Ms. POOJA SAHU, Bhopal V. THE ACIT 1(2), Bhopal

ITSSA 82/IND/2015

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 2786 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 6 month(s) 30 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 20-12-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 05-12-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 21-05-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S S DESHPANDE
• Assessee Lawyers: LALCHAND
• Keywords: Sale consideration of property below Jantri Value; Search and seizure; Loose papers; Principle of natural justice; Period of limitation; Competent authority; Condonation of delay
• Section: 143(3); 50C; 54F; 153A; 139

Judgement Text

IT(SS)A NO. 82/IND/2015 MISS POOJA SAHU 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE .., ..!', #$ # !% BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER IT(SS)A NO. 82/IND/2015 ASSESSMENT YEAR: 2010-11 MISS POOJA SAHU BHOPAL PAN ALXPS 4840G :: APPELLANT VS ACIT 1(2) BHOPAL :: RESPONDENT ASSESSEE BY SHRI S.S. DESHPANDE ASSESSEE BY SHRI LALCHAND !' DATE OF HEARING 5.12.2016 #$%& !' DATE OF PRONOUNCEMENT 20.12.2016 ( O R D E R PER SHRI D.T. GARASIA, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED CIT(A)-I, BHOPAL, DATED 12.30.20 15. IT(SS)A NO. 82/IND/2015 MISS POOJA SAHU 2 2. THE SHORT FACTS OF THE CASE ARE THAT THE ASSESSEE DID NOT FILE THE RETURN OF INCOME WITHIN THE TIME SPECI FIED U/S 139 OF THE ACT. SEARCH AND SEIZURE OPERATIONS WERE CONDUCTED U/S 132(1) OF THE ACT AT THE RESIDENTIAL PR EMISES OF SHRI ANIL LILA, LILA DHAM, BANSILAL NAGAR, AURANGABAD AND SHRI MOHAN LILA, 64, MALVIYA NAGAR, BHOPAL. DURING THE CORUSE OF SEASRCH VARIOUS DOCUMENTS BELONGING TO THE ASSESSEE WERE FOUND AND SEIZED AS PER LPS-4/1 PAGES 1 T O 99 OF PANCHNAMA DATED 28.10.2010 IN THE CASE OF SHRI MOHAN LILA. THE ASSESSING OFFICER RECORDED SATISFACTION U/S 153C OF THE ACT AND ISSUED NOTICE U/S 153A OF THE AC T REQUIRING THE ASSESSEE TO FILE THE RO9I INCLUDING FOR THE ASSESSMENT YEAR 2010-11 UNDER CONSIDERATION. THE COP Y OF THE SATISFACTION RECORDED U/S 153C OF THE ACT ALONG WI TH RELEVANT LOOSE PAPERS WERE SUPPLIED TO THE ASSESSEE ON 4.2.2013 IN RESPONSE TO WHICH THE ASSESSEE FURNISHED THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2010-11 ON IT(SS)A NO. 82/IND/2015 MISS POOJA SAHU 3 24.12.2012 U/S 153A DECLARING INCOME OF RS. 11,900/0 ONLY. THE ASSESSEE SHOWD INCOME FROM INTEREST OF RS.11,900/-. THE ASSESSEE HAS ALSO SHOWN INCOME FROM LONG TERM CAPITAL GAINS ON SALE OF ASSETS AS UNDER :- LONG TERM CAPITAL GAIN PROPERTY AT DHAMKHEDA 17.3.2010 VALUE U/S 50C 3830600 SALE CONSIDERATION RECEIVED 3750000 SALES CONSIDERATION 3830600 LESS : TRANSFER EXPENSES 413995 3416605 LESS : INDEXED COST PURCHASE VALUE 125581 PURCHASE VALUE F.Y. 2003-04 92000/463*632 STAMP DUTY & FEE PAID 146755 272336 3144269 DEDUCTION U/S 54F 1400649 DEDUCTION U/S 54D 1743620 3144269 0 ____ THE ASSESSING OFFICER FURTHER NOTICED THAT THE ASSESS EE HAS SOLD COMMERCIAL LAND TO MOHAL LILA AND THE TOTAL VALUE IT(SS)A NO. 82/IND/2015 MISS POOJA SAHU 4 DETERMINED BY THE STAMP DUTY AUTHORITY WAS RS. 43,90,000/- WHILE THE ASSESSEE HAS SHOWN THE PROPERTY FOR CONSIDERATION OF RS. 38,30,600/-. THE ASSESSING OFF ICER FURTHER FOUND THAT THE ASSESSEE HAS CLAIMED EXEMPTION U /S 54F OF RS. 14,00,649/- FOR INVESTMENT IN PURCHASE OF A FLAT FOR RS. 18,42,195/- AT G-2, PLOT NO. 09-A, AANCHAL APARTMENT, PROFESSOR COLONY, CIVIL LINES, BHOPAL BUT IT WAS FOUND THAT THIS INVESTMENT WAS MADE ON 26.3.2011 I.E. AFTER THE EXPIRY OF ONE YEAR FROM THE DATE OF SALE OF C APITAL ASSETS BY THE ASSESSEE. HENCE, THE ASSESSING OFFICE R HELD THAT THE ASSESSEE WAS NOT ELIGIBLE FOR ANY EXEMPTION U/ S 54F OF THE ACT BECAUSE THE ASSESSEE HAD NOT MADE INVESTMENT IN THE PURCHASE OF NEW PROPERTY WITHIN ON E YEAR FROM THE DATE ON WHICH THE TRANSFER OF THE ORIGINAL ASS ET TOOK PLACE. THE ASSESSEE DID NOT MAKE ANY INVESTMENT BEFORE THE DUE DATE OF FILING OF RETURN U/S 139(1) O F THE ACT I.E. 31.7.2010 FOR THE ASSESSMENT YEAR 2010-11 UNDER IT(SS)A NO. 82/IND/2015 MISS POOJA SAHU 5 CONSIDERATION. THE ASSESSEE SHOULD HAVE DEPOSITED TH E CONSIDERATION IN THE CAPITAL GAINS ACCOUNT WHICH WAS NOT DONE AND, THEREFORE, THE ASSESSEE HAD NOT FULFILLED TH E CONDITIONS ENSHRINED UNDER SECTION 54F(4) OF THE AC T. THE ASSESSING OFFICER, THEREFORE, DISALLOWED THE CLAIM U/ S 54F AND IN RESPECT OF THE CLAIM U/S 54D OF THE ACT THE ASSESSING OFFICER FOUND THAT SECTION 54D EXEMPTION IS AVAILABLE TO THEN ASSESSEES WHERE THE LAND AND BUILDING ARE COMPULSORILY ACQUIRED BY THE COMPETENT AUTHORITY WHERE AS IN THE CASE OF THE ASSESSEE SHE HAD SOLD THE PLOT HERS ELF AND THERE WAS NO COMPULSORY ACQUISITION WHATSOEVER. TH E ASSESSING OFFICER, THEREFORE, DISALLOWED THE CLAIM U/ S 54D OF THE ACT AND THE ASSESSMENT WAS COMPLETED U/S 153C R.W.S. 143(3) OF THE ACT. 3. THE ASSESSEE FILED APPEAL BEFORE THE LEARNED CIT(A) ON 13.12.2013 AGAINST THE ASSESSMENT ORDER PASSED ON 25.3.2013 SHOWING THE DATE OF SERVICE OF THE ASSESSME NT IT(SS)A NO. 82/IND/2015 MISS POOJA SAHU 6 ORDER AS 31.3.2013. AS PER SECTION 249(2) OF THE AC T THE APPEAL SHALL BE PRESENTED WITHIN 30 DAYS FOLLOWING THE DATE OF SERVICE OF NOTICE OF DEMAND RELATING TO THE ASSESSM ENT. THEREFORE, THE APPEAL WAS DELAYED BY 227 DAYS. THE LEARNED CIT(A) DISMISSED THE APPEAL BY OBSERVING AS UND ER :- 6. THE ABOVE AFFIDAVIT OF THE APPELLANT AND APPLICATION FOR CONDONATION WERE DULY CONSIDERED. I T MAY BE NOTED THAT THE APPELLANT THOUGH CONTENDED THAT DELAY WAS ON THE PART OF THE COUNSEL OF THE APPELLANT BUT SHE HAD NOT FURNISHED ANY CONFIRMATION OR AFFIDAVIT FROM THE COUNSEL AFFIRMIN G THE FACTS CLAIMED BY THE APPELLANT. FROM THE FACTS OF THE CASE, IT WAS NOTICED THAT (I) NEITHER THE APPELLANT NOR THE COUNSEL HAD GIVEN ANY SPECIFIC AND GENUINE REASON TO DEMONSTRATE THAT THERE EXISTED A REASONABLE IT(SS)A NO. 82/IND/2015 MISS POOJA SAHU 7 AND SUFFICIENT CAUSE TO CONDONE THE DELAY. IT IS A TRITE LAW THAT IT IS THE BURDEN OF THE APPELLANT TO EXPLAIN THE DELAY OF EVERY DAY IN A REASONABLE MANNER. (II) THE ASSESSMENT HAD RESULTED IN HUGE ADDITION AND HEAVY DEMAND OF TAX & INTEREST WAS RAISED. THIS WAS A SERIOUS MATTER, WHICH IN NORMAL CIRCUMSTANCES WOULD REQUIRE FREQUENT MEETINGS AND CONSULTATIONS BETWEEN THE APPELLANT AND HER COUNSEL TO ANALYSE THE ISSUES. SUCH MATTERS COULD NOT BE LEFT TO GET AND FORGOT THE PAPERS ATTITUDE OF THE COUNSEL. THE THEORY IS VAGUE AND TOO NAVE TO BE BELIEVED. (III) IN THE AFFIDAVIT OF THE APPELLANT EVEN THE PARTICULAR DATE ON WHICH THE SAID PAPERS WERE CLAIMED TO BE HANDED OVER TO SHRI SANJAY IT(SS)A NO. 82/IND/2015 MISS POOJA SAHU 8 VERMA, ADVOCATE, WAS NOT MENTIONED AND SIMPLY STATED THAT THE SAID ASSESSMENT ORDER WAS HANDED OVER TO HIM TO FILE APPEAL BEFORE THE DUE DATE. IT IS ALSO SURPRISING TO NOTE THAT THE APPELLANT DID NOT REMIND THE COUNSEL DURING THE PERIOD OF ABOUT 8 MONTHS ABOUT NOT FILING OF SUCH IMPORTANT AND HIGH DEMAND APPEAL. (IV) SHRI SANJAY VERMA, ADVOCATE, HAD NOT FILED ANY AFFIDAVIT TO CORROBORATE THE VERSION OF THE APPELLANT THAT THE DOCUMENTS WERE HANDED OVER TO HIM AND DUE TO HIS OVER SIGHT, THE APPEAL WAS NOT FILED WITHIN DUE DATE. (V) THE SUBMISSION MADE BY THE APPELLANT IS GENERAL IN NATURE AND VAGUE. IT DOES NOT EXPLAIN THE DELAY ON DAY TO DAY BASIS AND IT(SS)A NO. 82/IND/2015 MISS POOJA SAHU 9 THERE ARE NO REASONABLE AND CONVINCING AVERMENTS IN THE AFFIDAVIT. IT MAY BE NOTED THAT THE DELAY IS NOT FOR A FEW DAYS BUT FOR 227 DAYS. IT IS ALSO PERTINENT TO NOTE THAT THE APPELLANT HAD FILED THIS APPEAL ONLY AFTER PENALTY U/S 271(1)(C) OF THE ACT WAS LEVIED IN THIS CASE FOR A.Y. 2010-11 VIDE ORDER DATED 27.09.2013. IT IS CLEAR THAT AT THE INITIAL STAGE WHEN THE ASSESSMENT ORDER WAS SERVED ON THE APPELLANT, SHE HAD DECIDED NOT TO FILE ANY APPEAL AGAINST THE SAID ASSESSMENT ORDER AND THE APPEAL WAS FILED AS AN AFTERTHOUGHT WHEN THE PENALTY U/S 271(1)(C ) OF THE ACT WAS LEVIED. IF SUCH A DELIBER ATE DELAY IS CONDONED ON VAGUE PLEADING, IT WOULD BE AGAINST THE LAW OF LIMITATIONS. IT IS ALSO A SETTLE D PRINCIPLE OF NATURAL JUSTICE THAT THE UNDUE DELAY DEFEATS EQUITY. I AM OF THE CONSIDERED VIEW THAT IT(SS)A NO. 82/IND/2015 MISS POOJA SAHU 10 LAW ASSISTS THOSE WHO ARE VIGILANT AND NOT THOSE WHO SLEEP OVER THEIR RIGHTS. THIS PRINCIPLE IS EMBODIED IN THE WELL KNOWN DICTUM; VIGILANTBUS NON DORMETIBUS, JURA SUBVENIENT. THEREFORE, CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE, I AM OF THE OPINION THAT THE CONTENT O F THE AFFIDAVIT AND CONDUCT OF THE APPELLANT DO NOT CONSTITUTE SUFFICIENT REASONS FOR CONDONATION OF SUCH A PROLONGED DELAY OF 227 DAYS IN FILING OF THE APPEAL. I AM, THUS, NOT SATISFIED THAT THE APPELLAN T HAD SUFFICIENT CAUSE FOR NOT PRESENTING IT WITHIN T HE SPECIFIED TIME AND HENCE THE APPEAL IS NOT ADMITTED. 6. THE HON'BLE ITAT, JAIPUR BENCH, JAIPUR HAD AN OCCASION TO CONSIDER THE SIMILAR ISSUE IN A RECENT CASE OF M/S K.G.N.M.M.W EDUCATIONAL RESEARCH & ANALYSIS SOCIETY JHALAWAR VS. ITO IN ITA NOS. IT(SS)A NO. 82/IND/2015 MISS POOJA SAHU 11 402 & 03/JP/2012 FOR A.Y. 2005-06 & A.,Y. 2006- 07 ORDER DATED 13.02.2015. IN THIS CASE ALSO, THERE WAS A DELAY OF FILING APPEAL BY 347 DAYS. THE ASSESSEE SUBMITTED THAT THE PAPERS WERE HANDED OVER TO THE CHARTERED ACCOUNTANT FOR NECESSACTION ACTION WHO KEPT THE PAPERS WITH HIM FOR FILING THE APPEAL BEFORE THE ITAT. HOWEVER, HE WENT OUT OF STATION FOR BANK AUDIT AND WHEN RETURNED BACK, THE FILING OF APPEAL BEFORE ITAT SKIPPED HIS MIND AND PAPERS WERE FILED IN HIS RECORDS. THE ASSESSEE APPROACHED THE COUNSEL WHEN THE TRO ISSUED NOTICE FOR RECOVERY. AT THAT STAGE ONLY, THE APPEAL WAS FILED. IT WAS PLEADED THAT THE ASSESSEE SHOULD NOT SUFFER OVER THE MISTAKE COMMITTED BY THE CA. IT WAS CONTENDED THAT AS THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE IN FILING THE APPEALS IN TIME, THE DELAY OF IT(SS)A NO. 82/IND/2015 MISS POOJA SAHU 12 347 DAYS MAY BE CONDONED. BUT THE HON'BLE ITAT, AFTER CONSIDERING THE FACTS OF THE CASE DECLINED TO CONDONE THE DELAY IN FILING THESE APPEALS AND APPEALS WERE DISMISSED. THE RELEVANT PORTION OF THE DECISION IS REPRODUCED AS UNDER :- 9. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. WE FIND MERIT IN THE CONTENTIONS OF LEARNED DR. THE ASSESSEE HAS ONLY FILED A VAGUE AND GENERAL AFFIDAVIT FROM THE CA WHICH UTTERLY LACKS ANY SPECIFIC CONTENTIONS AND FAILS TO EXPLAIN DAY TO DAY DELAY IN REASONABLE MANNER. THE ASSESSEE HAS NEITHER FILED ANY EVIDENCE NOR THE AFFIDAVIT OF SHRI MALIK PARVEJ TO CORROBORATE THE VAGUE AFFIDAVIT BY THE CA. IT DOES NOT CONFORM TO GENERAL HUMAN CONDUCT IN SUCH CIRCUMSTANCES, PREPONDERANCE OF PROBABILITIES AND SURROUNDING IT(SS)A NO. 82/IND/2015 MISS POOJA SAHU 13 CIRCUMSTANCES WHICH FROM SINE QUA NON IN THE MATTERS OF CONDONATION OF DELAY. IT IS UNBELIEVABLE THAT AN ASSESSEE WHOSE TAXABLE INCOME IS CLAIMED TO BE NIL IS TAXED FOR TWO YEARS ASSESSED AT SUCH A HIGH INCOME RESULTING IN A HUGE TAX AND INTEREST DEMAND WILL NOT CISIT THE CA OFFICE ALMOST FOR A PERIOD OF ABOUT ONE YEAR TO KNOW ABOUT THE FILING O F THE APPEALS. THERE IS NO DEPOSITION IN THE AFFIDAVI T THAT PRIOR TO TRO NOTICE DATED 02.3.2012, NO OTHER NOTICE BY WAY OF TELEPHONE OR WRITING WAS RECEIVED EITHER BY ASSESSEE OR THE CA. THUS, THE DEPOSITIONS IN AFFIDAVIT REMAIN VAGUE, INSUBSTANTIATED AND DO NOT AMOUNT TO EXPLAINING THE SUFFICIENT CAUSE. 10. THE AFFIDAVIT AND CAVALIER CONDUCT OF SHRI KAUSHAL AGARWAL, CA, RAISES SERIOUS QUESTIONS ON HIS PROFESSIONAL COMPETENCE AND WORK ETHICS IN IT(SS)A NO. 82/IND/2015 MISS POOJA SAHU 14 GIVING SUCH AN AFFIDAVIT WHICH HIDES MORE THAN IT EXPLAINS. THE BURDEN IS ON THE ASSESSEE TO REASONABLY EXPLAIN DAY TO DAY DELAY AND ESTABLISH THAT THERE EXISTED REASONABLE AND SUFFICIENT CAUSE IN DELAYING THE FILING OF APPEALS FOR ABOUT 1 YEAR. IF THE PROPER DATES OR OCCASIOSN ARE NOT MENTIONED WITH PROPER FACTS THEN THE DELAY CANNOT BE CONDONED. IN THIS BEHALF, WE RELY ON THE DECISION O F THE HON'BLE MADRAS HIGH COURT IN THE CASE OF MADHU DADHA VS. ACIT (2009) 317 ITR 458 (MAD.). THE HON'BLE HIGH COURT HAS HELD AS UNDER :- HELD, DISMISSING THE APPELLANT, THAT IT WAS CLEAR THAT THE ASSESSEE HAD NOT EXPLAINED THE CAUSE OF DELAY IN FILING THE APPEAL, ESPECIALLY WHEN THE AUTHORISED REPRESENTATIVE WHO WAS GIVEN CHARGE TO FILE THE APPEAL HAD DIED EXACTLY ONE YEAR AFTER THE LAST DATE FOR FILLING OF THE APP EAL. IT(SS)A NO. 82/IND/2015 MISS POOJA SAHU 15 EVEN AFTER THE DEATH OF THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE HAD TAKEN MORE THAN SIX MONTHS TO FILE THE APPEAL. THE ASSESSEE HAD NEITHER GIVEN ANY PARTICULAR OR DETAILS IN THE AFFIDAVIT AS TO THE DATE ON WHICH THE PAPERS WERE HANDED OVER TO THE COUNSEL FOR PREPARING THE APPEAL AND ON WHAT OCCASION THE ASSESSEE ENQUIRED ABOUT THE PROGRESS IN PREPARING THE APPEAL AND FILING IT. THE ASSESSEE HAD NOT TAKEN A PROPER PLEA TO SHOW SUFFICIENT CAUSE GIVING EVIDENCE AND PROOF BEYOND REASONABLE DOUBT FOR THE DELAY. THERE WAS NO NEED TO INTERFERE WITH THE ORDER OF THE TRIBUNAL. IN THIS JUDGMENT THE HON'BLE SUPREME COURT CITATION I.E. COLLECTOR, LAND ACQUISITION VS. MST. KATIJI (S UPRA) HAS ALSO BEEN CONSIDERED. WE FIND MERIT IN THE CONTENTIONS OF LD. DR THAT LAW HELPS DILIGENT AND N OT IT(SS)A NO. 82/IND/2015 MISS POOJA SAHU 16 THE INDOLENT AS WELL AS THE AXIOMATIC DELAY DEFEATS EQUITY. IN OUR CONSIDERED VIEW THAT THE CONDONATION PETITIONS FILED BY THE ASSESSEE AND MATERIAL AVAILA BLE ON THE RECORD, FAIL TO INVOKE ANY CONFIDENCE FAIL T O EXPLAIN REASONABLE AND SUFFICIENT CAUSE FOR CONDONATION OF LONG DELAY OF 347 DAYS IN FILING THE SE APPEALS. THE ASSESSEE HAS TO COME CLEAN WITH ALL TH E RELEVANT FACTS WHICH HAPPENED IN THE PERIOD OF ONE YEAR. THEASS HAS TO EXPLAIN ALL THE EVENTS AND BE SPECIFIC IN THE DATES. THE DEPOSITIONS MADE IN THE C.A. AFFIDAVIT REMAIN UNCORROBORATED AND THERE IS NO AFFIDAVIT FROM THE SAID SHRI MALIK PARVEJ IN SUPPOR T OF THE AFFIDAVIT OF C.A. THUS, THE VAGUE AFFIDAVIT GIV EN BY THE C.A. REMAINS UNCORROBORATED AND UNRELIABLE. IN THE ENTIRETY OF FACTS AND CIRCUMSTANCES OF THE CASE , WE DECLINE TO CONDONE THE DELAY OF 347 DAYS IN FILING THESE APPEALS. IT(SS)A NO. 82/IND/2015 MISS POOJA SAHU 17 11. IN THE RESULT, BOTH THE ASSESSEES APPEALS ARE DISMISSED. 6.2 THE HON'BLE ITAT CHENNAI IN THE CASE OF SRI VENKATESA PAPER & BOARDS LTD. VS. DCIT (2006) 98 ITD 300 (CHENNAI) OBSERVED AS UNDER :- AS PER THE PROVISIONS OF SECTION 249(3),THERE SHO ULD BE SUFFICIENT CAUSE FOR THE ASSESSEE FOR NOT PRESEN TING THE APPEAL WITHIN THE TIME ALLOWED. UNDER SECTION 249(3) THE APPELLANT AUTHORITY MAY, ON GOOD AND SUFFICIENT REASON FOR THE DELAY SHOWN, ADMIT AN APPEAL AFTER THE EXPIRY OF THE PERIOD OF LIMITATION . BUT THE PERIOD FOR FILING OF AN APPEAL CANNOT BE EXTEND ED SIMPLY BECAUSE THE APPELLANTS CASE IS HARD AND CAL LS FOR SYMPATHY OR MERELY OUT OF BENEVOLENCE TO THE PA RTY SEEKING RELIEF. IN GRANTING THE INDULGENCE AND CONDONING THE DELAY, THE APPELLATE AUTHORITY MUST B E SATISFIED THAT THERE HAD BEEN DILIGENCE ON THE PART OF IT(SS)A NO. 82/IND/2015 MISS POOJA SAHU 18 THE APPELLANT AND IT WAS NOT GUILTY OF NEGLIGENCE O R WHATSOEVER. THE SUFFICIENT CAUSE WITHIN THE CONTEMPLATION OF THESE PROVISIONS MUST BE A CAUSE WHICH IS BEYOND THE CONTROL OF THE PARTY INVOKING T HE AID OF THE PROVISIONS. THE CAUSE FOR DELAY IN FILIN G THE APPEAL, WHICH BY DUE CARE AND ATTENTION COULD HAVE BEEN AVOIDED, CANNOT BE SUFFICIENT CAUSE WITHIN THE MEANING OF THESE PROVISIONS. 6.3 IN VIEW OF THE ABOVE, I AM OF THE CONSIDERED VIEW THAT THE APPLICATION FILED FOR CONDONATION BY THE APPELLANT AND MATERIAL AVAILABLE ON RECORD FAILED T O EXPLAIN ANY REASONABLE AND SUFFICIENT CAUSE FOR NOT FURNISHING THE APPEAL WITHIN THE SPECIFIED TIME AND FOR CONDONATION OF LONG DELAY OF 227 DAYS IN FILING THE APPEAL. THEREFORE, THE DELAY IN FILING THE APPEAL F OR 227 DAYS IS NOT CONDONED AND THE APPEAL IS NOT ADMITTED. HENCE, THE APPEAL IS DISMISSED. IT(SS)A NO. 82/IND/2015 MISS POOJA SAHU 19 4. DURING THE COURSE OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSMENT ORDER WAS PASSED ON 25.3.2015 AND IT WAS DULY SERVED IN THE MONTH OF MARCH, 2013. THE SAID ORDER WAS HANDED OVER TO SHRI SANJAY VERMA, ADVOCATE, BHOPAL, TO FILE THE APPEAL BEFORE THE CONCERNED AUTHORITY. THE AFORESAID ADVOCATE COULD NOT FILED THE APPEAL BEFORE THE DUE DATE. THEREAFTER, THE ASSESSEE FILED THE APPEAL THROUGH HIS COUNSEL ON 13.12.2013. THE ASSESSEE DOES NOT UNDERSTAND THE PROCEDURE AND COMPLEXITY OF LAW. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED TH AT THE ASSESSEES ADVOCATE, SHRI SANJAY VERMA DID NOT FILE THE APPEAL AND IT IS THE FAULT OF THE ADVOCATE. THE ASSESSEE SHOULD NOT SUFFER FOR THE NEGLIGENCE OF THE COUNSEL AND THE APPEAL CANNOT BE DISMISSED BECAUSE HE FAILED TO APPEAR WHEN THE CASE WAS POSTED FOR HEARING. HE RELIED UPON THE DECISION OF THE HON'BLE M.P.HIGH IT(SS)A NO. 82/IND/2015 MISS POOJA SAHU 20 COURT IN THE CASE OF MAHAVEER PRASAD JAIN VS. CIT; MCC NO. 95 OF 1987. HE ALSO RELIED UPON THE DECISION OF THE HON'BLE M.P. HIGH COURT IN THE CASE OF CIT VS. KHEMR A J LAXMICHAND; 114 ITR 75. 5. ON THE OTHER HAND, THE LEARNED DR RELIED UPON THE ORDERS OF THE REVENUE AUTHORITIES AND THE DECISION OF THIS BENCH OF THE TRIBUNAL IN THE CASE OF SHRI HARISH JHAMNANI; ITA NO. 704/IND/2015 DATED 5.9.2016. 6. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE SIDES. THIS BENCH HAD AN OCCASION TO CONSIDER AN IDENTICAL ISSUE IN THE CASE OF SHRI HARISH JHAMNANI VS. ITO; IN ITA NO. 704/IND/2015 WHEREIN VIDE ITS ORDE R DATED 5.9.2016 THE TRIBUNAL OBSERVED AS UNDER :- 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 IT(SS)A NO. 82/IND/2015 MISS POOJA SAHU 21 ' SUFFICIENT CAUSE ' AS CONTAINED IN THE LIMITATION ACT. THE SUPREME COURT, WHILE DEALING WITH VARIOUS AUTHORITIES ON THE SUBJECT, HAS RULLED OUT PRINCIPL ES, WHICH ARE REPRODUCED HEREUNDER :- 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 IT(SS)A NO. 82/IND/2015 MISS POOJA SAHU 22 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. 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 IT(SS)A NO. 82/IND/2015 MISS POOJA SAHU 23 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 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 IT(SS)A NO. 82/IND/2015 MISS POOJA SAHU 24 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 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 IT(SS)A NO. 82/IND/2015 MISS POOJA SAHU 25 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 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 IT(SS)A NO. 82/IND/2015 MISS POOJA SAHU 26 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 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 IT(SS)A NO. 82/IND/2015 MISS POOJA SAHU 27 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 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 IT(SS)A NO. 82/IND/2015 MISS POOJA SAHU 28 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 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 IT(SS)A NO. 82/IND/2015 MISS POOJA SAHU 29 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. (V) WANT OF DILIGENCE OR INACTION CAN BE ATTRIB UTED 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 IT(SS)A NO. 82/IND/2015 MISS POOJA SAHU 30 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 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 DISCUSSE D ALL THE RELEVANT JUDGMENTS AND HELD THAT WHILE CONDONIN G THE DELAY, THE COURT HAS TO TAKE INTO ACCOUNT THE C ONDUCT OF THE PARTIES, BONA FIDE REASONS FOR CONDONATION OF DELAY AND WHETHER SUCH DELAY COULD EASILY BE AVOIDED BY T HE APPELLANT ACTING WITH NORMAL CARE AND CAUTION. IN T HIS CASE DURING THE COURSE OF HEARING IT WAS INQUIRED FROM THE LEARNED COUNSEL FOR THE ASSESSEE AS TO WHETHER AFTER THE DEATH OF HIS FATHER (SHRI BRIJLAL JHAMNANI) THE ASSESSEE HAS FILED THE RETURNS OF INCOME FOR THE IT(SS)A NO. 82/IND/2015 MISS POOJA SAHU 31 SUBSEQUENT ASSESSMENT YEARS I.E. 2006-07, 2007-08 A ND 2008-09 OR NOT ? IN REPLY, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS FILED ALL THE RETURNS OF INCOME WITH THE DEPARTMENT. IN VIEW OF T HIS FACT, AFTER THE DEATH OF FATHER OF THE ASSESSEE ON 18.6.2010, THE ASSESSEE DID NOT CARE TO LOOK INTO T HIS APPEAL. THEREFORE, IN OUR OPINION, CONDUCT OF THE A SSESSEE IS NOT BONAFIDE AND THERE IS NO REASON TO CONDONE T HE DELAY. WE, THEREFORE, DISMISS THE APPLICATION FOR CONDONATION OF DELAY. 9. IN THE RESULT, THE APPEAL IS DISMISSED BEING BARRED BY LIMITATION. WE, THEREFORE, FOLLOWING THE ABOVE DECISION OF THIS BENCH OF THE TRIBUNAL, CONFIRM THE ORDER OF THE LEARNED CIT(A) BY HOLDING THAT THE LEARNED CIT(A) WAS FULLY JUSTIFIED I N NOT ENTERTAINING THE APPEAL WHICH WAS FILED BEYOND THE PRESCRIBED PERIOD OF LIMITATION. IT(SS)A NO. 82/IND/2015 MISS POOJA SAHU 32 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS DISMISSED. THE ORDER HAS BEEN PRONOUNCED IN OPEN COURT ON 20 DECEMBER, 2016. SD/- SD/- ( ..!') (..) #$ (O.P.MEENA) (D.T.GARASIA) ACCOUNTANT MEMBER J UDICIAL MEMBER (') / DATED : 20 DECEMBER, 2016. DN/