Income Tax Appellate Tribunal - Ahmedabad
New Gujarat Synthetics Limited (In ... vs The Income Tax Officer, Ward-5(1) Now ... on 1 August, 2018
आयकर अपील
य अ धकरण, अहमदाबाद यायपीठ 'B' अहमदाबाद ।
IN THE INCOME TAX APPELLATE TRIBUNAL
"B" BENCH, AHMEDABAD
BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER
AND
SHRI WASEEM AHMED, ACCOUNTANT MEMBER
आयकर अपील सं./ ITA No.752 TO 754/Ahd/2016
नधा रण वष /Block Asstt. Year: 2007-2008, 2010-11 AND 2012-13
New Gujarat Synthetics Limited Ltd. ITO, Ward-5(1)
(in Liqn.) Vs Now Ward 3(1)(1)
C/o. Official Liquidator Ambawadi
Jivabhai Chambers Ahmedabad.
Ashram Road
Ahmedabad 380 009.
PAN : AABCN 7223 Q
अपीलाथ&/ (Appellant) '(यथ&/ (Respondent)
Assessee by : None
Revenue by : Shri Kamlesh Makwana, Sr.DR
सन
ु वाई क तार ख/ Dateof Hearing : 27/07/2018
घोषणा क तार ख / Date of Pronouncement: 01/08/2018
आदे श/O R D E R
PER RAJPAL YADAV, JUDICIAL MEMBER:
The present three appeals are directed at the instance of the assessee against the orders of even dated i.e. 3.2.2015 passed by the ld.CIT(A)-9, Ahmedabad for the above three assessment years.
2. The Registry has pointed out that appeals filed by the assessee are time barred by 316, 315 and 94 days respectively for the assessment years 2007- 08, 2010-11 and 2012-13. An objection to this effect was intimated to the ITA No.752/Ahd/2016 AND 2 OTHER 2 appellant. In response to the objection, the appellant has filed application for condonation of delay, but without any affidavit.
3. These appeals were listed on board for hearing on 5.2.2018. However, Bench did not function on that date and case was adjourned to 1.3.2018. On 1.3.2018 there was no presence on behalf of the assessee. Thereafter, hearing was adjourned to 27.7.2018 and notice of hearing was sent by RPAD post. Despite service of notice, none remained present on behalf of the assessee. Therefore, with the assistance of the ld.DR, we have gone through the record carefully and proceeded to decide the appeals ex parte qua the assessee- appellant.
4. Sub-section 5 of Section 253 contemplates that the Tribunal may admit an appeal or permit filing of memorandum of cross-objections after expiry of relevant period, if it is satisfied that there was a sufficient cause for not presenting it within that period. This expression "sufficient cause" employed in the section has also been used identically in sub-section 3 of section 249 of Income Tax Act, which provides powers to the ld.Commissioner to condone the delay in filing the appeal before the Commissioner. Similarly, it has been used in section 5 of Indian Limitation Act, 1963. Whenever interpretation and construction of this expression has fallen for consideration before Hon'ble High Court as well as before the Hon'ble Supreme Court, then, Hon'ble Court were unanimous in their conclusion that this expression is to be used liberally. We may make reference to the following observations of the Hon'ble Supreme court from the decision in the case of Collector Land Acquisition Vs. Mst. Katiji & Others, 1987 AIR 1353:
"1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.ITA No.752/Ahd/2016 AND 2 OTHER 3
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
5. Similarly, we would like to make reference to authoritative pronouncement of Hon'ble Supreme Court in the case of N.Balakrishnan Vs. M. Krishnamurthy (supra). It reads as under:
"Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not ITA No.752/Ahd/2016 AND 2 OTHER 4 meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi lain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss."
We do not deem it necessary to re-cite or recapitulate the proposition laid down in other decisions. It is suffice to say that the Hon'ble Courts are unanimous in their approach to propound that whenever the reasons assigned by an applicant for explaining the delay, then such reasons are to be construed with a justice oriented approach.
6. In the light of the above, let us consider explanation given by the Official Liquidator. The applications for condonation of delay filed in all the appeals are verbatim same. In other words, the applications for condonation of delay are cyclostyled copy of each other. For the facility of reference, we ITA No.752/Ahd/2016 AND 2 OTHER 5 reproduce the condonation application filed by the assessee in ITA No.752/Ahd/2016 for A.Y.2007-08 as under:
"Sub: Condonation of delay for filing of Appeal - A.Y. 2007-08 Kindly refer to the captioned subject and we beg to submit that the Commissioner of Income Tax (Appeals) -VIII, Ahmedabad has passed an Appeal order in the order of an assessing officer u/s. 143(33) r.w.s. 147 of the Act dated 3.02.2015 and the said order was served on the appellant on 18.03.2015.
The present appeal, in accordance with law, was to be filed on or before the date i.e. within 60 days from the date of receipt of order however an appellant is Company (In Liqn.) which is taken cared by Office of the Official Liquidators, High Court of Gujarat as principal officer of the said Company (In Liqn.) on the basis of the final order of winding up by the Hon'ble High Court. The Official Liquidator is occupied in works assigned by the High Court and so was not available for taking decision of making appeal and no other staff member was authorized to take decision on behalf of him hence appeal cannot be made in time.
Considering the merits of the case as also the genuine and bonafide reason under which the appellant was unable to file its appeal in time, a humble request is made to admit the present appeal condoning the delay particularly taking into account the fact that for want of adjudication, a proper case on merit shall be deprived the benefit of consideration by appellate authority for the reasons resulting into the delay in filing the appeal.
Your appellant while making the above prayer seeks to place reliance on various decisions listed below to take a view that condonation of delay in filing of appeals may be liberally approached by the appellate authorities:
1. In the case of COLLECTOR, LAND ACQUISTIION V. MST.
KATIJI -167 ITR 471 (SC) the Hon'ble Supreme Court held as follows:
"The Legislature has conferred the power to condone delay by enacting section 5 of the Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing a matters on 'merits'. The expression 'sufficient cause' employed by the Legislature is adequately elastic to enable the courts to apply the law in a meaningful manner, which subserves the ends of ITA No.752/Ahd/2016 AND 2 OTHER 6 justice - that being the life-purpose of the existence of the institution of courts. It is common knowledge that this court has been making a justifiably liberal approach in matters instituted in this court. But the message does not appear to have percolated down to all the other courts in the hierarchy.
2. 278 ITR 291 (ALL)AUTO CENTRE VS. STATE OF UTTAR PRADESH AND OTHERS "In matters of condonation of delay a pragmatic view should be taken and there should be a liberal approach. The law of limitation is enshrined in the maxim interest reipublicae ut sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
Held, that, in the instant case, the assessee-firm had only two partners one of whom was old. The other partner explained that he had been ill. The illness was not doubted. The delay in filing the appeal has to be condoned.
3. In the case of N. BALAKRISHNAN VS. M. KRISHNAMURTHY
- 7 SCC 123 the apex court explained the scope of limitation and condonation of delay observing as under:
"The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy for the redress of the legal injury so suffered. The law of limitation is thus founded on public policy."
4. In VEDABAI ALIAS VAIJAYANATABAI BABURAO PATIL VS.
SHANTARAM BABURAO PATIL reported in 253 ITR 798 (SC; 125 STC 375 (SC; 44 ALR 577 (SC) the apex court made a distinction in delay and inordinate delay observing as under:
"In exercising discretion under section 5 of the Limitation Act, the courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the ITA No.752/Ahd/2016 AND 2 OTHER 7 consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach..."
5. In NEW INDIA INSURANCE CO. LTD. VS. SMT. SHANTI MISRA - AIR 1976 SC 237. the Hon'ble Supreme Court held that discretion given by section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The expression "sufficient cause" should receive a liberal construction.
Your honour is, thus, requested to admit the present appeal by condoning the delay hi filing of the same. The following documents are enclosed, in Triplicate:
a) Memorandum of Appeal in Form No. 36 along with Statement of Facts and Grounds of Appeal
b) Copy of the order Passed by CIT (Appeal) - VIII in an order passes by the assessing officer u/s.144 r.w.s 147 of the I.T. Act, 1961
c) Copy of the order Passed by the assessing officer u/s.143(3) r.w.s 147 of the I.T. Act, 1961.
d) Copy of Challan of Rs. 10000/-, being ITAT Appeal Fee.
e) Form No.35 Since the delay has arisen on account of inadvertent and unintended reasons the appellant's appeal may kindly be allowed to be admitted and proceeded with for which your appellant shall be ever obliged."
As noted hereinabove, with the applications no affidavit has been filed. A perusal of opening part of the application would indicate that ld.OL has not specified any reasons for filing the appeals late. Vague explanation has been given wherein it has been pleaded that he has remained occupied in work assigned by the Hon'ble High Court. He has no where demonstrated as to how he could not apply his mind for filing the appeals upto 316 days. To our mind this vague explanation given by the ld.OL is not sufficient and convincing. It is hardly believable that if a file has been assigned to the OL, then he could not have glance on the file for more than 300 days and remained occupied in other works. There could be some other correspondence with his office exhibiting that it was practically impossible ITA No.752/Ahd/2016 AND 2 OTHER 8 for him to attend large volume of work, if any. But no data has been provided along with explanation. Therefore, we are satisfied that there is no plausible explanation for huge delay from 95 upto 316 days. We do not find any merit in the application for condonation of delay. We dismiss all these applications, and consequently all three appeals are dismissed being time barred.
7. In the result, all three the appeals of the assessee are dismissed. Order pronounced in the Court on 1st August, 2018 at Ahmedabad.
Sd/- Sd/- (WASEEM AHMED) (RAJPAL YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad; Dated 01/08/2018