| COURT: | ITAT Jaipur |
| CORAM: | R. P. Tolani (JM), T. R. Meena (AM) |
| SECTION(S): | 5 of Limitation Act |
| GENRE: | Domestic Tax |
| CATCH WORDS: | Condonation of delay |
| COUNSEL: | P. C. Parwal |
| DATE: | February 13, 2015 (Date of pronouncement) |
| DATE: | February 20, 2015 (Date of publication) |
| AY: | 2005-06 |
| FILE: | Click here to download the file in pdf format |
| CITATION: | |
| The affidavit and cavalier conduct of CA in support of application for condonation of delay raises serious questions on his professional competence and work ethics in giving such an affidavit which hides more than it explains | |
The assessee filed an application seeking condonation of delay of 347 days in filing the appeal. In support of the application, the CA filed an affidavit accepting responsibility for the delay on the ground that he had gone on a tax audit and the filing of the appeal had skipped his mind. Reliance was placed on Collector, Land Acquisition V. Mst. Katiji (1987) 167 ITR 471 (SC) and it was pleaded that the assessee should not be made to suffer for the mistake committed by the CA. HELD by the Tribunal dismissing the application for condonation of delay and the appeal:
(i) 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 C.A.. It does not conform to general human conduct in such circumstances, preponderance of probabilities and surrounding circumstances which form sine qua non in the matters of condonation of delay;
(ii) 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 visit the C.A. office almost for a period of about one year to know about the filing of the appeals. There is no deposition in the affidavit 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 C.A. Thus, the depositions in affidavit remain vague, unsubstantiated and do not amount to explaining the sufficient cause;
(iii) The affidavit and cavalier conduct of Shri Kaushal Agarwal, C.A. raises serious questions on his professional competence and work ethics in 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 occasions are not mentioned with proper facts then the delay cannot be condoned. The law helps diligent and not the indolent as well as the axiomatic delay defeats equity. In our considered view that the condonation petitions filed by the assessee and material available on the record, fail to invoke any confidence, fail to explain reasonable and sufficient cause for condonation of long delay of 347 days in filing these appeals . The assessee has to come clean with all the relevant facts, which happened in the period of one year. The assessee 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 support of the affidavit of C.A.. Thus, the vague affidavit given 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.
OFFHAND
One is perforce obliged, and thrown back, to have a re-look at an earlier development as reported HERE >
“Govt may drop attestation of documents by gazetted officers … ”
That is on one of the bold steps taken by the presently ruling government; and pertains to /against the extant requirement to have an external ‘attestation’ of documents. One such document is the age-old conventional form – ‘affidavit’, given the status of ‘evidence’ with all its attendant importance, implications and consequences.
No doubt, as could not have been expected otherwise, the spontaneous, nay seemingly impulsive, reaction from the limited readers’ circle (read the posted comments there under) has been ‘for’ and welcoming the change.
Closely and strictly viewed, however, it is to be believed that the government did not intend , in the light of/despite the discouraging field reality, to thereby, in any manner, belittle or dilute the legal validity / sanctity attached to so called ‘affidavit’, as of evidential value.
Aside: To borrow selectively a few ideal thoughts of a renowned legal legend/humanitarian par excellence of our own times, N A Palkhivala, which should be of useful guidance in the context herein :
> Reality has been overtaking us -shattering our illusions, exposing our (outdated) ideologies and leaving us with no option but to tread the path of pragmatism, in retreat from populism.
Even so, it cannot be rightly disputed bot has to be prudently agreed, –
>>the success of democracy depends upon an informed citizenry; not on the participation of “every inmate in the asylum”.
Now, over to the enlightened professionals at large, active in field practice, for further deliberation; preferably, with the object of coming to an altruistic conclusion, solely with taxpayers’ concerns in mind, and desirably, to the end of finding a satisfactory solution .
what do we mean by professionalism?
If CA has to file a condonation application does he not know , he has to explain every day delay, if he cannot better ask the client to approach an advocate good in writing condonation applcation else client is going to face the problem.
it is like a draftsman who drafts legislation but music has to be faced by legislature and not the draftsman,,,that way CA might escape but it is unethical of CA if he fails in his assigned job , better he should excuse himself from writing condonation application as it needs all cogent approaches for every delay if not it is the real prerogative of any court to throw the application..same has happened here too.
hon tribunal correctly warned the CA.no point feeling offended but better learn to be better, as the client can move deficiency of service before a consumer forum on the verey CA himself as he charges a fee and his ICAI Act does not alow like Advcates Act any protection to CA, when it s all the more important for CA to take precaution..
again ICAI Act cannot give any such protection to CA is a well known fact.
swami correctly pointed out gazetted officer certification that is not valid today ..how can he certify a document without right application of mind, if he does it he cannot do his own assigned jobs is it not.. so there is no need of great surprise as such..just think logically..you get clear answer.