Condoning Delay in Filing Appeal

In the case of condonation of delay where the appeal was filed beyond the limitation of period, the courts are empowered to condone the delay, provided that the Appellant can prove his claim of inability to file appeal within the prescribed period. Litigant must be able to demonstrate that there was “sufficient cause” which obstructed his action to file Appeal beyond the prescribed time limit.

Courts have also held that the expression “Sufficient Cause” shall receive liberal consideration for the sake of Justice. Thus, the condonation of delay is not automatic but is based upon the facts of the case. Courts while condoning delays in filing appeals have power to examine each case separately and after ascertaining the facts if delay was due to “sufficient cause” may condon the delay.

 

The law of limitation is found upon maxims such as “Interest Reipublicae Ut Sit Finis Litium” which means that litigation must come to an end in the interest of society as a whole, and “vigilantibus non dormientibus Jura subveniunt” which means that the law assists those that are vigilant with their rights, and not those that sleep thereupon. The law of limitation in India identifies the need for limiting litigation by striking a balance between the interests of the state and the litigant.

Condonation of delay [Section 249(3)]

Appeal has to be filed within time prescribed under the relevant provisions. An appeal filed beyond time prescribed under the law is liable to be dismissed. However, the CIT(A) may admit an appeal after the expiration of the limitation period on sufficient cause for not filing it within that period being shown. Application for condonation of delay in filing the appeal, giving the reasons for the delay, along with necessary evidences should be filed with Form No. 35 (i.e., form of appeal). The CIT(A) can condone the delay in filing the appeal if he is satisfied that the appellant had sufficient cause for not presenting it within that period.

 

Text of Section 249(3)

(3) The Commissioner (Appeals) may admit an appeal after the expiration of the said period if he is satisfied that the appellant had sufficient cause for not presenting it with.

 

Text of Section 260(2A0

(2A) The High Court may admit an appeal after the expiry of the period of one hundred and twenty days referred to in clause (a) of sub-section (2), if it is satisfied that there was sufficient cause for not filing the same within that period.

 

There are certain common but genuine grounds which the courts may consider for the condonation of delay in cases where Appeals are filed after the expiry of period as laid down under the limitations Act, 1963.

v  Appellants filing appeals after the expiry of the period of limitation with a submission for condonation of delay the reason being that he was not aware of the order passed by the referred authority. The courts after ascertaining the genuineness of the submission may Condon the delay.

v  The respondent (s) must not expressly refute the stand taken by the Appellant. Courts need to ensure that the respondent(s) have nothing concrete to prove that the stand taken be Appellant is not based on facts.

v  Concealment of information by the council, if proved beyond the doubt can be a valid ground for condonation of delay.

v  Delay in receipt of order from the department, if proved with evidence can be a valid cause for the condonation of delay.

v  Any other plea made by the Appellant which the Hon’ble court considers genuine and relevant can be considered for the condonation of delay.

 

Condonation of delay of 1,754 days – Appellant(s) had asserted that they had no knowledge about passing of order dated 29.12.2003 until they were confronted with the auction notices in June, 2008 issued by the competent authority – Unless that fact is refuted, the question of disbelieving the stand taken by the appellant(s) on affidavit does not arise

The Hon’ble Supreme Court by setting aside the order of the High Court and relegated the parties before the High Court, by allowing the civil application(s) for condonation of 1754 days delay in in filing the concerned appeal.

The Appellant(s) in this case pleaded before the court that they had no knowledge about the order passed against them by the ITAT on 29-12-2003 until they were confronted with the auction notices in June 2008 issued by the competent authority.The Appellant(s) filed appeal within prescribed time along with subject applications on 19-07-2019.The respondents did not expressly refute the stand taken by the applicant(s) about the fact that they were not aware about the order issued by ITAT on 29-12-2003.

Hon’ble Supreme Court while allowing the condonation of delay of 1754 days observed that unless fact is not refuted by the respondent (s) the question of disbelieving the stand taken by the Applicant (s) cannot arise thus Hon’ble High Court should have shown lenience to the appellant (s) by condoning the delay in filing the concerned appeal(s). – [Senior Bhosale Estate (HUF) v. ACIT (2019) 419 ITR 732 (SC)]

Supreme Court explains rules for condonation of delay - Condonation of delay of 916 days: While a liberal approach is to be taken in the matter of condonation of delay & the consideration does not depend on the status of the party, even so the condonation of long delay should not be automatic since the accrued right or adverse consequence to the opposite party is also to be kept in perspective. While considering condonation of delay, routine explanation is not enough but it should be in the nature of indicating “sufficient cause” to justify the delay which will depend on the backdrop of each case and will have to be weighed carefully by the Courts based on the fact situation (Mst Katiji 1987(2) SCC 107 distinguished)

From a consideration of the view taken by this Court through the decisions cited supra the position is clear that, by and large, a liberal approach is to be taken in the matter of condonation of delay. The consideration for condonation of delay would not depend on the status of the party namely the Government or the public bodies so as to apply a different yardstick but the ultimate consideration should be to render even­ handed justice to the parties. Even in such case the condonation of long delay should not be automatic since the accrued right or the adverse consequence to the opposite party is also to be kept in perspective. In that background while considering condonation of delay, the routine explanation would not be enough but it should be in the nature of indicating “sufficient cause” to justify the delay which will depend on the backdrop of each case and will have to be weighed carefully by the Courts based on the fact situation.

In the matter of condonation of delay and laches, the well accepted position is also that the accrued right of the opposite party cannot be lightly dealt with. In that regard, rather than taking note of the hardship that would be caused to the respondent No.13 as contended by the learned Senior Counsel, what is necessary to be taken note is the manner in which the respondent No. 11 DMRC has proceeded in the matter. The respondent No. 11­ DMRC is engaged in providing the public transport and for the said purpose the Government through policy decision has granted approval to generate resources through property development and in that regard the development as earlier indicated, is taken up. Pursuant thereto the respondent No.11 has received a sum of Rs.2 18.20 crores from respondent No.13 as far back as in the year 2008. The said amount as indicated is used for its projects providing metro rail service to the commuting public. In such circumstance, if at this stage the inordinate delay is condoned unmindful of the lackadaisical manner in which the appellant has proceeded in the matter, it would also be contrary to public interest.

Therefore, taking into consideration all these aspects of the matter, we are of the opinion that not only the learned Single Judge was justified in holding that the writ petition inter alia is hit by delay and laches but the decision of the Division Bench in dismissing the LPA on the ground of delay of 916 days is also justified and the orders do not call for interference. – [University of Delhi v. Union of India & Ors. - Date of Judgement 17.12.2019 (SC)]

 

Condonation of delay of 1754 days: If the stand of the Applicant in the Affidavit that he had no knowledge about the passing of the order is not expressly refuted by the Respondent, the question of disbelieving the stand of the Applicant cannot arise. For this reason, indulgence should be shown to the Applicant by condoning the delay

In case of Senior Bhosale Estate (HUF) v. ACIT, the Hon’ble Supreme Court by setting aside the order of the High Court and relegated the parties before the High Court, by allowing the civil application(s) for condonation of 1754 days delay in filing the concerned appeal.

The Appellant(s) in this case pleaded before the court that they had no knowledge about the order passed against them by the ITAT on 29.12.2003 until they were confronted with the auction notices in June 2008 issued by the competent authority. The Appellant(s) filed appeal within prescribed time along with subject applications on 19.07.2019. The respondents did not expressly refute the stand taken by the applicant(s) about the fact that they were not aware about the order issued by ITAT on 29.12.2003.

Hon’ble Supreme Court while allowing the condonation of delay of 1754 days observed that unless fact is not refuted by the respondent(s) the question of disbelieving the stand taken by the Applicant(s) cannot arise thus Hon’ble High Court should have shown leniency to the appellant(s) by condoning the delay in filing the concerned appeal(s). - [Senior Bhosale Estate (HUF) v. ACIT - Date of Judgement : 07.11.2019 (SC)]

Condonation of delay of 571 days: Mistake of counsel may be taken into account in condoning delay

When an assessee authorizes a counsel to appear on his behalf, such authorization is given by placing faith on the legal expertise of the Counsel and also with the hope that the counsel shall take care of the interest of the assessee. Claim that the delay was caused by Counsel not communicating the order has to be accepted unless it is shown that blame put on counsel is with malafide intentions in order to cover up mistake/lapse on the part of the assessee. As per human conduct and probabilities, a professional counsel cannot be expected to admit his lapses as it may affect his reputation. Also, if the appeal is adjudicated on merits, refusing to condone the delay is an error. Hence, I am of the view that the assessee has shown sufficient cause for the delay in filing appeal before the Tribunal and accordingly I concur with the view taken by Hon’ble Judicial Member. - [Bhagwati Colonizers (P) Ltd v. ITO - Date of Judgement : 22.10.2019 (ITAT Amritsar) (Third Member)]

 

(i) Condonation of delay of 1018 days: None should be deprived of an adjudication on merits unless it is found that the litigant deliberately delayed the filing of appeal. Delay due to improper legal advice should be condoned. A technical view of dismissing the appeal on the ground of delay should not be taken if the legal issue has to be decided for other years (ii) A draft assessment order u/s 144C issued with a notice of demand u/s 156 and a s/ 271(1)(c) penalty notice is null and void (Eaton Fluid Power 96 TM.com 512 followed, BS Ltd 94 TM.com 346 (Hyd) distinguished)

It is relevant to note the judgment of the Hon’ble Bombay High Court in Vijay Vishin Meghani v. DCIT & Anr (2017) 398 ITR 250 (Bom) holding that none should be deprived of an adjudication on merits unless it is found that the litigant deliberately delayed the filing of appeal. Similar to the cases under consideration, in that case too, delay of 2984 days crept in due to improper legal advice. Relying on Concord of India Ins. Co. Ltd. v. Nirmala Devi (1979) 118 ITR 507 (SC), the Hon’ble jurisdictional High Court condoned the delay. In yet another case in Anil Kumar Nehru and Another vs. ACIT (2017) 98 CCH 0469 BomHC, there was a delay of 1662 days in filing the appeal. Such a delay was not condoned by the Hon’ble High Court. In further appeal, condoning the delay, the Hon’ble Supreme Court in Anil Kumar Nehru v. ACIT (2018) 103 CCH 0231 ISCC, held that : `It is a matter of record that on the identical issue raised by the appellant in respect of earlier assessment, the appeal is pending before the High Court. In these circumstances, the High Court should not have taken such a technical view of dismissing the appeal in the instant case on the ground of delay, when it has to decide the question of law between the parties in any case in respect of earlier assessment year. (Related Assessment years : 2008-09, 2009-10) – [Atlas Copco (India) Limited v. DCIT – Date of Judgement : 29.08.2019 (ITAT Pune)]

 

(i) Delay of 420 days in filing appeal due to subsequent decision of the Supreme Court is a valid ground for condonation of delay (ii) An order can be said to suffer from a "mistake apparent from the record" if it contrary to a subsequent judgement of the Supreme Court. Courts do not make any new law; they only clarify the legal position which was earlier not correctly understood. Such legal position clarified by Courts has retrospective effect as the law was always the same

It is also well – settled that a judicial decision acts retrospectively. According to Blackstonian theory, it is not the function of the Court to pronounce a ‘new rule’ but to maintain and expound the ‘old one’. In other words, the Judges do not make law; they only discover or find the correct law.The law has always been the same. If a subsequent decision alters the earlier one, it (the later decision) does not make a new law. It only discovers the correct principle of law which has to be applied retrospectively. To put it differently, even where an earlier decision of the Court operated for quite sometime, the decision rendered later on would have retrospective effect, clarifying the legal position which was earlier not correctly understood. (Related Assessment year : 2003-04) – [Anandkumar Jain v. ITO – Date of Judgement ; 20.08.2019 (ITAT Mumbai)]

 

The power conferred upon the CIT(A) to condone the delay in filing of appeal is to alleviate genuine suffering of taxpayers. He has the power and corresponding duty to exercise the power when circumstances so warrant. U/s 14 of the Limitation Act, delay caused due to proceeding in a wrong forum has to be condoned. 

The powers conferred upon the CIT(A) under section 249(3), for condoning the delay in filing of appeal if he is satisfied that the appellant had sufficient cause for not presenting it within that period, are statutory power to alleviate genuine suffering of taxpayers, so far as their grievance redressal by way of appeals are concerned, within framework of law. When a public authority has the powers to do something, he has a corresponding duty to exercise these powers when circumstances so warrant or justify–a legal position which has the approval of Hon’ble Supreme Court. (Related Assessment year : 2012-13) – [R.A.K. Ceramics v. DCIT – Date of Judgement : 29.08.2019 (ITAT Hyderabad)]

 

Delay — Supreme Court issues strictures against the income-tax department stating that it is “extremely unhappy” with the delay of 3381 days in refiling the SLP and demands that “The concerned authorities need to wake up”.

Learned Solicitor General says that in view of the decision of this Court in ACG Associated Capsules (P) Ltd. v. Commissioner of Income Tax (Central-IV), Mumbai [(2012) 3 SCC 321], this petition be dismissed on merits. We are extremely unhappy with the delay of 3381 days in refiling the special leave petition but make no other comment. The concerned authorities need to wake up. The special leave petition is dismissed both on the ground of delay as also on merits.—[CIT v. Krishan K. Agarwal (SLP No. 871/2017, dated 16.01.2017 (SC)]

 

Form of appeal and limitation - Delay of 231 days - Affidavit was filed explaining the delay -Revenue has not disputed the correctness of the affidavit – Delay was condoned – Matter remanded to Tribunal to decide on merits

Allowing the appeal of the assessee, the Court Held that; there is no any such gross negligence on the part of the appellant especially in the light of the reasons assigned for filing the appeal belatedly, which have not been controverted by the revenue. Therefore, the matter should not be shut down on technicalities and a liberal approach should be taken bearing in mind the reasons assigned by the appellant, as the assessee is a joint venture company controlled by the Government of Tamil Nadu and its DCEO, who is invariably in the cadre of IAS Officer, is being nominated by the Government and he has to take a decision to file an appeal. The appellant has submitted that in the assessee’s own case for the assessment years 1995-96, 1996-97 and 2001-02, a Division Bench of this Court, decided the very same issue in favour of the assessee. In the result, the above tax case appeal is allowed, the substantial questions of law are answered in favour of the assessee and the order passed by the Tribunal is set aside. The matter is remanded to the Tribunal to take a decision on the merits of the case. (Related Assessment year : 1997-98) – [Elnet Technologies Ltd. v. DCIT (2018) 259 Taxman 593 (Mad.)]

Condonation of delay of 1662 days: The High Court should not take a technical approach and refuse to condone the delay when appeals for earlier years with identical issues are already pending before it

It is a matter of record that on the identical issue raised by the appellant in respect of earlier assessment, the appeal is pending before the High Court. In these circumstances, the High Court should not have taken such a technical view of dismissing the appeal in the instant case on the ground of delay, when it has to decide the question of law between the parties in any case in respect of earlier assessment year. (Related Assessment year : 2007-08 – [Anil Kumar Nehru v. ACIT – Date of Judgement : 03.12.2018 (SC)]

 

Condonation of abnormal delay of 1371 days in removing office objections: High Court refused to condone delay and held that Dept must "set its own house in order by sacking and removing the delinquent and negligent officials or penalising them otherwise so as to subserve larger public interest". The Supreme Court reversed this holding High Court ought to have condoned the delay and not dismissed the appeal. Dept to pay costs of Rs. 1 lakh (from taxpayers' funds) for condonation of delay

No doubt, there is a long delay in removing the objections, we are of the opinion that in a case like this the High Court should have condoned the delay in removing the office objections and heard the matter on merits.

However, for the said delay caused by the appellant, the appellant shall pay cost of Rupees one lac within four weeks, which shall be deposited with the Supreme Court Bar Association Lawyers’ Welfare Fund.

In view of the above, we condone the delay in removing office objections and remit the matter to the High Court for consideration of the case on merits. The appeal is allowed as indicated above. – [CIT v. Reliance Industries Ltd. – Date of Judgement : 26.10.2018 (SC)]

An assessee supported by large number of CAs & Advocates cannot seek condonation of delay on the ground that the officer handling the issue was transferred. A party cannot sleep over its rights and expect its appeal to be entertained. The fact that the issue on merits is covered in favour of the assessee makes no difference to the aspect of condonation of delay

The assessee is a scheduled bank supported by a large number of personnel and also assisted by qualified Chartered Accountants and Advocates. The reason as come out from the condonation petitions filed by the assessee, as stated earlier, is that there was transfer of the officer who was handling the issue. We cannot accept such proposition as it cannot be considered as good and sufficient reason to condone the delay. It was submitted that the delay is to be condoned since the issue on merit covered in favour of the assessee. This submission ignores the fact that the object of the law of limitation is to bring certainty and finality to litigation. (Related Assessment year : 2013-14, 2014-15) – [Catholic Syrian Bank Ltd. v. DCIT – Date of Judgement : 08.10.2018 (ITAT Cochin)]

 

We are shocked that the UOI through the CIT has taken the matter so casually. The petitioners have given a totally misleading statement before this Court. Petition dismissed with costs of Rs.10 lacs to be paid (by the exchequer)

First of all this petition has been filed after a delay of 596 days. As we have noted, there is an inadequate explanation of delay of 596 days in filing the petition and a misleading statement about pendency of a similar civil appeal. There is an inadequate and unconvincing explanation given for the delay in filing the petition. Secondly, it is mentioned in the proforma for first listing that a similar matter being C.A. No. 7096/2012 is pending in this Court. However, the office has given a report stating that C.A. No. 7096/2012 was decided by this Court as far back as on 27.09.2012. In other words, the petitioners have given a totally misleading statement before this Court. Under the circumstances, we dismiss the petition with costs of Rs.10 lacs to be paid to the Supreme Court Legal Services Committee within four weeks from today. The amount be utilized for juvenile justice issues. List the matter for compliance after four weeks.   [CIT v. Hapur Pilkhuwa Development Authority – Date of Judgement : 27.08.2018 (SC)]

Section 254(2) Time limit for filing MA: Though the Tribunal has no power under section 254(2) to condone delay in filing the MA, the High Court has power under Articles 226 and 227 of the Constitution of India to do substantial justice by condoning the delay. Injustice was done to the assessee because the Tribunal did not follow the binding judgement in Manjunatha Cotton and Ginning Factory 359 ITR 565 on the issue of levy of penalty under section 271(1)(c). Accordingly, the delay in fling the MA deserves to be condoned

Though under the provisions of Section 254 the Tribunal cannot go beyond the provisions of the said Section, the fact remains that the petitioner has substantiated that injustice is being done by not following the Division Bench decision of this Court. Therefore, in order to do substantial justice, this Court exercising the power under Articles 226 and 227 of the Constitution of India can condone the delay as held by the Division Bench of this Court in the case of Practice Strategic Communications India Private Limited .vs. C.S.T., Domlur, reported in 2016(45) S.T.R. 47(Kar.) (Related Assessment year : 2007-08)  – [Muninaga Reddy v. ACIT – Date of Judgement : 12.07.2018 (Karn.)]

 

Delay of 2819 days in filing the appeal caused by the fault of CA/ Counsel has to be condoned. the expression “sufficient cause” should be interpreted to advance substantial justice. If there is "sufficient cause", the period of delay cannot be regarded as excessive or inordinate (All judgements considered)

Under the scheme of Constitution, the Government cannot retain even a single pie of the individual citizen as tax, when it is not authorised by an authority of law. Therefore, if we refuse to condone the delay, that would amount to legalise an illegal and unconstitutional order passed by the lower authority. Therefore, in our opinion, by preferring the substantial justice, the delay of 2819 days has to be condoned. (Related Assessment year : 2006-07) – [Midas Polymer Compounds v. ACIT – Date of Judgement : 25.06.2018 (ITAT Cochin)

 

Registrar of the Tribunal has no jurisdiction to consider and decide on applications for condonation of delay. Only the Court/ Tribunal have the power. The order passed by the Registrar is ultra vires his power and non-est in law. He should desist from passing such orders

The power of condoning the delay is with the Court/Tribunal under the Limitation Act as well as under section 253(5) r.w.s. 252(1) of the Income Tax Act. The petition of assessee has to be examined by the court/Tribunal after hearing both the parties and after considering the reasons, facts etc. Hence, the order passed by the Registrar is ultra virus beyond his power. hence his order is non-est in the eyes of the law. Henceforth the Registrar should desist from passing such orders and he should put up all petitions before the Bench. – [In Re Hiten Ramanlal Mahimtura – Date of Judgement : 01.05.2018 (ITAT Mumbai)]

 

No more adjournments. No more ‘tareek pe tareek’. Enough is enough. That a Court will endlessly grant adjournments is not something that parties or advocates can take for granted. Nor should they assume that there will be no consequences to continued defaults and unexplained delay

I compute the delay from 25th November 2016 until today. This is a period of 450 days; possibly more, but not less. Costs must be imposed for each day’s delay. I do not think that, in this day and age, and especially in this city, costs of Rs.1000 per day are at all unreasonable. Anything less than that is illusory and meaningless and the time has gone when a Court could, would or should pick up some utterly random figure like Rs.5,000 or Rs.25,000, a number wholly without tether to the actual days of delay. Fixing ad hoc figures like this is counter-productive. Parties believe that even if the delay is inordinate, the costs of that delay will be negligible; and hence they continue to extend the delay. The costs must be real. They must be sufficient to convey the message that non-compliance with our orders brings consequences; that these consequences are inevitable and unavoidable; and the consequences are not some piffling trifle. It cannot be assumed that noncompliance with his, or any other, Court’s orders has no consequence. If there is a genuine reason to extend time, an application must be made to the Court and directions sought. – [Ram Nagar Trust No.1 v. Mehtab L Sheikh – Date of Judgement : 27.02.2018 (Bom.)]

 

Delay of 335 days in filing the appeal was not condoned - Government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for Government departments. The mere fact that the Assessing Officer was busy in other time-bearing assessments is not an excuse for delay particularly given the fact that s. 260A provides a long time period of 120 days. Every day’s delay has to be explained

It was held that the reasons given in the present application are wholly  unsatisfactory. The mere fact that the Assessing Officer was busy in other time bearing assessments can hardly be an excuse, particularly given the fact that under Section 260A of the Income Tax Act, 1961, the time period for filing of an appeal is 120 days. No other statute prescribes the time period of over three months. Moreover, there is no explanation for every day’s delay. A delay of 335 days cannot be said to be routine.

Dismissing the appeal, the Court held that; Government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for Government departments. The merefact that the AO was busy in other time-bearing assessments is not an excuse for delay particularly given the fact that section 260A provides a long time period of 120 days. Every day’s delay has to be explained. On facts delay in filing appeal by 335 days was not condoned. With there being no satisfactory explanation, the application for condonation of 335 days in filing the appeal is dismissed. - [CIT v. Historic Infracon - Date of Judgement: 19.05.2017) (Delhi)]

 

Code of Criminal Procedure , 1973 Section 300. Fodder scam - Delay - The Court has to ensure that owing to some delay on part of the machinery, miscarriage of justice should not take place. It is also contended that the power under Section 5 of the Limitation Act should be exercised to advance substantial justice- Delay was condoned - Severe strictures passed against the High Court for "inconsistent decision-making" and passing orders which are "palpably illegal, faulty and contrary to the basic principles of law" and by ignoring "large number of binding decisions of the Supreme Court" and giving "impermissible benefit to accused". Law on condonation of delay explained. CBI directed to implement mechanism to ensure that all appeals are filed in time [Constitution of India , Article 20(2)]

Reliance was placed for condonation of delay ; the State of Tamil Nadu v. M. Suresh Rajan (2014) 11 SCC 709 is apt in which the time consumed in taking opinion on change of Government was held to be sufficient cause so as to condone the delay. Reliance has also been placed on Indian Oil Corporation Ltd. & Ors. v. Subrata Borah Chowlek, etc. (2010) 14 SCC 419 in which there was a delay in filing the appeals in which this Court has observed that Section 5 owes no distinction between State and citizen. The Court has to ensure that owing to some delay on part of the machinery, miscarriage of justice should not take place. It is also contended that the power under Section 5 of the Limitation Act should be exercised to advance substantial justice by placing reliance on State of Nagaland v. Lipok AO & Ors. (2005) 3 SCC 752. The Court condoned the delay .The Court also passed severe strictures against the High Court for "inconsistent decision making" and passing orders which are "palpably illegal, faulty and contrary to the basic principles of law" and by ignoring "large number of binding decisions of the Supreme Court" and giving "impermissible benefit to accused". Law on condonation of delay explained. CBI directed to implement mechanism to ensure that all appeals are filed in time.  – [State of Jharkhand v. Lalu Prasad Yadav – Date of Judgement : 08.05.2017) (SC), State of Jharkahnd v. Dr. Jagannath Mishra – Date of Judgement : 08.05.2017 (SC)]

 

Delay of 448 days in filing of appeal was not condoned and strictures passed regarding the “standard excuses” of the department for delay in filing appeals, namely, budgetary constraints, lack of infrastructure to make soft copies, change of standing counsel etc.

Dismissing the appeal of the revenue, the Court held that; there is an in ordinate delay of 448 days in re-filing the appeal. The Court finds that the standard excuse that the Department is putting forth in all such applications for condonation of delay in re-filing the appeal is two-fold. The first is regarding the budgetary constraints of the Department which delayed payment of the differential court fees as a result of the Court Fees Delhi Amendment Act, 2012 which came into force on 01.08.2012. The second is regarding the practice directions issued by the Court pertaining to filing of soft copies of the paper books in tax matters. - [PCIT v. Diana Builders & Contractors (P) Ltd. – Date of Judgement : 17.04.2017 (Delhi)]

 

The Commissioner and his officials are playing a blame game. To cover up their lapses and deficiencies, they turned around and blamed their Advocates .. We are sorry to say that this is not what was expected from the Commissioner of Service Tax. If the officers are unaware of legal procedures, then, they have to be in touch with their Advocates and periodically. They cannot expect that the Advocate himself comes to their office and apprise them as to what further has to be done after the filing of an Appeal

While filing a cryptic affidavit in support, initially we had observed that the Commissioner and his officials are playing a blame game. To cover up their lapses and deficiencies, they turned around and blamed their Advocates. They are of the opinion that their Advocates ought to inform them and at every stage of the matter, particularly as to which office objections have to be complied with or are to be removed. If no such communication is made by the Advocates, then the Commissioner feels that he and his officers are not at fault. We are sorry to say that this is not what was expected from the Commissioner of Service Tax. If the officers are unaware of legal procedures, then, they have to be in touch with their Advocates and periodically. They cannot expect that the Advocate himself comes to their office and apprise them as to what further has to be done after the filing of an Appeal. - [CCE v. Vansum Industries – Date of Judgement : 13.02.2017 (Bom.)]

 

Supreme Court issues strictures against the income-tax department stating that it is "extremely unhappy" with the delay of 3381 days in refiling the SLP and demands that "The concerned authorities need to wake up"

Learned Solicitor General says that in view of the decision of this Court in ACG Associated Capsules (P) Ltd. v. CIT (Central-IV), Mumbai (2012) 3 SCC 321], this petition be dismissed on merits.

We are extremely unhappy with the delay of 3381 days in refiling the special leave petition but make no other comment. The concerned authorities need to wake up. The special leave petition is dismissed both on the ground of delay as also on merits. – [CIT v. Krishan K. Aggarwal – Date of Judgement : 16.01.2017 (SC)]

Writ Petition: A Writ Petition filed little after four months of receipt of impugned order suffers from “delay”. If the Writ Petition does not explain the reasons for the “delay”, it is liable to be dismissed

We find that the impugned order of the Tribunal was passed on 4th December, 2015, received by the petitioner on 28th December, 2015. This petition has been filed on 29th April, 2016. The petition states that according to the petitioner, there is no delay in filing the petition. However, if this Court is of the view that there is a delay and delay may be condoned. However, no reasons with particulars are specified in the petition. In view of the fact that the petition itself does not explain the reason for the delay, the petition is liable to be dismissed. – [Shirpur Gold Refinery Ltd v. ITAT – Date of Judgement : 27.07.2016 (Bom.)]

 

A liberal view must be taken in matters of condonation of delay. A delay of 2191 days caused by an employee leaving the services of the assessee and not handing over papers to the assessee deserves to be condoned

In every case of delay, there can be some lapses on the part of the litigant concern. That alone is not enough to turn down the plea and to shut the doors against him, unless and until, it makes a mala-fide or a dilatory statutory, the court must show utmost consideration to such litigant. In matters concerning the filing of appeals, in exercise of the statutory right, a refusal to condone the delay can result in a meritorious matter being thrown out at the threshold, which may lead to miscarriage of justice. Since the employee who was earlier handling the tax matters of the assessee company, while leaving the job of the assessee company, did not handover the relevant papers either to the assessee or to the next person, a fact which caused the delay, the delay was liable to be condoned by taking a lenient view. (Related Assessment year : 2002-03) – [Lahoti Overseas Ltd. v. DCIT – Date of Judgement : 18.03.2016 (ITAT Mumbai)]

 

Entire law on condonation of delay explained

Section 5 of the Limitation Act cannot be stretched to bring about a situation of unsettling judicial decisions which stood accepted by the parties. If the contention of the applicant is accepted, it would create a situation of chaos and unsettling various orders passed from time to time by the Tribunal as accepted by the parties. The legislative mandate in stipulating a limitation to file an appeal within the prescribed limitation cannot be permitted to be defeated when a litigant has taken a decision not to pursue further proceedings. A new ruling is no ground for reviewing a previous judgment. If this is permitted, the inevitable consequence is confusion, chaos, uncertainty and inconvenience as then no orders can ever attain finality though accepted by parties. (Related Assessment year : 2003-04)  - [Somerset Place Co-operative Housing Society Ltd. v. ITO Date of Judgement : 13.02.2015 (Bom.)]

 

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:

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. (Related Assessment year : 2005-06) – [M/s K.G.N.M.M.W. Educational research & Analysis Society v. ITO – Date of Judgement : 13.02.2015 (ITAT Jaipur)]

 

 

The Supreme Court has in State of U.P. v. Amar Nath Yadav reiterated its earlier decision in Postmaster General v. Living Media India Limited (2012) 3 SCC 563 where it was observed as under:

“In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the Government Departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few“. – [State of U.P. v. Amar Nath Yadav (2014) 2 SCC 422]

 

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

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 ActTherefore, 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. (Related Assessment year : 2002-03) - [SRF Limited v. ACIT – Date of Judgement : 13.11.2014 (ITAT Delhi)]

 

We are of the view that in case CIT(A) chose not to condone the delay, he has no business to adjudicate the appeal on merits. For this, we are of the view that first of all, the appeal should be admitted for making a decision on merits because the right to appeal is neither an absolute right nor an ingredient of natural justice the principles of which must be followed in all judicial and quasi judicial adjudications. The right to appeal is statutory right and it can be circumscribed by the conditions in the grant. If the statute gives a right to appeal upon certain conditions, it is upon
fulfillment of those conditions that the right becomes vested in and exercisable by the appellant. Here the assessee’s appeal is delayed as alleged by CIT(A) and without admitting the appeal he has adjudicated the same on merits. Once the appeal is not admitted nothing is pending before him (CIT v. Mysore Iron & Steel Works (1949) 17 ITR 478 (Bom.) followed). (Related Assessment year : 2004-05) – [Dr. Murari Mohan Kokey v. ITO – Date of Judgement : 05.11.2014 (ITAT Kolkata)]

Supreme Court laid down detailed guidelines on condonation of delay

In the decision reported in 2013 (5) CTC 547 (Esha Bhattacharjee V. Managing Committee of Raghunathpur, Nafar Academy and others, the Supreme Court while dealing with the issue on the delay of seven years in filing an appeal, held as follows:

“15. From the aforesaid authorities the principles that can broadly be culled out are:

(i)   There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

(ii)   The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

(iii)  Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

(iv)  No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

(v)   Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

(vi)  It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuation there is no real failure of justice.

(vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

(viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

(ix)  The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

(x)   If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

(xi)  It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

(xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.” - [Esha Bhattacharjee v. Managing Committee of Raghunathpur, Nafar Academy (2013) 5 CTC 547 (SC)]

 

Condonation of delay - Appeal to Supreme Court - Special leave petition - Appeal by department - Delay by Department in filing appeal cannot be mechanically condoned

The Government filed an appeal to challenge the judgement of the High Court. There was a delay of 427 days in filing the appeal which was caused due to the normal bureaucratic procedure. The department cited a number of judgements and argued that in matters relating to the Government, a lenient view had to be taken as there was no want of bona fides. Held dismissing the appeal: In the absence of plausible and acceptable explanation for the delay, the question to be posed is why the delay should be mechanically condoned merely because the Government is a party. Though in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government. It is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. As there was no proper explanation for the delay except mentioning of various dates and the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay, the appeals have to be dismissed on the ground of delay. - [Office of the Chief Post Master General and others v. Living Media India Ltd. (2012) 348 ITR 7 (SC)]

 

Department’s Appeals should not be dismissed for delay

High Court dismissing appeal of the Department on the ground of delay. It was held that looking to the amount of tax involved in this case, we are of the view that the High Court ought to have decided the matter on merits. In all such cases where there is delay on the part of the Department, we request the High Court to consider imposing costs but certainly it should examine the cases on merits and should not dispose of cases merely on the ground of delay, particularly when huge stakes are involved. Impugned order was set aside and matter was remitted to High Court to decide the case de novo in accordance with law. High Court was further requested to dispose of this case as early as possible, preferably within a period of four months from 10.12.2010. - [CIT v. West Bengal Infrastructure Development Finance Corporation Ltd. (2011) 334 ITR 269 : 241 CTR 504 (SC)]

 

It was held that the court has to exercise the discretion on the facts of each case keeping in mind that in construing the expression “sufficient cause”, the principle of advancing substantial justice is of prime importance. - [Vedabaialias Vaijayanatabai Baburao Patil v. Shantaram Baburao Patil and Others (2002) 253 ITR 798 (SC)]

The Supreme Court had condoned a delay of 833 days. It was observed that condonation of delay is a matter of discretion of the Court and the only criteria is the acceptability of explanation irrespective of the length of delay – [N. Balkrishan v. M. Krishnamurthy (1998) 7 SCC 123]

The Courts have also held that the mistake of an Advocate or Chartered Accountant is a reasonable cause for delay in filing an appeal. - [Mahavir Prasad Jain v. CIT (1988) 172 ITR 331 (MP); Punam Singh v. ITO (2002) 257 ITR 38 (ITAT Chennai)]

A subsequent decision of the Supreme Court/High Court was considered as sufficient cause for condoning delay in filing the appeal. - [State of Andhra Pradesh v. Venkataramana Chudava & Muramura Merchant (1986) 159ITR 59 (AP)]

On knowing that the High Court had dismissed his appeal on the ground that his Advocate was not present in the Court when the matter was taken up for hearing the appellant moved an application for the recall of the order dismissing the appeal and for permission to participate in the hearing of the appeal. The High Court rejected this application stating that no satisfactory explanation had been furnished by the Advocate for his slackness in filing the affidavit for nearly 15 days after it was drafted.

It has been held that the mistake of the counsel may in certain circumstances be taken into account in condoning the delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground. Accordingly, the Hon’ble Apex Court has held that there is a mistake of the counsel and, therefore, the delay in filing the appeal has been condoned. - [Concord of India Insurance Co. Ltd. v. Smt. Nirmala Devi & Sons (1979) 118 ITR 507 (SC)]

 

Where an application for condonation of delay in filing an appeal is preferred, it is the statutory obligation of the appellate authority to consider whether sufficient cause for not presenting the appeal in time was shown by the appellant. - [Shrimant Govindrao Narayanrao Ghorpade v. CIT (1963) 48 ITR 54 (Bom)]

It was held that for condoning the delay, the appellant may only be called upon to explain the delay covered by the period between the last day prescribed and the day on which the appeal is filed. - [Ramlal v. Rawa Coal Fields Ltd. AIR 1962 (SC) 361]

Revenue can object to delay in filing appeal

If an appeal by an assessee is admitted without the fact of delay in its presentation having been noticed, it is open to the department to raise the objection at the time of hearing of the appeal. - [Mela Ram & Sons v. CIT (1956)29 ITR 607 (SC)]