TMI Blog2017 (10) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... mprehension of human conduct and probabilities. The Tribunal though aware of these principles but possibly carried away by the fact that the delay of 2984 days is incapable of condonation. That is not how a matter of this nature should be approached. In the process the Tribunal went about blaming the assessee and the professionals and equally the Department. To our mind, therefore, the Tribunal's order does not meet the requirement set out in law. The Tribunal has completely misdirected itself and has taken into account factors, tests and considerations which have no bearing or nexus with the issue at hand. The Tribunal, therefore, has erred in law and on facts in refusing to condone the delay. The explanation placed on affidavit was not contested nor we find that from such explanation can we arrive at the conclusion that the assessee was at fault, he intentionally and deliberately delayed the matter and has no bona fide or reasonable explanation for the delay in filing the proceedings. The position is quite otherwise. In the light of the above discussion, we allow both the appeals. We condone the delay of 2984 days in filing the appeals but on the condition of payment of cos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior Counsel appearing on behalf of the appellant, would submit that both the appeals were filed by the assessee against two separate orders of the Commissioner of Income Tax (Appeals), dated 1 -2-2000. In both the orders, the assessee was aggrieved by the decision of the Commissioner in rejecting the deduction claimed under Section 80- O of the Income Tax Act, 1961 ( the I.T. Act, 1960 for short). 7. Mr. Dastur would submit that true it is that the delay of 2984 days, in that sense is enormous but capable of being condoned. If there was sufficient cause shown for the condonation of delay, then, the Tribunal should have applied the well settled principles in consideration of the application. The well- settled principles are: if the cause shown or the explanation given is true, reasonable and bona fide, then, whether the delay should be condoned and liberally and even if not unconditionally but by imposing such conditions which are just and which would enable the assessee to have an adjudication of the issue on merits. Mr. Dastur would submit that one of the principles which have been carved out in numerous decisions of the Hon'ble Supreme Court on the point is that if the li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee, the appeal is filed on 20 -7 -2011. There is a delay of 2984 days in filing the appeal, but for the cause or reasons set out in his personal affidavit, the delay be condoned. 11. In the personal affidavit, it is stated by the assessee that he is a citizen of India, aged about 58 years and retired from service in January, 2003. He had received the copy of the order of the Commissioner of Income Tax (Appeals) on 20- 3 -2003. He states that during material period he was employed with a German Bank as a Mumbai Representative. He was rendering his services from India to a foreign employer. He, therefore, claimed a deduction under Section 80 O of the I.T. Act, 1961 and with respect to the salary earned by him from the employer. The claim for deduction under Section 80 O was disallowed by the Assessing Officer for the Assessment Year 1993 94 and confirmed by the Commissioner of Income Tax (Appeals). Against this order of the Commissioner, the assessee preferred an appeal before the Tribunal. That appeal was filed after consulting a Chartered Accountant. It is stated that the Chartered Accountants M/s. Rajesh Rajeev Associates were handling the income tax affairs and matters fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear 1996 -97. This application was made on 15- 7 -2009. After continuous follow up with the Department and also seeking information under the Right to Information Act, 2005, finally, this rectification application was rejected by the Assessing Officer on 14 -5 2010. That is why the matter was again taken up by the assessee with his Chartered Accountants who advised him earlier to prefer the rectification application. On 18-4 -2011, the assessee received a written advise from his Chartered Accountant mentioning in the communication in that behalf that the view or approach of the Assessing Officer/Income Tax Department was incorrect. They advised the assessee to follow up the matter with the Department. Thereafter, the assessee consulted another Chartered Accountant Mr. Yatin K. Desai, who, after perusing the record, advised him to file appeals before the Tribunal against the initial orders of the Commissioner of Income Tax (Appeals) dated 1 -3 -2000 and together therewith an application for condonation of delay. 13. It is in these circumstances that the assessee stated on oath that he acted bona fide under the advice from his Chartered Accountants and there is no negligence nor a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not opposing the request for condonation of delay, turned its attention towards the assessee's Chartered Accountant. It is unfortunate that thereafter paragraphs after paragraphs are devoted to how a Chartered Accountant ought to conduct himself and while advising litigants in tax matters. How a Chartered Accountant, as a professional, should be aware that legal proceedings should be filed in time and if there are adverse orders, how proper advice should be given. It is very unfortunate that the Tribunal has, apart from seeking to advice professionals, blamed not only individual Chartered Accountants but equally the Institute of Chartered Accountants of India. It is unfortunate that Courts of law or Tribunals, which are the last fact finding authorities in this case, adopted this course. 16. In paragraph 11 of the order under appeal, a reference is made to a decision of the Allahabad High Court in the case of Sri Krishna Vs. CIT {142 ITR 618 (All)}. While it is true that statements made on affidavit remaining uncontroverted must not be accepted as true and reliable, it is clear that in the absence of contemporaneous record or any attempt to falsify the statements on o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overall view in the larger interest of justice has to be taken. None should be deprived of an adjudication on merits unless the Court of law or the Tribunal/Appellate Authority finds that the litigant has deliberately and intentionally delayed filing of the appeal, that he is careless, negligent and his conduct is lacking in bona fides. These are, therefore, some of the relevant factors. Those factors should therefore necessarily go into an adjudication of the present nature. 20. In Nirmala Devi (supra) , the Hon'ble Supreme Court held as under: 5. The Accident Claims Tribunal pronounced its award on September, 15, 1976, after making the necessary computations and deductions. The appeal had to be filed on or before January 19, 1977 but was actually filed 30 days later. Counsel for the petitioner is stated to have made the mistake in the calculation of the period of limitation. He had intimated the parties accordingly with the result that the petitioner was misled into instituting appeal late. The High Court took the view that the lawyer's ignorance about the law was no ground for condonation of delay. Reliance was placed on some decisions of the Punjab High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of law by courts are some times wrong. An amount of latitude is expected in such cases for, to err is human and lay men, as litigants are, may legitimately lean on expert counsel in legal as in other departments, without probing the professional competence of the advice. The court must of course, see whether, in such cases there is any taint of mala fides or element of recklessness or ruse. If neither is present, legal advice honestly sought and actually given, must be treated as sufficient cause when an application under Section 5 of the Limitation Act is being considered. The State has not acted improperly in relying on its legal advisers. 7. We have clarified the legal position regarding the propriety and reasonableness of companies and other persons relying upon legal opinion in the matter of computation of limitation since it is a problem which may arise frequently. If Legal Adviser's opinions are to be subjected by company managers to further legal scrutiny of their own, an impossible situation may arise. Indeed Government, a large litigant in this country, may find itself in difficulty. That is the reason why we have chosen to explain at this length the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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