TMI Blog2018 (1) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... caused the delay. It was also contended that the orders were passed on 24/06/2011. Plea was also raised that when the proceedings for Assessment Year 2010-11 were going on at that time the Ld. Assessing Officer informed the assessee. The Bench asked the ld. counsel whether he can produce the earlier tax consultant or to file an affidavit evidencing that in fact the orders were received by him and were not told to the assessee. The Ld. counsel contended that neither he can produce nor file an affidavit. The Bench again asked the ld. counsel for the assessee whether you can produce any evidence to show that the orders were in fact received by the earlier tax consultant. The Ld. counsel stated that no such evidence can be filed. The assessee has also filed certain case laws in its favour, which are kept on record. On the other hand, the ld. DR, Shri Ram Kumar Tiwari, contended that the assessee was contesting the penalty proceedings before the Department, therefore, he was very much aware that quantum proceeding has been decided against the assessee and even in Form No.36, the date of order received by the assessee has been mentioned as 30/06/2011, therefore, there is no bona-fide re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apse of 609 days. 2.3. Before this Tribunal, the assessee moved application for condonation of delay, supported by an affidavit duly sworn by Directors of the assessee company. 2.4. We find that the assessment order was passed on 28/02/2011, wherein, Shri Shashi Kumar Agarewal, Authorized representative of the assessee attended the proceedings and filed the necessary details. Before the Ld. Commissioner of Income Tax (Appeal), one Shri J.P. Purohit, consultant attended the proceedings and the order was passed on 24/06/2011. It is noted that in penalty proceedings, which are offshoot of quantum proceedings, the assessee duly contested the same as is evident from record. The necessary para from the penalty order is reproduced hereunder for ready reference and analysis:- 2.3. On the basis of above observation and assessee s own admission, the Assessing Officer held in the assessment order that assessee is involved in the activity of issuing accommodation bills only and therefore books account were rejected u/s 145(3) of the I.T. Act, 1961, as the Assessing Officer was not satisfied about the correctness and completeness of the accounts of the assessee. Therefore, consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... file an affidavit that in fact the order was received by the tax consultant and the assessee was not informed by him of such order The Ld. Counsel neither produced any evidence and specifically contended that neither the tax consultant can be produced nor any affidavit from him. In such as situation, when the assessee was actively contesting the penalty proceedings, there is no reason/evidence, that he was not aware about the quantum proceedings as the penalty proceeds are offshoot of quantum proceedings only. 2.6. Now, question arises, whether there is bona-fide reason of delay. Before us, as mentioned earlier, the assessee did not produce any evidence to substantiate its claim mentioned in the application/affidavit. It was the duty of the assessee to explain the delay of each day. As mentioned earlier, the assessee was duly attending the penalty proceedings during the period and the appeal before this Tribunal was filed on 29/04/2013. It is purely the casual approach of the assessee or it can be said that it was conscious decision of the assessee to not to file appeal during the period and later on as advised by another counsel again a conscious decision was taken and appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HHC of the Act on DEPB benefits. 2.3. Against the order of the ld. First Appellate Authority, the assessee filed appeal on 25/05/2012, which resulted into delay of 1625 days. The assessee relied upon the observation of the Hon ble Apex Court in the case 167 ITR 471(SC) Collector, land Acquisition vs Katiji. We find that the Hon ble Apex Court held as under:- When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in injustice being done because of a nondeliberate delay. The assessee also placed reliance upon the following observations of the Apex Court in the case of L. Balkrishanan. Vs. M. Krishnamurthy (1998) 7 SCC 123. The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3/12/2007 and the order was received by the representative of the assessee, who kept the order in the drawer and thereafter the assessee met with an accident and could not attend the office. The appeal was filed by the assessee on 25/05/2012, which resulted into delay of 1625 days. In the application of the assessee (in para-3), it has been mentioned that the order of the ld. First Appellate Authority was received by the office assistant, whereas, in the affidavit, the order was claimed to be received by the peon of the firm, therefore, the claim of the assessee is itself contradictory. Further, the assessee met with an accident on 30/07/2010, whereas, the order of the ld. First Appellate Authority is dated 13/12/2007, thus, the claim of the assessee that he could not file before the Tribunal, due to accident is merely for argument sake and the assessee was having sufficient time to file the appeal. It is also noted that the assessee was attending other appeals and only when the recovery notice was sent to the assessee by the Department, the assessee took a decision to file the appeal. It is also noted that even before the ld. Commissioner of Income Tax (Appeals) as well as before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned about non-deliberate delay. Thus, in our humble opinion, the cases relied by the assessee cannot come to the rescue of the assessee, because the assessee has not adduced any evidence/reason, substantiating that the delay was caused due to the reasons which were beyond his/its control and at the same time, the reasons were good and sufficeint , rather, it is a clear cut case of conscious decision. Even, the Hon ble Apex Court in Vedabai alias Vaijayanatabai Baburao vs Shantarma Bavurao Patil reported in (2002) 253 ITR 798 (SC) made a distinction in delay and inordinate delay observed (page 799) as under:- In exercising discretion u/s 5 of the limitation Act, the Court should adopt a pragmatic approach. A distinction must be made between a case, where the delay is inordinate and a case where the delay is of a few days. Whereas, in the former case, the consideration of prejudice to the other side will be a relevant factor, so the case calls for more cautious approach . In Brij Inder Singh vs Kashiram (AIR) 1917 PC 156 observed that true guide for a Court to exercise the discretion u/s 5 of the limitation Act is whether the appellant acted with reasonable diligen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but questions of fact since it was a matter of discretion for the Tribunal to condone delay for sufficient cause on the facts and circumstances of each case. The consistent view is that such question would be a question of fact simpliciter and would not be covered under the provisions of section 256 of the Act unless such exercise of discretion or conclusion arrived at was perverse or so illogical that no reasonable person could come to such a conclusion. The authorities have exercised their discretion and we find nothing perverse in the impugned orders. Specific reasons have been given in the order which are not only logical but even reflect the conduct of the appellant before the authorities in not producing the record in spite of seeking time. The authorities which are exercising quasi-judicial powers in discharge of their statutory functions, inevitably have to be vested with some element of discretion in exercise of such powers. Merely because another view was possible or permissible on the same facts and circumstances, per se would not make such controversy a question of law . So far as such decision of the authority is in conformity to the principle of law and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee, therefore, on this issue, we are not agreeing with the admission of this appeal, thus, the delay is not condoned, therefore, the appeal is dismissed. Finally, the appeal of the assessee is dismissed as not admitted. 2.7. We note that in the aforesaid order, the Bench has discussed various judicial pronouncements, along with the provisions of limitation Act. However, in the present appeal, before us, the assessee neither produced any evidence establishing that the order of the First Appellate Authority was in fact received by the tax consultant and further it was not communicated to the assessee, more specifically when the assessee was duly contesting the penalty proceedings, which were offshoot of the same quantum proceedings. In such a situation, the cases relied upon by the assessee may not of much help, because exercising the benefit of such judicial decisions, the assessee has to explain its bona fide reasons of not filing the appeal within the stipulated period. Thus, the benefit of such cases may not be extended ot the assessee. We are conscious of the fact that technicalities should not come in the way of substantial cause of justice but in cases, where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver the matter and for the reasons aforestated, we do not find any error of jurisdiction or otherwise in the impugned order. We are constrained to hold that the view of the Tribunal in declining the reference to this court is fully justified and thus, we decline to issue any direction to the Income-tax Appellate Tribunal, Amritsar, to state and refer the aforesaid question, as question of law, to this court in exercise of its power under section 256 of the Act. With the above observations, this petition is dismissed. Our view is fortified by the decision from Hon ble Punjab Haryana High Court in the case of CIT vs Ram Mohan Kabra (2002) 257 ITR 773 (P H). So far as, the decision from Hon ble Apex Court in the case of Improvement Trust Ludhiana vs Ujagar Singh Ors. (Civil Appeal No.2395 and 2397 of 2008) is concerned, we note that the facts are clearly distinguishable and there was delay of only two months and few days. In the present appeal, the wilful negligence is established, therefore, the huge delay cannot be condoned, consequently, the appeal of the assessee is dismissed as not admitted. Finally, the appeal of the assessee is dismissed. This Order was pronounc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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