2018 (12) TMI 1678 - HC - Income Tax

Condonation of delay - delay in excess of 700 days - HELD THAT - The relevant facts were not elaborated in such affidavit. In face of such affidavit we do not think that the delay in excess of 700 days caused in filing appeal before the Tribunal even by adopting liberal standards can be condoned. We cannot loose sight of the contentions of the Counsel for the Assessee that on the same issue for the succeeding as well as for the preceding AY the Assessee had filed appeal before the Tribunal and that issue being covered by the Judgment of the High Court such appeals were allowed. Therefore we would not readily accept the fact that the Assessee was not interested in filing appeal in the present year also. However Assessee must explain the delay properly which in the present case has not been done. We would therefore enable the Assessee to file Additional Affidavit before the Tribunal giving further and better particulars of the reasons for the delay. For such purpose we would remand the proceedings before the Tribunal after setting aside the impugned Judgment. The Assessee would be at liberty to file additional affidavit in support of the request for condonation of delay. Such affidavit may be filed before 31st January 2019 before the Tribunal. Before closing we may clarify that merely because in the present case the Appeal was filed not simultaneously along with Appeal for the Assessment Year 2007-08 would not by itself falsify Assessee s explanation particularly the statement that Asseessee s appeal was ready for presentation before the Tribunal. The Tribunal examined all aspects of the Assessee.

Summary

Issues:
Challenging the Tribunal's dismissal of appeal due to unexplained delay in filing.

Analysis:
The Appellant, an Assessee, contested the Tribunal's decision to dismiss their appeal based on a 748-day delay in filing. The Assessee submitted an affidavit by the Company's Director to explain the delay, but the Tribunal found the explanation unsatisfactory and rejected the request for condonation of delay. The Tribunal noted discrepancies in the affidavit and questioned why the appeal for the relevant Assessment Year was not filed alongside other appeals.

The Appellant's Counsel argued that appeals for preceding and succeeding Assessment Years were filed, and the issue in the present appeal was covered by a previous High Court judgment. The Counsel contended that the Assessee had provided a valid explanation for the delay. On the contrary, the Revenue's Counsel opposed, stating that the Tribunal's reasons for rejecting the explanation were sufficient and no legal question arose.

Upon reviewing the affidavit, the High Court found the delay inadequately explained and not justifiable even with lenient standards. However, considering the Assessee's track record of filing appeals for similar issues in other years, the Court was not convinced that the Assessee lacked interest in filing the present appeal. The Court decided to allow the Assessee to submit an additional affidavit before the Tribunal, providing detailed reasons for the delay. The Court remanded the case back to the Tribunal, setting a deadline for the additional affidavit submission.

The High Court clarified that the non-simultaneous filing of the present appeal with other appeals did not invalidate the Assessee's explanation, especially regarding the readiness of the appeal for submission. Ultimately, the Court dismissed the appeal but granted the Assessee an opportunity to rectify the delay explanation through a supplementary affidavit to be filed before the Tribunal by a specified date.