TMI Blog2017 (6) TMI 832X X X X Extracts X X X X X X X X Extracts X X X X ..... se applications under Section 5 of the Limitation Act have been preferred by the common applicant assessee requesting to condone the huge delay of 1546 in preferring the respective Tax Appeals against the common judgment and order passed by the learned Income Tax Appellate Tribunal, Ahmedabad B Bench Ahmedabad (hereinafter referred to as the learned tribunal ) 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preferring the Tax Appeals. [4.0] Both these applications are vehemently opposed by Shri Manish Bhatt, learned Counsel appearing on behalf of the revenue. It is submitted by Shri Manish Bhatt, learned Counsel appearing on behalf of the revenue that as such huge delay of 1564 days in preferring the Tax Appeals has not been sufficiently and properly explained. It is vehemently submitted by Shri Manish Bhatt, learned Counsel 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s expired on 28/12/2012. The Appeals have been preferred on 14/03/2017 i.e. beyond 1564 days. It is the case on behalf of the common applicant that as thereafter the applicant assessee preferred the rectification applications under Section 254(2) of the Income Tax Act, which came to be dismissed vide order 13/10/2016 and thereafter the applicant assessee preferred Special Civil Applications before this Court, which came to be dismissed on 06/03/2017 and thereafter 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be unjustifiable. The concepts such as liberal approach, justice oriented approach, substantial justice can not be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. We are rather 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be treated to have been enacted purposelessly. Furthermore, it is also a well settled canon of interpretative jurisprudence that the Court should not give such an interpretation to provisions which would render the provision ineffective or odious. Once the legislature has enacted the provisions of Order 22, with particular reference to Rule 9, and the provisions of the Limitation Act are applied to the entertainment of such an application, all these provisions have to be given their true and 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. [5.5] Now so far as the reliance placed upon the decision of the Hon ble Supreme Court in the case of N. Balakrishnan (Supra) by the learned Counsel appearing on behalf of the applicant assessee is concerned, at the outset it is required to be noted that the said decision came to be considered by the Hon ble Supreme 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
