TMI Blog2017 (5) TMI 1515X X X X Extracts X X X X X X X X Extracts X X X X ..... along with defect memo was issued. On 28/09/2016, the appeal was adjourned to 07/11/2016 at the request of the assessee vide letter dated 28/09/2016. Again on 07/11/2016, the hearing was adjourned at the request of the assessee. On 09/03/2017, the assessee did not appear and thus, last opportunity was provided to the assessee. A registered notice of hearing was issued on 07/04/2017 for hearing for today i.e. 04/05/2017, which was duly received by the assessee as is evident from acknowledgment returned by the postal authorities. In spite of last opportunity provided to the assessee, neither presented itself nor moved any adjournment petition. It seems that the assessee is not interested to pursue its appeal, therefore, we have no option but to proceed ex-parte, qua the assessee, and tend to dispose of this appeal on the basis of material available on record. 2.1. At the outset, the Ld. CIT-DR pointed out that the appeal is time barred by 1382 days, which has not been explained by the assessee. The addition sustained by the Ld. Commissioner of Income Tax (Appeal) was strongly defended. 2.2. We have considered the submissions of Ld. CITDR and perused the material available on r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee declared total income of ₹ 1,03,18,355/- on 24/10/2003 and the assessment order u/s 143(3) of the Income tax Act, 1961 (hereinafter the Act) was passed on 27/02/2006 disallowing the claimed deduction u/s 80HHC of the Act on the export incentives of DEPB. 2.2. The assessee felt aggrieved and filed appeal before the ld. First Appellate Authority on 10/04/2006, wherein, the appeal of the assessee was disposed off on 13/12/2007 granting part relief to the assessee and disallowing the claimed deduction u/s 80HHC 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he particular advocate did not file appeals. But the court can take judicial notice of the difficulty in getting such affidavits . 2.4. In the light of the observations made by the Hon ble Courts, we are expected to analyze the facts and the reasons of delay in filing the appeal before this Tribunal. In the affidavit of the assessee, filed before this Tribunal, we note that even the assessee itself has admitted that the ld. Commissioner of Income Tax (Appeals) disposed off this appeal vide order dated 13/12/2007 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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot come to his rescue. This is exactly the case before us. The law of limitation fixes a life span for such legal remedies for the redressal of a legal injury, if any, suffered by the assessee. However, in the present appeal, there is a clear cut conscious delay of 1625 days, which, in our view, if condoned, under the facts available on record, then there is no need to keep the provision under the limitation Act. Even the Hon ble Apex Court in Collector, Land Acquisition vs Katiji (supra) has clearly mentioned about nondeliberate 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 57 of AIR 1957 SC) : A finding on a question of fact is open to attack under section 66(1) as erroneous in law if there is no evidence to support it or if it is perverse. A Full Bench of the Orissa High Court, in the case of Brajabandhu Nanda v. CIT [1962] 44 ITR 668, considering somewhat similar question, where the appeal was barred by time and reference of the question was declined, held as under (headnote) : That the questions referred were not questions of law 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 produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was wilfully negligent or irresponsible in taking a decision, thus, the huge delay cannot be condoned. We are conscious of the fact that technicalities should not come in the way of substantial cause of justice but in cases, where the delay was beyond the control of the assessee or some genuine difficulties hindered his smooth way. As discussed earlier, it is clear cut case of conscious decision, thus, we find no merit in the self made story of the assessee, 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. 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 cured the defect nor moved any condonation petition for the delay. The approach of the assessee is very casual, therefore, no leniency can be extended to the assessee. The assessee is wilfully negligent or irresponsible, therefore, the huge delay of 1382 days cannot be condoned. We are conscious of the fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the settled cannons of law governing the subject. Having cogitated over 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). In the aforesaid decision of the Tribunal, wherein one of us (Judicial Member) is signatory to the order has discussed various judicial pronouncements/ facts of the case and then reached to a conclusion, therefore, the same are not being repeated here in this order, being matter of record. 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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