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2015 (9) TMI 24 - DELHI HIGH COURT

2015 (9) TMI 24 - DELHI HIGH COURT - [2016] 380 ITR 179 - Condonation of delay - Held that:- The Court is not satisfied with the reasons offered for the extraordinary delay of 1271 days in filing ITA No. 453 of 2012 and the delay of 1876 days in filing ITA No. 464 of 2012. Accordingly CM Nos. 13614/2010 in ITA No. 453/2012 and CM No. 14085/2012 in ITA No. 464/2012 are dismissed.

The reasons for the delay of 426 days in re-filing ITA No. 453 of 2012 are also wholly unconvincing. - ITA .....

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appeal) in ITA No. 464/2012 1. These are three applications seeking condonation of the delay in filing and re-filing two appeals filed by the Revenue under Section 260A of the Income Tax Act, 1961 ('Act') challenging the common impugned order dated 5th April 2007 passed by the Income Tax Appellate Tribunal ('ITAT') in I.T(SS).A.No.352/Del/1997 and I.T(SS).A.No.104/Del/1997 relating to the block period 1st April 1986 to 6th November 1996. 2. The background facts are that Elegant T .....

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the Act on Mr. Buta Singh, the father of Mr. Arvinder Singh, and Group. Notice was issued under Section 158BD of the Act requiring ETPL as well as Mr. Arvinder Singh to file their respective returns of income. Another similar notice was issued under Section 142(1) of the Act. After the Assessees filed their written submissions, fresh notices were issued to them under Section 143(2) of the Act. 4. As far as Mr. Arvinder Singh was concerned, the Assessing Officer ('AO') completed the asse .....

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8BD of the Act. The ITAT, therefore, declined to examine the merits. 5. As far as ETPL was concerned, by assessment order dated 30th September 1998 the AO completed the assessment and computed the total income of the Assessee as ₹ 34,95,760. ETPL also filed an appeal before the ITAT. By the same impugned order dated 5th April 2007, the appeal filed by the ETPL was allowed by the ITAT by setting aside the impugned assessment order on the ground of failure to provide an opportunity to the As .....

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filing the appeal. It was stated in the said application that initially no appeal was preferred against the impugned order dated 5th April 2007 of the ITAT as at that stage it was considered more appropriate to reframe the assessment." 8. CM No. 13616/2012 came to be filed in ITA No. 453/2012 seeking to explain the extraordinary delay of 429 days in re-filing the appeal. In this application it is claimed that a copy of the impugned order dated 5th April 2007 of the ITAT was received in the .....

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en the appeal of ETPL against the subsequent order of the ITAT dated 16th December 2009 was filed, it was noticed that ITA No. 453/2012 was unattended and it was only thereafter that the objections were removed and the appeal was re-filed. 9. The explanation offered for the delay in filing ITA No. 464/2012, in which ETPL was the Respondent, requires to now be noticed. The explanation offered in CM No. 14085/2012 (in ITA No. 464/2012) is that pursuant to the order dated 5th April 2007 of the ITAT .....

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t the said order dated 16th October 2009 of the ITAT to this Court by way of ITA No. 2018/2010. It is stated that when ITA No. 2018/2010 was listed before the Court some time in 2010, the Revenue sought leave to file an appeal against the ITAT's first order dated 5th April 2007. Thereafter, the Standing counsel for the Revenue immediately wrote to the Department informing it of the necessity to file an appeal against the impugned order dated 5th April 2007 of the ITAT. No dates are mentioned .....

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CM No. 13616/2012 came to be filed in ITA No. 453/2012 and in CM No. 14085/2012 in ITA No. 464 of 2012 that the order of the ITAT dated 5th April 2007 was received only on 29th July 2010, i.e. after three years and seven months, does not appear to be correct or convincing. The reason is this. 12. The Court had by an order dated 31st July 2014 granted the Appellant time to file an additional affidavit explaining sufficient cause and reasons for the delay in filing the appeal against the order da .....

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er the Appellant filed an additional affidavit on 22nd September 2014. Interestingly, in this additional affidavit (which is actually a submission supported by an affidavit) it is stated inter alia that when ITA No. 2018/2010 (being the appeal of the Revenue against the ITAT's order dated 16th October 2009) was listed for hearing on 28th January 2011 an order was passed by the Court noting the contention of the counsel for the Revenue that there was no impediment for the AO to have passed a .....

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mistaken belief was particularly for the reason that it was the contention of the Assessee before the ITAT that Assessing officer while passing AO violated the principles of natural justice by not providing an opportunity of being heard to the Assessee. The said mistaken belief is also reflected in the CSR recorded by the Department dated 08.02.2010. Copy of the CSR dated 08.02.2010 is attached herewith as ANNEXURE C." 14. It was further stated in para 13 that on the basis of the aforement .....

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2, when papers were actually entrusted to counsel for the Revenue for filing such an appeal. In other words, for a delay of one year and seven months there is no explanation whatsoever. 16. Thereafter in para 14 it is stated that in the present case the certified copy of the AO dated 5th April 2007 was received by Department/Revenue on 26th June 2007." Clearly, therefore, the earlier submissions made to the effect that the impugned order dated 5th April 2007 was received only on 29th July 2 .....

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e statement made by the Revenue itself in para 14 of the additional affidavit that it had received a copy of the order dated 5th April 2007 on 26th July 2007 itself. 17. Consequently, for computing the delay in filing the present appeals, the limitation should be reckoned from 26th June 2007, as rightly pointed out by the Respondent in its reply to the additional affidavit. The Revenue has a limitation period of 120 days i.e. 4 months to file an appeal under Section 260A of the Act. Therefore, t .....

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y works out to 5 years, 1 month and 19 days, i.e. 1876 days. 18. That the Revenue itself is confused about the exact days of delay is apparent from the additional affidavit filed by it in ITA No. 464/2012 where it has computed the delay in filing the said appeal as 565 days. 19. The purpose of the Court passing the order dated 31st July 2014 requiring a proper affidavit to be filed by the Revenue was to give it one more opportunity of giving a satisfactory explanation for the extraordinary delay .....

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ffidavit filed by the Revenue on 22nd September 2014, the Department was informed by counsel way back on 28th January 2011 that it ought to file appeal against the ITAT's order dated 5th April 2007. Therefore after 28th January 2011, the Department could not claim to be still under any confusion as to the course of action it was expected to take. It is plain that it did not take any urgent action as far as filing ITA No. 464/2012 was concerned till 14th August 2012. 21. As far as ITA No. 453 .....

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on 18th December 2010 i.e. more than an year and two months thereafter. Therefore even that delay is not satisfactorily explained. 22. In Postmaster General v. Living Media India Ltd. (2012) 3 SCC 563, the Supreme Court has deprecated the casual attitude of government departments in taking steps to file appeals within reasonable time in the following words: "26. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Department nor the p .....

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emains that from day one the Department or the person/persons concerned have not evinced diligence in prosecuting the matter to this Court by taking appropriate steps. 27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was posses .....

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are of the view that 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. 29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that .....

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