TMI Blog2008 (1) TMI 527X X X X Extracts X X X X X X X X Extracts X X X X ..... s for condonation of delay originally filed, the delay incurred is of 1021 days. The Registry, as stated hereinabove, has objected that this is delay of 2 years 9 months and 14 days, i.e., 1017 days. However, it is seen, the actual delay incurred is that of 2 years 11 months and 15 days, i.e., 1079 days. 3. In the application for condonation of delay in I.T.A. No. 424 (ASR.)/2006, for the assessment year 1982-83, as originally filed, it has been stated as follows:- "The appeal under consideration pertaining to assessment year 1982-83 against the order of worthy CIT(A) received by the appellant-trust on 16-12-2003 is barred by time limitation by 1021 days. The delay is primarily related to the fact that the impugned order of worthy CIT(A) got misplaced and for that very reason, the appeal could not be filed in time. The appellant-trust being a Government owned organization has carried out an enquiry to look into the cause of this misplacement of order and have finally punished the concerned clerk for his negligence. It is, therefore, prayed that the delay in filing this appeal may please be condoned and the appeal treated as filed within the allowed time." 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder sheet noting dated 10-10-2007, the learned counsel for the assessee filed fresh affidavits of Shri Anoop Anand, Deputy Financial Advisor Chief Accounts Officer of the assessee-corporation (dated 5-10-2007) and Shri Harbans Lal Sharma, Dak Receipt Despatch Clerk of the assessee-trust/corporation (dated 6-10-2007). The mater was adjourned on the request of the learned D.R. to file his reply to the paper books filed by the assessee. 9. On 17-10-2007, the department filed its objections to the assessee's request for condonation of delay. 10. Vide order sheet entry dated 12-11-2007, the learned counsel for the assessee was asked to produce the original Dak Receipt Register, the Despatch Register and the original file of enquiry. 11. On 5-12-2007, on perusal of Dak Receipt Register, Despatch Register and file of enquiry, it was seen that there was no signature of the Dak Receipt Clerk, Shri Harbans Lal, in the register. Therefore, the learned counsel for the assessee was asked to file proper amended applications for condonation of delay. 12. On 3-1-2008, no application for condonation of delay stood filed. However, a final opportunity was granted to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under section 11 of the Act. The CIT(A) vide notice dated 27-10-2003, fixing the case for 13-11-2003. On 13-11-2003, the learned CIT(A) heard the assessee's appeal and asked the assessee to file the written submissions regarding the validity of those appeals. On 17-11-2003, the assessee filed a clarification before the learned CIT(A). On 3-2-2006, the Tribunal decided the department's appeals, holding that the CIT(A) was not justified in allowing exemption to the assessee under section 11 of the Act for examining whether the requisite conditions were fulfilled or not. The ITAT set aside the order of the CIT(A) and restored the assessments of the Assessing Officer for decision afresh. In this regard, the deletion of the additions by the CIT(A) was, however, upheld as not having been appealed against by the department. The Assessing Officer in compliance with the aforesaid Tribunal order, rejected the assessee's claim under section 11 of the Act. On 19-7-2006, the assessee filed an application under section 154 of the Act, for rectification of mistakes apparent from the record. On 17-8-2006, the Assessing Officer rejected the application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessee-corporation/trust, that it was found that on checking the receipt register, it become known that the Dak Receipt/Despatch Clerk had received the said order dated 13-11-2003 of the CIT(A); that Shri Harbans Lal Sharma, the then Dak Receipt Despatch Clerk had intimated that he regularly delivered the Dak to the concerned officers but he did not remember the particulars and that he was not well in those days and might have misplaced the order dated 13-11-2003 of the CIT(A); that on verbal enquiry from the DF A and CAO on 22-8-2006, he outrightly denied the receipt of the said order dated 13-11-2003 of the CIT(A) and conveyed that he never missed such an important document and that he, being a Senior Officer, understood the importance thereof; that the P.A. of the DFA and CAO explained that she always delivered the documents as and when she received them to the DFA and CAO, but did not remember anything about this particular document; and that in view of these facts, it seemed that this document, i.e., the order dated 13-11-2003 passed by the CIT(A), Jammu had been misplaced somewhere in the office. 18. The learned counsel for the assessee further contended that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, for rectification. Copies of these applications have been appended as Annexures A-1 to A-6 of the Department's Written Submissions ("DWS", for short). It has been pointed out by the learned D.R. that in these applications, the assessee had made the following submissions:- "The income of the trust assessed by your goodself is not correct because effect to the directions of the CIT(A) for deleting the disallowances/additions have been ignored while giving effect to order of CIT(A). Although the CIT(A) have said that "I find no utility of similar exercise in most/all points of later assessment years" yet he has clearly stated that "I had deleted the entire additions/disallowances covering all the grounds one by one in my order in appeal for the assessment year 1980-81 under Appeal No. A25/CIT(A)/811/02-03, dated 25-2-2003." 22. The learned D.R. has further submitted that the said applications of the assessee were disposed of by the Assessing Officer by passing separate orders for each year on 1-3-2004, which were served on the assessee by speed post. It has been urged that the Assessing Officer, in this order, has specifically observed as follows:- "I have gone th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee under section 154; that thereafter, immediately, an in-house enquiry into the matter was conducted by the assessee; that in the said enquiry, it was submitted that the Dak Receipt and Despatch Clerk had received the appellate order dated 13-11-2003 of the CIT(A), on 16-12-2003, but had failed to deliver it to any official! officer of the assessee-corporation, having misplaced the same; that the said Oak Receipt Clerk was in a disturbed state of mind due to the sudden and untimely death of his son in a road accident, a year earlier; that it was due to this disturbed state of mind that the Dak Receipt Clerk misplaced the order dated 13-11-2003 of the CIT(A) received on 16-12-2003. The assessee has averred that the assessee had immediately applied before the Assessing Officer for a certified copy of the order dated 13-11-2003, passed by the learned CIT(A); that the certified copy of the said order was received on 14-112006; and that after preparation of the appeals, they were filed immediately on 29-11-2006. In this manner, according to the assessee, sufficient cause has prevented it from filing these appeals in time. 27. The department, on the other hand, has placed docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned CIT(A); that had it been otherwise, there was no reason why the assessee ought not to have filed the appeals before the Tribunal immediately upon coming to know of the passing of the said order dated 13-11-2003 by the learned CIT(A). It has been submitted by the learned counsel for the assessee that it was only by way of the order dated 17-10-2006 passed by the Assessing Officer that the assessee came to know of the passing of the order dated 13-11-2003 by the learned CIT(A) and that the consequence of events succeeding such knowledge, as stated by the assessee, constitutes a sufficient cause for the delay in the filing of the appeals under consideration. 30. The contentions of the learned counsel for the assessee do not inspire confidence. Firstly, the very fact that the assessee did not disclose before this Bench the factum of its having filed the applications dated 1-8-2003, under section 154 of the Act before the Assessing Officer and of the passing of the order dated 1-3-2004 by the Assessing Officer on the said applications, casts a shadow of doubt on the bona fide of the assessee. With-holding of this information certainly does not go in favour of the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in filing the appeals. Rather, the modus operandi adopted by the assessee, as discussed hereinabove, is not beyond shadow of doubt. Mst. Katiji, therefore, works against, rather than in favour of the assessee. The assessee has contended that in Ram Kishan v. U.P. State Roadways Transport Corporation, the delay was condoned even though the reason for the delay given was not convincing. A copy of the said decision has been placed at pages 62 to 63 of the RPB. This contention of the assessee is, it is seen, only half correct. In that case, a death due to accident took place in 1974. A petition for compensation under the Motor Vehicles Act was filed in 1977, contending that the claimants were deeply bereaved by the death of their son and could not file the claim in time. It was in these facts that despite finding that the said reason stated by the claimants did not sound convincing, the Hon'ble Supreme Court condoned the delay by observing, inter alia, in para 4 of the order, as follows:- "(4) Although the story put forward by the appellants, for not filing the application for compensation within the period of limitation, does not sound convincing but keeping in view the facts an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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