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TMI Blog2016 (9) TMI 1481X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the ITAT. It is only mere of lack of knowledge of the Appellant. In the proceedings his father Shri Brijlal Jhamnani was appeared, he was very old man and he was ill and expired on 18/06/2010. The Appeal is filed on I9/10/20l5 against the Order U/S 263 of Income Tax Act before Your Honor which is delay. The Appellant is Humble request you for condone the delay of Appeal and Affidavit is also filed for request of condonation before Your Honour on 19/10/2015 Hon'ble Sir, it is a genuine and sufficient cause for delay and the Appellant is requested you, kindly consider my request lbr delay of condone with pragmatic and liberal approach with sympathetically. The Appellant rely on the following Judgments 1) Veda Bai Allas Vaijayanati Bai Baburao Patil and Others reporled in 2002 (173) CTR (SC) 300 In that Judgment Hon'ble Supreme Court has held that in exercise discretion U/s 5 of the limitation Act. The Court should Adopt Pragmatic approach and expression sufficient cause should received liberal constitute delay condone. 2) In case of Sujata Verma V/s Income Tax Officer reported in (2012) 20ITJ 5 (IT Tribunal -Indore) In that Judgment the Hon'ble IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Act, for condonation of delay, each day's delay has to be explained, which the assessee has failed to do and as such the appeal filed by the assessee deserves summary dismissal in view of Limitation Act. 5. We have heard both the sides. The Hon'ble Supreme Court in a recent decision, in Balwant Singh v. Jagdish Singh & Ors., had the occasion to deal with the concept of 'condonation of delay' and 'sufficient cause' as contained in the Limitation Act. The Supreme Court, while dealing with various authorities on the subject, has rulled out principles, which are reproduced hereunder :- "9. In the case of Mithailal Dalsangar Singh (supra), a Bench of this Court had occasion to deal with the provisions of Order 22 Rule 9, CPC and while enunciating the principles controlling the application of and exercising of discretion under these provisions, the Court reiterated the principle that the abatement is automatic and not even a specific order is required to be passed by the Court in that behalf. It would be useful to reproduce paragraph 8 of the said judgment which has a bearing on the matter in controversy before us: "8. Inasmuch as the abatement results in deni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words 'sufficient cause' in Section 5 of Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant." 11. The Learned Counsel appearing for the applicant, while relying upon the cases of Ram Sumiran, Mithailal Dalsangar Singh and Ganeshprasad Badrinarayan Lahoti (supra), contended that the Court should adopt a very liberal approach and the delay should be condoned on the mere asking by the applicant. Firstly, none of these cases is of much help to the applicant. Secondly, in the case of Ram Sumiran (supra), the Court has not recorded any reasons or enunciated any principle of law for exercising the discretion. The Court, being satisfied with the facts averred in the application and particularly giving benefit to the applicant on account of illiteracy and ignorance, condoned the delay of six years in filing the application. This judgment can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a valuable right that has accrued to it in law as a result of his acting vigilantly. The application filed by the applicants lack in details. Even the averments made are not correct and ex-facie lack bona fide. The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. If it does not specify any of the enunciated ingredients of judicial pronouncements, then the application should be dismissed. On the other hand, if the application is bona fide and based upon true and plausible explanations, as well as reflect normal behaviour of a common prudent person on the part of the applicant, the Court would normally tilt the judicial discretion in favour of such an applicant. Liberal construction cannot be equated with doing injustice to the other party. In the case of State of Bihar v. Kameshwar Prasad Singh(2000) 9 SCC 94, this Court had taken a liberal approach for condoning the delay in cases of the Government, to do substantial justice. Facts of that case were entirely different as that was the case of fixation of seniority of 400 off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay or attempt to explain the cause for such delay and as there was no whisper to explain what legal problems occurred in filing the Special Leave Petition, the application for condonation of delay was dismissed. Similarly, in the case of Collector of Central Excise, Madras v. A.MD. Bilal & Co., 1999 (108) Excise Law Times 331 (SC), the Supreme Court declined to condone the delay of 502 days in filing the appeal because there was no satisfactory or reasonable explanation rendered for condonation of delay. The provisions of Order 22 Rule 9, CPC has been the subject matter of judicial scrutiny for considerable time now. Sometimes the Courts have taken a view that delay should be condoned with a liberal attitude, while on certain occasions the Courts have taken a stricter view and wherever the explanation was not satisfactory, have dismissed the application for condonation of delay. Thus, it is evident that it is difficult to state any straightjacket formula which can uniformly be applied to all cases without reference to the peculiar facts and circumstances of a given case. It must be kept in mind that whenever a law is enacted by the legislature, it is intended to be enforced in its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an excusable one. These provisions give the Courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting such a law does not stand frustrated. We find it unnecessary to discuss the instances which would fall under either of these classes of cases. The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005] 15. We feel that it would be useful to make a reference to the judgment of this Court in Perumon Bhagvathy Devaswom (supra). In this case, the Court, after discussing a number of judgments of this Court as well as that of the High Courts, enunciated the principles which need to be kept in mind while dealing with applications filed under the provisions of Order 22, CPC along with an application under Section 5, Limitation Act for condonation of delay in filing the application for bringing the legal repres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal. We may also notice here that this judgment had been followed with approval by an equi-bench of this Court in the case of Katari Suryanarayana (supra) 16. Above are the principles which should control the exercise of judicial discretion vested in the Court under these provisions. The explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the Court. In addition to this, the Court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing the legal representatives on record, should be rejected unless sufficient cause is shown for condonation of delay. The larger benches as well as equi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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