TMI Blog2019 (11) TMI 508X X X X Extracts X X X X X X X X Extracts X X X X ..... as brought on record by the revenue to show that the assessee was continuing to avail the services of very same counsel even after noticing his lapse. Hence, reason given by the affidavit cannot be considered to be a malafide one. It is well settled proposition that the mistake on the part of the counsel constitutes sufficient cause in the matter relating to condonation of delay. - ITA No.169/Asr/2015 (Assessment year : 2006-07) - - - Dated:- 22-10-2019 - SHRI B.R BASKARAN, ACCOUNTANT MEMBER (THIRD MEMBER) Appellant by: Shri P.N Arora (Adv.) Respondent by: Shri Sandeep Chauhan, CIT (DR) ORDER Per B.R Baskaran, Accountant Member On account of difference of opinion between Hon ble Judicial Member and the Hon ble Accountant Member, the Hon ble President was pleased to nominate me as Third Member in the instant case with a direction to resolve the issue. 2. The difference of opinion has arisen in the matter relating to condoning the delay in filing of appeal by the assessee before the Tribunal. The appeal filed by the assessee was barred by limitation by 571 days. The ave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g a copy of the appellate order passed by Ld CIT(A). The copy of the order was supplied by the office of Ld CIT(A) on 04-03-2015 (after expiry of about one year from the date of application filed by the assessee). Immediately after the receipt of copy of the appellate order on 04-03-2015, the assessee filed appeal before the Tribunal on 31.03.2015. 5. With regard to the petition filed by the assessee praying for condonation of delay, the Learned Accountant Member took the view that the assessee has failed to show that it was prevented by sufficient cause in filing the appeal belatedly. Accordingly the Ld Accountant member held that the delay cannot be condoned and the appeal of the assessee is not liable to be admitted. The Learned Judicial Member, however, took the view that the explanations given by the assessee along with relevant documents clearly demonstrated the bonafide and sufficient cause for nonfiling of appeal within the time limit. Accordingly Learned Judicial member took the view that the delay should be condoned. 6. There was difference of opinion between the members with regard to the matter of framing questions relating to point of di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plained by the assessee for not filing the appeal within the prescribed period of limitation. 8. In view of the difference of opinion between the members in framing questions on the point of difference also, I am constrained to frame the question on the point of difference to bring out the controversy appropriately and to render decision on those question(s). Upon considering the facts of the case, issue before me and the questions proposed by both the members, I am of the view that the following question may be taken up to bring out difference of opinion expressed by the Members:- Whether, in the facts and circumstances of the case, the explanations furnished by the assessee for not filing the appeal within the prescribed period of limitation would constitute sufficient cause or not and accordingly whether the delay in filing the appeal should be condoned or not? 9. The Ld A.R reiterated the submissions made in the petition filed by the assessee requesting the bench to condone the delay. He submitted that the assessee has shown sufficient cause for the delay and further the delay is not intentional. He placed his reliance on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty of the assessee to followup the matter with his counsel. He submitted that the assessee has appointed the counsel and is also aware about the details of hearing attended by the Counsel before Ld CIT(A). Hence, as a prudent businessman, the assessee should have enquired about the results of the appeal. However, the assessee has remained silent, lethargic and has simply put the blame on the earlier counsel, which is also not supported by any material. Accordingly the Ld D.R submitted that there was no sufficient cause for the delay and hence the delay should not be condoned. 11. In the rejoinder, the Ld A.R submitted that, since there was lapse on the part of the earlier counsel in the form of non-communication order and in view of the strained relationship, there was no co-operation from the earlier counsel and hence the assessee could not get a confirmation letter him. Hence the assessee was constrained to change the counsel. Accordingly he submitted that the bonafides of the submissions made in the affidavit should not be doubted with. 12. I heard the parties on this issue. Before proceeding further, I prefer to extract below some of observatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial Land Acquisition Officer, Bangalore (1988)(2 SCC 142), Venkatachaliah, J. (as his Lordship then was), speaking for the Court, has opined thus: The contours of the area of discretion of the courts in the matter of condonation of delays in filing appeals are set out in a number of pronouncements of this Court. See : Ramlal, Motilal and Chhotelal v. Rewa Coalfield Ltd.(1962)(2 SCR 762); Shakuntala Devi Jain v. Kuntal Kumari(1969)(1 SCR 1006); Concord of India Insurance Co. Ltd. V. Nirmala Devi (1979) (3 SCR 694); Lala Mata Din v. A. Narayanan (1970)(2 SCR 90); Collector, Land Acquisition v. Katiji etc. There is, it is true, no general principle saving the party from all mistakes of its counsel. If there is negligence, deliberate or gross inaction or lack of bona fide on the part of the party or its counsel there is no reason why the opposite side should be exposed to a time-barred appeal. Each case will have to be considered on the particularities of its own special facts. However, the expression sufficient cause in Section 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so been opined that generally delays in preferring appeals are required to be condoned in the interest of justice, where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay. 14. Now I shall turn to the facts of the present case. In the affidavit, the main reason cited by the assessee for the delay is that the copy of appellate order was received by the counsel who appeared before the Ld CIT(A), but the counsel never informed the assessee about the disposal of the appeal by Ld CIT(A). It is a fact that the office of Ld CIT(A) served the appellate order to the counsel of the assessee, as the address of the counsel was given in Form No.35 as the address to which notice/order to be served. Once the order was served, it is the duty of the Counsel to inform the assessee about the order received by him. According to the assessee, the Counsel did not inform or forward the copy of appellate order to it. 15. Since the assessee has put blame on the Counsel, it was specifically asked by the bench as to whether the assessee could get a letter from the Counsel in support of the averments made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld affect his reputation. In any case, no material was brought on record by the revenue to show that the assessee was continuing to avail the services of very same counsel even after noticing his lapse. Hence, I am of the view that the reason given by the affidavit cannot be considered to be a malafide one. It is well settled proposition that the mistake on the part of the counsel constitutes sufficient cause in the matter relating to condonation of delay. 17. The assessee has also submitted that it had applied for a copy of order by filing application with the office of Ld CIT(A) on 05-03- 2004 and the same was supplied to the assessee on 04-03-2015. The delay that has occurred in supplying copy of order cannot be attributed to the assessee, since it is beyond the control of the assessee. I notice that the assessee has filed appeal before the Tribunal on 31.3.2005, i.e., immediately after the receipt of copy of order. 18. The issue before me can be looked from another angle. I notice that the Hon ble Accountant member, even though declined to condone the delay, yet he has adjudicated the grounds urged on merits. The Hon ble Judicial Member has also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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