TMI Blog2016 (9) TMI 1481X X X X Extracts X X X X X X X X Extracts X X X X ..... - 5-9-2016 - Shri D.T. Garasia, JM Shri N.S. Saini, AM For The Appellant : Shri Rajendra Sodani For the Respondent : Shri Rajiv Varshney ORDER This is the appeal preferred by the assessee against the order dated 23.2.2010 of the CIT, Ujjain, passed u/s 263 of the Act. 2. This appeal has been filed after 2000 days of the period of limitation and as such it is barred by limitation. 3. Notice for showing cause for the delay in filing the appeal was sent by the office of the Tribunal to the assessee. The assessee vide his letter dated nil. has stated that by mistake the appellant has filed combined Appeal before the ITAT. It is only mere lack of knowledge of the appellant . The assessee has also filed an affidavit to this effect with the request to condone the delay. The assessee has also made the following written submissions :- That the Appellant has received a Order U/s 263 of the Income Tax Act, the Order was passed on 23/02/12010. By mistake the Appellant has filed combined Appeal before 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strued liberally if a case is made out for condonation of delay. The Provision is to be construed liberally a party should not be deprived with its right of hearing the case on merit. Sir, the Appellant submitted a Affidavit on l9ll0l20l5 for your verification and express all the facts before Your Honour and it is a sufficient cause to delay of Appeal. There is no melafied intension of the Assessee. The Provision of condonation are not in a Penal Nature therefore it is requested that kindly condone the delay of Appeal with Humble request to adopt pragmatic Approach LiberaI view. Prayer The Appellant pray that kindly consider my Humble Request with sympathetically. 1. The Hon'ble Court should adopt Pragmatic Approach. 2. The expression sufficient cause should received Liberal Constitute. 3. It is a genuine Hardship . Sir, the appellant is humbly requested that kindly condone the delay of Appeal and admit the Appeal oblige. 4. On the other hand, the learned DR opposed the said application and strongly submitted that under the Limitation Act, for condonation of delay, each day s delay has to be explained, which the assessee has failed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng aside the abatement as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied. Too technical or pedantic an approach in such cases is not called for. 10. Another Bench of this Court in a recent judgment of Katari Suryanarayana v. Koppisetti Subba Rao, (AIR 2009 SC 2907) again had an occasion to construe the ambit, scope and application of the expression sufficient cause . The application for setting aside the abatement and bringing the legal heirs of the deceased on record was filed in that case after a considerable delay. The explanation rendered regarding the delay of 2381 days in filing the application for condonation of delay and 2601 days in bringing the legal representatives on record was not found to be satisfactory. Declining the application for condonation of delay, the Court, while discussing the case of Perumon Bhagvathy Devaswom v. Bhargavi Amma (2008) 8 SCC 321 in its para 9 held as under: 11. The words sufficient cause for not making the application within the period of limitation should be understood and applied in a reasonable, pragmatic, practical and liberal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the concerned party. The purpose of introducing liberal construction normally is to introduce the concept of reasonableness as it is understood in its general connotation. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right, as accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, ILR 13 Mad 269. It is however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; 14. In the case of Union of India v. Tata Yodogawa Ltd., 1988 (38) Excise Law Times 739 (SC), this Court while granting some latitude to the Government in relation to condonation of delay, still held that there must be some way or attempt to explain the cause for such delay and as there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, to whom want of bona fide is imputable. There can be instances where the Court should condone the delay; equally there would be cases where the Court must exercise its discretion against the applicant for want of any of these ingredients or where it does not reflect sufficient cause as understood in law. [Advanced Law Lexicon, P. Ramanatha Aiyar, 2nd Edition, 1997] The expression sufficient cause implies the presence of legal and adequate reasons. The word sufficient means adequate enough, as much as may be necessary to answer the purpose intended. It embraces no more than that which provides a plentitude which, when done, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the Court, in exercise of its judicial discretion, to treat the delay as an excusable one. These provisions give the Courts enough power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ( iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation. ( iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer s lapses more leniently than applications relating to litigant s lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in re-filing the appeal after rectification of defects. ( v) Want of diligence or inaction can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position ..... X X X X Extracts X X X X X X X X Extracts X X X X
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