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TMI Blog2017 (6) TMI 832X X X X Extracts X X X X X X X X Extracts X X X X ..... ") in ITA No.3383/Ahd/2010 for the Assessment Year 2007-08 and ITA No.539/Ahd/2011 for the Assessment Year 2008-09. [2.1] It is the case on behalf of the common applicant - assessee that the impugned common judgment and order passed by the learned tribunal was received by the applicant - assessee on 03/08/2012. However, thereafter the applicant - assessee preferred rectification applications before the learned tribunal under Section 254(2) of the Income Tax Act, as according to the applicant - assessee the learned tribunal committed an error apparent while upholding the disallowance of 20% of the commission paid to the payee under Section 40A(2)(b) of the Income Tax Act as the applicant - assessee was advised that the said remedy of rectification applications was cheaper and better remedy. It is the case on behalf of the common applicant that the limitation for such a rectification applications was four years from the date of receipt of the order, and therefore, the applicant - assessee firm preferred Miscellaneous Applications on 24/12/2015, which came to be dismissed by the learned tribunal vide order dated 13/10/2016. The applicant - assessee firm preferred Special Civil Applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l appearing on behalf of the revenue that as such the delay for the period between passing of the common judgment and order passed by the learned tribunal, which was received in the year 2012 and up to filing of the rectification applications, which were filed in the month of December,2015 has not been explained at all. It is submitted that merely because four years time was available to the common applicant - assessee in preferring the rectification applications that does not mean that he can wait till the last date for preferring the rectification applications and thereafter prefer the Tax Appeals against the original order passed by the learned tribunal. It is submitted that if really the common applicant - assessee was vigilant and so serious about filing the rectification applications it ought to have preferred the rectification applications at the earliest after receipt of the common judgment and order passed by the learned tribunal and there was no reason for the common applicant - assessee to wait till the last date for filing the rectification applications. It is therefore submitted that in the facts and circumstances of the case the applicant - assessee cannot be permitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereafter Tax Appeals have been preferred on 14/03/2017 challenging the original common judgment and order passed by the learned tribunal, and therefore, it is requested to condone the delay. However, it is required to be noted that the rectification applications came to be preferred by the applicant - assessee on 24/12/2015 i.e. after a period of approximately more than three years. There is no explanation whatsoever for the period between 03/08/2012 to 24/12/2015 except the explanation that the limitation for such an application is four years from the date of receipt of the order. The aforesaid can hardly be a ground /sufficient ground not to prefer the rectification applications at the earliest and to wait till the last date of filing the Miscellaneous Applications. In such a situation the applicant is required to explain the reason for not filing the rectification applications at the earliest. In the additional affidavit the applicant has stated that as the Charted Accountant advised to prefer the rectification applications and as the four years period was available the applicant was relaxed and thereafter they preferred the Miscellaneous Applications on 24/12/2015 on being rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections can not and should not form the basis of exercising discretionary powers." [5.3] The Apex Court in a decision, rendered in case of Balwant Singh [Dead] v. Jagdish Singh & Ors., reported in 2010 AIR SCW 4848 has given the test for a sufficient cause and what is to be seen is as to whether the party by the exercise of due care and attention could have avoided the delay. It reiterated that sufficient powers and discretion is available with the Courts for applying this law in a meaningful manner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd correct meaning and must be applied wherever called for. If we accept the contention of the Learned Counsel appearing for the applicant that the Court should take a very liberal approach and interpret these provisions (Order 22, Rule 9 of the CPC and Section 5 of the Limitation Act) in such a manner and so liberally, irrespective of the period of delay, it would amount to practically rendering all these provisions redundant and inoperative. Such approach or interpretation would hardly be permissible in law. Liberal construction of the expression 'sufficient cause' is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable. There can be instances where the Court should condone the delay; equally there would be cases where the Court must exercise its discretion against the applicant for want of any of these ingredients or where it does not reflect 'sufficient cause' as understood in law. [Advanced Law Lexicon,P. Ramanatha Aiyar, 2nd Edition, 1997] The expression 'sufficient cause' implies the presence of legal and adequate reasons. The word 'sufficien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the subsequent decision in the case of Living Media India Limited & Anr. (Supra). Even otherwise, considering the subsequent decision of the Hon'ble Supreme Court referred to hereinabove, the decision of the Hon'ble Supreme Court in the case of N. Balakrishnan (Supra) shall not be of any assistance to the applicant - assessee. Now so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of GMG Engineering Industries and Others (Supra) is concerned, it is required to be noted that even in the said decision the Hon'ble Supreme Court has specifically observed that when there is no negligence, inaction or want of bona fide is imputable to the appellants, the delay has to be condoned. In the said decision the Hon'ble Supreme Court has also observed that the discretion is to be exercised like any other judicial discretion with vigilance and circumspection. The discretion is not to be exercised in any arbitrary, vague or fanciful manner and the true test is to see that the applicant has acted with due diligence. Applying the observations made by the Hon'ble Supreme Court to the said decision to the facts of the case on hand and as observed hereinab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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