| COURT: | ITAT Delhi |
| CORAM: | C. M. Garg (JM), S. V. Mehrotra (AM) |
| SECTION(S): | 253(3), 5 of Limitation Act |
| GENRE: | Domestic Tax |
| CATCH WORDS: | Condonation of delay, sufficient cause |
| COUNSEL: | Ajay Vohra |
| DATE: | November 13, 2014 (Date of pronouncement) |
| DATE: | November 24, 2014 (Date of publication) |
| AY: | 2002-03 |
| FILE: | Click here to download the file in pdf format |
| CITATION: | |
| S. 253(3): Delay of 1163 days in filing the appeal due to languid and inane conduct of the assessee cannot be condoned as it would result in the limitation period becoming otiose | |
(i) We are of the view that there is an extraordinary delay of 1163 days in filing this appeal for which assessee has to show “sufficient cause” but the cause shown by the assessee may be considered a “sufficient cause” for the intervening period when old officers left or parted with the company and till new Manager Taxation Mr. Hemant Gupta joined, meaning thereby from October 2007 to 29.2.2008, but we are unable to see any “sufficient cause” which could justify or properly explain the delay which occurred from last date of filing the appeal as per statutory provisions of the Act to departure of Shri Suresh Chawla – AVP – Taxation i.e. from 17.6.2006 to October 2007 and from joining of Mr. Hemant K. Gupta – Manager Taxation to the date of filing this appeal i.e. from 29.2.2008 to 12.8.2009. From impugned order of the CIT(A) dated 30.3.2006, we clearly observe that Shri Suresh Chawla AVP (Taxation) of the company was present at the time of delivery of the order with Shri Satya Sethi, Advocate and Shri Harsh Singhal the representative of the assessee company which reveals that Shri Suresh Chawla was well aware about the impugned order from the date of the order i.e. from 30.3.2006, therefore, delay in filing appeal was not due to ignorance but the delay was caused due to languid and inane conduct of the assessee. We also note that the date on which Mr. Hemant Kumar Gupta found relevant papers in a file folder is neither mentioned in the application for condonation of delay nor in the affidavit of Mr. Gupta. Therefore, “sufficient cause” as shown by the assessee is not acceptable in the light of ratio of the decision of Hon’ble Apex Court in the case of Chief Postmaster General and Others vs Living Media India Ltd. and Another (supra) and Pundlik Jalam Patil (Dead) by LRS vs Executive Engineer (supra). In above facts and circumstances of the present case, we are of the considered opinion that if such kind of extraordinary delay is condoned without any sufficient cause, then the provisions of prescribed limitation period would become otiose and infructuous.
(ii) Thus, we respectfully hold that the benefit of the ratio of the decisions of Vedabai (supra) and Mst. Katiji (supra) is not available for the assessee. On the other hand, the decisions as relied by the ld. DR i.e. decisions of Hon’ble Apex Court in the cases of Chief Postmaster General and Others vs Living Media India Ltd. and Another (supra) and Pundlik Jalam Patil (Dead) by LRS vs Executive Engineer (supra) are squarely applicable to the present case as the “sufficient case” shown by the assessee in the application for condonation of delay is neither supported by the affidavit of Mr. Hemant Kumar Gupta nor by the submissions and other contentions of the assessee. Therefore, we reach to a fortified conclusion that the assessee miserably failed in establishing and substantiating “sufficient cause”, as required by the statutory provisions of the Act, for the extraordinary delay of 1163 days. Hence, present application for condonation of delay is dismissed.
TRUE. But at the same time one need appreciate in bad in law cases perpetrated by revenue, condonation to assesee is not otiose, as revenue cannot misuse the ignorance of assesse as to how to assert before revenue, as most representations on behalf of the assessee are done mostly by CAs and most minimum by real advocates from Bar , so there world be lacunae in representation on behalf of assessee – after all, all aspects of law and legal interpretation cannot be simply great in the case of CAs whose expertise are indeed in taxation accounts not really on law and law aspects.
say for instance in scrutiny cases, revenue man do not provide the assesee what are his protections he should know after all a legal fight is between equals only like in a war, that way government of india cannot act covertly and any covert action would be Wednesbury unreasonableness , even under doctrine of prportionality.
it is a settled law hon SC observed in SC (1999)1237 ITR and (2004) ITR 272 –
AO is bound by CBDT instructions on scrutiny issues – that way CBDT instructions are mandatory on the Revenue but Revenue thru AOs just do not strictly follow is a world known fact..
so Delhi HC too followed SC observations in (2008) 169 Taxman ; and (2007) 295 ITR 256 – AO cannot make assessment of any case in scrutiny outside the Guideline issued by CBDT for selection of cases for scrutiny and if any such assessment is made then it will be ILLEGAL;
TIME LIMIT U/S 143(2) (ii) amended by finance Act 2008 wef 01.04.2008 the Notice u/s 143(2) must be served on Assesse within six months from the end of the relevant assessment year (Earlier Notice shd be within 12 months).
So u/s 143(2) must be served on or before 30 September of relevant preceding AY. But invariably violated by AOs taking advantage of ignorance of the tax payer for the revenue man’s obvious reasons, mostly such issues squRELY FALL UNDER WEDNESBURY OF UNREASONABLENESS.
DELHI HC DID set aside of the assessment in CIT V lunar Diamonds (2006)281 ITR(Del) as the AO failed in his duty to tax payer who is sovereign dejure while government is only defacto without the sovereign citizens in any vibrant democracies;
Even sec 292BB cannot help the AO
In CIT V EASTERN ENTERPRISES 210 ITR (CAL) held even in failure of allowing opportunity to assesse to cross examine cannot be sustained .. what it all shows there is tremendous unreasonable aproaches adopted by revenue thru their AOs.
in such cases condonation to assesses cannot be Otiose is my view sirs!
problems are without valid proof when you on the basis of suspicion accuse one on any serious impropriety without jurisdiction as jurisdiction is curtailed say under sec 143(2)(ii), then the AO violates the jurisdictional principle by violation of principle of estoppel, that means the AO one side failed to prove say concealed cash as the source is not clearly identified by AO but AO chose to work just on suspicion and then when he uses sec 144 summary assessment besides imposes sec 271(1)(c), obviously the ld AO misused investigation that would turn out against AO as a matter of clear Malafide, such action deserves to be set aside , after all one as a public servant need to work on good faith but not on bad faith, that way bad in law situation arises.
so the appellant should not submit himself before the said AO by so called remanding of the matter back to AO; if he accepts remanding back to AO he allows new jurisdiction over the appellant, that way, hon Tribunals must be careful; and if tribunal is a party to such situation naturally it commits a breach of trust which appellant reposed on the tribunal is the import of substance, as hon tribunal forfeited the public trust!
job of tribunal is not very easy like any administrator does; that way tribunal need be very careful lest it loses its credibility as an appellate tribuna is my view, here in the case the tribunal did a very good job.l
law is indeed a double edged weapon. if the hon tribunal does an error judgement, the appellant should move before high court under art. 226 for review, then high court either by mandamous or certiorary method set aside the hon tribunal judgement as ultra vires, and the creidibility of tribunal would be in suspect.
once known no appellant would accept such members to decide their issues a very serious damaging effect on the relevant members; that says clearly members need to jealously guard themselves from such situation of serious disgrace is my view.
this of judging is not a very easy job please is the warning, i say after having observed several tribunals and circuits in USA as an opinion.
it is upto you to take or not, i lose nothing but prestiege of tribunal is in jeopardy.