TMI Blog2014 (12) TMI 676X X X X Extracts X X X X X X X X Extracts X X X X ..... is predecessors i.e. Mr. Suresh Chawla and Mr. Rohit Bhatla who were working as AVP Taxation and Manager Taxation respectively and left the assessee company in October 2007 and January 2007 respectively but the appeal could not be filed on time, therefore, delay was caused. 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 there was no "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. The date on which Mr. Hemant Kumar Gupta found relevant papers in a file folder is neither mentioned in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resh Chawla and Mr. Rohit Bhatia left the organisation in October 2007 and January 2007 respectively. Recently, the new incumbent, Mr. Hemant Kumar Gupta who joined the company in February 2008, while culling out certain details/ information, in connection with the filing of appeal to CIT (A) against the order dt 23106/2009 levying penalty u/s 271(1)(c) in respect of assessment proceedings u/s 147 for the assessment year 2002-03 (Copy of the order also enclosed herewith), noticed that in one of the files, four copies of draft set of appeal documents for the assessment year 2002-03 were kept. After finding that acknowledgment of filing appeal for the assessment year 2002-03 was not there in the master file, Mr. Hemant enquired as to whether the appeal for the said assessment year was actually filed before the Tribunal or not. On verifying the appeal documents, Mr. Hemant discovered that the relevant papers being inadvertently put in the wrong file, no appeal had been filed. An affidavit of the Mr. Hemant is attached herewith in support of the above averments. It is in the aforesaid peculiar facts and circumstances that the delay in filing the appeal within the statutory period of 60 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Pundlik Jalam Patil (dead) by LRS vs Executive Engineer, Jalgaon Medium Project (2008) 17 SCC 448 and submitted that when the conduct of the senior officers of the assessee and facts of the case clearly show the neglect of its own right for a long time in preferring appeals, then it is not expected from the judicial and quasi-judicial authorities to inquire into belated and stale claims on the ground of equity. The DR vehemently contended that the principle of equity as argued by the ld. Counsel of the assessee does not apply to tax proceedings and delay defeats equity. 6. Ld. DR also contended that the onus is on the assessee to establish and substantiate the day to day delay of 1163 days i.e. about three years, two months and eight days duration which has not been discharged by the assessee. Ld. DR also pointed out that admittedly, the assessee received copy of the order of the CIT(A) dated 30.3.2006 on 19.4.2006 and the last date of filing the appeal expired on 17.06.2006 which was actually filed on 11.8.2009 with a delay of 1163 days, hence, the assessee has to show sufficient cause for the said delay of filing appeal but the assessee has miserably failed to show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is para materia to the provisions of section 253(5) of the Act. The relevant observations of Hon'ble Apex Court in this case read as under:- The Legislature has conferred the power to condone delay by enacting section 5 of the Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on de merits . The expression sufficient cause employed by the Legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which sub-serves the ends of justice that being the life purpose of the existence of the institution of courts. It is common knowledge that this court has been making a justifiably liberal approach in matters instituted in this court. But the message does not appear to have percolated down to all the other courts in the hierarchy. 9. In the present case, admittedly, the appeal has been filed by delay of 1163 days and as per affidavit of Mr. Hemant Kumar Gupta, Manager- Taxation of the assessee company, we observe that he (Mr. Gupta) joined post of Manager-Taxation on 29.02.2009 and while culling out the details/information in connection with filing of appeal against the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtraordinary delay without any sufficient cause. 11. In view of submissions and contentions of both the parties, at the outset, we respectfully take note of the decision of Hon'ble Apex Court in the case of Vedabai alias Vaijayantabai Naburao Patil vs Shantaram Baburao Patil (supra) wherein the delay of 7 days was condoned with following observations thus:- The Supreme Court in the case of Vedabai Alias Vaijayanatabai Baburao Patil V. Shantaram Baburao Patil: 253 ITR 798 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. The Court held that the expression sufficient cause should receive liberal construction. 12. We also respectfully take note of decision of Hon'ble Supreme Court in the case of Collector, Land Acquisition V. Mst. Katiji (supra) wherein the delay of four days in filing appeal has been condoned with following observations thus: - The Legislature has conferred the power to condone delay by enacting section 51 of the Limitation Act of 1963 in order to enable the courts to do sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat draft SLP was not approved by the Board. The Board after approving the draft SLP sent this file to CAS on October 1, 1993. After incorporating the above explanation, this Court refused to condone the delay by observing thus: 3. ... .... Having regard to the law of limitation which binds everybody, we cannot find any way of granting relief. It is true that Government should not be treated as any other private litigant as, indeed, in the case of the former the decisions to present and prosecute appeals are not individual but are institutional decisions necessarily bogged down by the proverbial redtape. But there are limits to this also. Even with all this latitude, the explanation offered for the delay in this case merely serves to aggravate the attitude of indifference of the Revenue in protecting its common interests. The affidavit is again one of the stereotyped affidavits making it susceptible to the criticism that the Revenue does not seem to attach any importance to the need for promptitude even where it affects its own interest. [Emphasis supplied] ii) In Pundlik Jalam Patil (dead) by LRS. vs. Executive Engineer, Jalgaon Medium Project and Another, (2008) 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r explanation of such delay on the ground of involvement of public revenue. It serves no public interest. 11) We have already extracted the reasons as mentioned in the better affidavit sworn by Mr. Aparajeet Pattanayak, SSRM, Air Mail Sorting Division, New Delhi. It is relevant to note that in the said affidavit, the Department has itself mentioned and is aware of the date of the judgment of the Division Bench of the High Court in LPA Nos. 418 and 1006 of 2007 as 11.09.2009. Even according to the deponent, their counsel had applied for the certified copy of the said judgment only on 08.01.2010 and the same was received by the Department on the very same day. There is no explanation for not applying for certified copy of the impugned judgment on 11.09.2009 or at least within a reasonable time. The fact remains that the certified copy was applied only on 08.01.2010, i.e. after a period of nearly four months. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Department nor the person in-charge has filed any explanation for not applying the certified copy within the prescribed period. The other dates mentioned in the affi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay. 14. We further respectfully take note of the decision of Hon'ble Apex Court, as relied by the Revenue, in the case of Pundlik Jalam Patil (supra) wherein it was held that the evidence on record suggests neglect of its own right for a long time in preferring the appeals, then the settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay. The relevant operative paras 17 and 29 of this decision have been noticed and reproduced by Hon'ble Apex Court in its subsequent decision in the case of Office of the Chief Postmaster General and Others vs Living Media India Ltd. and Another (supra) as reproduced hereinabove in the earlier part of this order. 15. Turning to the facts and circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of above contentions and submissions of both the sides, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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