acceptability of explanation is the only criteria as the primary function of Tribunal is to adjudicate dispute to advance substantial justice. 8. On the other hand, the facts and circumstance, contents of and reasoning laid in the affidavits placed on records for our consideration per-se capable of suggesting clearly that, the appellant assessee was not at all vigilant rather appellant was admittedly negligent in dealing with the instant twin appeals. In the event in our considered view the delay in filing the present twin appeals stands unsupported by adequate, enough & sufficient reasons. 9. The Hon'ble Supreme Court vide para 15 has summarized the law on the issue in ‘Basawaraj and Anr Vs Special Land Acquisition Officer’ [L4 SSC 8U(SC)] as; "15. The law on the issue can be summarized to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide 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. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature". (Emphasis supplied) Abusaad Ahmad Vs ACIT ITA No.363 & 366/LKW/2018 ITAT-Lucknow Page 7 of 8 10. It is the trite law that, the burden is on the party claiming condonation of delay to place before the appellate authority, in clear and explicit terms, all facts on which the party relies, so that the appellate authority/court can come to the conclusion that it is not a case of want of diligence or inaction on the part of the applicant. In the case under consideration, admittedly, the assessee has not shown any action or vigilance for a period of more than 867 days after the impugned orders was served upon him. The appellant assessee has not proved any inaction or negligence on the part of a third party, much less have they pleaded any action or vigilance on their own part. The assessee did not care to file present twin appeals for nearly for two- and half-year posterior to passing/communication of impugned orders. The averments made in the application/affidavit by the assessee are not corroborated by any evidence so as to establish ‘sufficient cause’. Thus, the appellant assessee has failed to make out a case that there was sufficient cause for delay in filing the appeal as the assessee remained negligent and did not initiate any steps at all. Inaction and want of diligence on the part of the appellant/applicant would not entitle it to the benefit of the provisions of section 253(5) of the Act. Therefore, keeping in view the propositions of law laid down by the judicial precedents pressed into service and having regard to the totality of the facts and circumstances of present case as discussed above, in our considered view the appellant is found to be casual, non-serious and non-vigilant in preferring/instituting the instant twin appeals against the former impugned orders. Hence, in order to avoid injustice to respondent revenue, application for condonation of delay being devoid of reasonable and sufficient cause or much less cause, merits dismissal. Consequently, the instant twin appeals stands dismissed in-limine on the grounds of limitation. Abusaad Ahmad Vs ACIT ITA No.363 & 366/LKW/2018 ITAT-Lucknow Page 8 of 8 7. These twin appeals of the assessee in result stands DISMISSED. In terms of rule 34 of ITAT Rules, the orders are pronounced in the open court on this Wednesday, 03rd day of July, 2024 -S/d- -S/d- SUDHANSHU SRIVASTAVA G. D. PADMAHSHALI JUDICIAL MEMBER ACCOUNTANT MEMBER Lucknow ; दिना ां क / Dated : 03 rd Day of July, 2024 आदेश की प्रनिनलनप अग्रेनर्ि / Copy of the Order forwarded to : 1. अपीलार्थी / The Appellant. 2. प्रत्यर्थी / The Respondent. 3. The CIT(A)-NFAC, Delhi (India) 4. The Concerned CIT 5. DR, ITAT, Bench ‘A’, Lucknow 6. गार्डफ़ाइल / Guard File. आिेशान ु सार / By Order, वररष्ठ दनजी सदिव / Sr. Private Secretary आयकर अपीलीय न्यायादिकरण, प ु णे / ITAT, Lucknow