TMI Blog2013 (11) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the provisions has to be made in order to advance substantial justice. Seekers of justice must come with clean hands. The assessee justified the delay only with reference to the doctors' certificates with regard to Managing Director's ill health. In addition to this the assessee filed affidavit stating that the orders were not received. However, the fact that Sri Bathina Veerabhadra Rao continued to be Managing Director, directing the other functions of that post, notwithstanding the sickness claimed to be being suffered by him, shows the falsity or at least, inadequacy of reasonableness in that cause. Further, the evidence produced by the Department shows otherwise. Therefore, it shows that delay was due to the negligence and inaction on the part of the assessee. The assessee could have well avoided the delay by exercising all due care and attention – Sufficient reason was not shown for condonation of delay – Reliance has been placed upon the judgments in the cases s.a. Vedabai Alias Vaijanthibai Baburao Patil vs. Shantaram Baburao Patil [2001 (7) TMI 117 - SUPREME Court] and Ramlal vs. Rewa Coal Fields Ltd.[1961 (5) TMI 54 - SUPREME COURT]- Decided against the Assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n either by post or as if it were a summon issued by the Court under the Code of Civil Procedure. [Para 11] As per the case of the revenue, a notice under section 143(2) was sent by registered post, which was received back undelivered with the endorsement 'No Plot No. 226 exists'. Thus, admittedly, notice under section 143(2) was not served upon the assessee. It may be pertinent to point out that alphabet 'B' was missing in the endorsement made by the postal authorities. Thus, it stood established that the postman had not gone to 'Plot No. B-226, Vivek Vihar, Delhi' because his endorsement did not say that 'Plot No. B-226, Vivek Vihar. Delhi' did not exist. On the other hand, it stated that 'No Plot No. 226 exists'. Further, there was interpolation on the address of the assessee mentioned on the registered envelope, i.e., over the alphabet 'B '. [Para 14) Order V, rule 12 of the Code of Civil Procedure, 1908 provides that wherever it is practicable, service shall be made on defendant in person or on his agent. [Para 12] Even otherwise, as per Order V, rule 19A of the Code of Civil Procedure, the notice sent by registered post ought to have been sent along with acknowledgement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explaining reasons that he did not come to know about assessment order and copy of assessment order was served subsequently through affixation - Commissioner (Appeals) turned down said explanation on ground that it was only on account of negligence on part of assessee - Whether since service of notice was through affixature and was not on person or in presence of assessee. it could not lead to conclusion that assessee did not come to know about assessment order because of negligence - Held. yes - Whether, therefore. Commissioner (Appeals) was not justified in not condoning delay in filing appeal which was properly explained - Held, yes On second appeal: HELD It was not disputed by the revenue that the service of the assessment order was made by the Assessing Officer only by way of affixture. Thus. the question arises whether the service through affixture only is a proper service in the absence of exhausting other mode of services by the Assessing Officer. [Para 4} Section 282 makes it clear that primarily the service of the order/notice shall be by post or by such courier service as may be approved by the Board or in such manner as provided in Civil Procedure Code. The other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd that the party has not acted in mala fide but the reasons explained are factually correct then Court should be liberal in construing the sufficient cause and should lean in favour of such party. Whenever substantial justice and technical consideration are opposed to each other, cause of substantial justice has to be preferred. Justice-oriented approach has to be taken by a Court while deciding the matter for condonation of delay. However, this does not mean that a litigant gets free licence to approach the Court at its will. In view of this legal and factual position, we condone the delay of 92 days in filing the appeals before the Commissioner (Appeals) was to be condoned. Since the Commissioner (Appeals) had dismissed the appeal in limine without deciding the issue on merits, therefore, the matter was to be remitted back to the Commissioner (Appeals) for deciding the same on merits. [Para 7] 4. The Hon'ble Supreme Court in the case of CIT v. Ramendra Nath Ghosh 82 ITR 888 (SC) held that: "The contention of the assessees was that at the relevant time they had no place of business. The report of the serving officer did not mention the names and addresses of the person who iden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 (Delhi). He submitted that the Department has only submitted the evidence of dispatch and not the proof of service, it is only presumed to have been served. The AR submitted that the assessee had obtained a certified copy of the CIT(A) order from the office of the CIT(A) and filed the appeal in time. In fact there is no delay in filing of the appeal before the Tribunal. In view of the above facts and circumstance of the case the Tribunal may admit the appeals and dispose of the same on merits. 4. On the other hand, the learned DR submitted that there is no truth in the plea of the assessee counsel that orders of the CIT(A) are not served on the assessee. Originally the orders were sent to wrong address and when they were returned again they were sent to the address at D- 2, Amrutha Villa, opposite Ashoka Hospital, Raj Bhavan Road, Hyderabad. These were not returned back to the Department. Further, she submitted that the assessee in affidavit dated 16.8.2012 filed before the Tribunal has stated illness from 20.8.2004 to January 2008 and afterwards till now. However, there are various instances as per assessment record where Sri Bathina Veerabhadra Rao, Managing Director has atte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee shall be supported by further corroborative evidence. The Managing Director shall show that he has not carried out any activity during these 8 years, for that purpose has not visited foreign countries and he has not operated his bank account, not used credit card. According to her, the authenticity of doctor certificate is in doubt and it is a selfmade document to suppress the facts and it should be rejected in limine. 6. We have heard both the parties and perused the material on record. We have carefully gone through the petition filed by the assessee as also the affidavit. The contents of the medical reports issued by Dr. Murthy and Dr. Sekhar Reddy are reproduced hereu hereunder: 7. As seen from the above, the plea of the regarding the delay in filing these appeals is contradictory in nature. Firstly, the assessee has tried to make out a case that the assessee came to know by the CIT(A) only on receipt of complaint filed before the Economic Office Court, Hyderabad on 5.8.2012. Secondly, it was stated that the Managing Director of the assesseecompany is not keeping well and suffering from acute depression, mental instability, hypertension and diabetes. The Departme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... managed by a Board of Directors. The activities of the assessee are not controlled by a single person viz., Sri Bathina Veerabhadra Rao. Even if it is presumed that the Managing Director is sick, what prevented the other directors to file the appeals. The assessee being a public limited company is to hold board meetings and also annual general meeting and is required to file various returns to the Income-tax Department, Commercial Tax Department, ESIC, PF authorities and Registrar of Companies. On a careful consideration of the facts of the present case we are of the opinion that the assessee has not come with clean hands and its action cannot be said to be bona-fide. Thus it is guilty of suppressive vari. The contentions of the learned counsel for the assessee do not inspire confidence. Firstly the very fact that the assessee did not disclose date of receipt of orders by Sri Bathina Veerabhadra Rao, Managing Director and made a contention that the Managing Director of the company not keeping well. However, we find that the orders are already served on the assessee and the assessee has not taken any steps to file the appeals. Even otherwise, the person suffering from such medical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or merely out of benevolence to the party seeking relief. In granting the indulgence and condoning the delay, it must be proved beyond the shadow of doubt that the assessee is diligent and was not guilty of negligence whatsoever. A sufficient cause within the contemplation of the Limitation provisions must be a cause which is beyond the control of the party invoking the aid of the provisions. Where no negligence, nor inaction or want of bona-fide can be imputed to the assessee a liberal construction of the provisions has to be made in order to advance substantial justice. Seekers of justice must come with clean hands. The assessee justified the delay only with reference to the doctors' certificates with regard to Managing Director's ill health. 15. In addition to this the assessee filed affidavit stating that the orders were not received. However, the fact that Sri Bathina Veerabhadra Rao continued to be Managing Director, directing the other functions of that post, notwithstanding the sickness claimed to be being suffered by him, shows the falsity or at least, inadequacy of reasonableness in that cause. Further, the evidence produced by the Department shows otherwise. Therefore, ..... 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