TMI Blog2017 (8) TMI 1660X X X X Extracts X X X X X X X X Extracts X X X X ..... egligence, nor inaction, or want of bona fides can be imputed to the assessee a liberal construction of the provisions has to be made in order to advance substantial justice. Seekers of justice must come with clean hands. In the present case, the reasons advanced by the assessee do not show any good and sufficient reason to condone the delays. The delays are not properly explained by the assessee. There is no reason for condoning such delay in this case. The delay is nothing but negligence and inaction of the assessee which could have been very well avoided by the exercise of due care and attention. Though the assessee has said that the divorce proceedings initiated by her spouse were the reason for delay in filing these appeals, there is no iota of evidence of such proceedings before any Court. Hence, there exists no sufficient or good reason for condoning inordinate delays of more than 744 days in filing appeal before us. Accordingly, these appeals are dismissed as barred by limitation. We accordingly decline to condone the delay of 744 days, and dismiss these six appeals of the assessee as barred by limitation. - I.T.A. Nos. 1106, 1107, 1108, 1109, 1110 & 1111/Mds./2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n abdicating his duty to act judiciously and judicially, when particulars were available. 7. The learned CIT (A) erred in confirming the addition made u/s 234A.,234B 234C of the Income tax Act 3. There was a delay of 744 days in filing all these six appeals before this Tribunal. The ld.A.R drew my attention to the condonation petition/Affidavit filed by the assessee, which reads as under:- AFFIDAVIT Appellant: Rajalakshmi Vettrivel I state that the delay in filing the appeal is neither wilful nor deliberate but due to divorce proceedings initiated by his spouse and the petitioner was under severe mental pain and agony. The petitioner was busy with the said court proceedings and hence the delay. The appellant relies on the following principles deduced from the case law justification for condonation of delay. The relevant principles, from selected cases, are summarised as follows: The appellant submit and invite attention to Article 39A of the Constitution of India Mandates that Justice should not be denied on account of disability of the Petitioner. I also invite the philosophy of the Government as adumbrated in its circular by way of instructions which is rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. ----- 1. Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Page No: 0473 3. Every day s delay must be explained does not mean that a pedantic approach should be made. Why not every hour s delay, every second s delay? The doctrine must be applied in a rational, common sense and pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, the cause of substantial justic e deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned delibe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justifiably liberal approach in matters instituted in this court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that: 1. Ordinarily, a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. 1. Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Page No: 0473 3. Every day s delay must be explained does not mean that a pedantic approach should be made. Why not every hour s delay, every second s delay? The doctrine must be applied in a rational, common sense and pragmatic manner. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the legal system with nick names, such as Wednesbury s principle, Wednesbury s reasonableness, Wednesbury s unreasonableness, Wednesbury s grounds, Wednesbury s case, Wednesbury s sense - a current legal jargon. Thus, Wednesbury s principle is now a common and convenient label indicating special standard of reasonableness or special standard of unreasonableness, which has now become a criterion for judicial review of administrative discretion. The test is fundamentally based on rationality! irrationality. Virtually, the rationality in the positive sense or irrationality in the negative sense are tested in the light of intelligible reasons. But the question then is whether such intelligible reasons measure up to the legal standard of reasonableness. Of course, if such reasons are frivolous or fictitious, they are liable to be rejected as unreasonable or irrational. In other words, the relevancy of the reasons shall be the bed-rock of the consideration. Once the relevancy of the reason is satisfied, such reason shall stand the test of reasonableness. Alternatively, if the reasons do not stand the test of relevancy, as the same is frivolous, fictitious and extraneous, then such rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cannot be extrapolated and treated as being good cause for the whole of the period of the delay in its entirety. The apex court in Collector v. P. Mangamma [2003] 4 SCC 488, while interpreting the word reasonable has observed as follows (headnote): It would be hard to give an exact definition of the word reasonable . Reason varies in its conclusions according to the idiosyncrasy of the individual and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic stands now like the jingling of a child s toy. But mankind must be satisfied with the reasonableness within reach ; and in cases not covered by authority, the decision of the judge usually determines what is reasonable in each particular case; but frequently reasonableness, belongs to the knowledge of the law, and therefore, to be decided by the courts . An attempt to give a specific meaning to the word reasonable is trying to count what is not a number and measure what is not space. It means prima facie in law reasonable in regard to those circumstances of which the actor, called upon to act reasonably, knows or ought to know. It is impossible a priori to state what ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee might have omitted to claim refund or relief. Reliance placed 9n-NavnitLal C. Javeri vs. K.K. Sen, AAC (1965) 56 ITR 198 (SC) : TC 69R.265 applied The following circular of the Central Board of Revenue issued in June, 1955. The circular is reproduced at page 532 of volume I of Chaturvedi and Pithisaria s Income- tax Law, Second Edn., and the circular is as follows: Officers of the Department must not take advantage of ignorance of an assessee as to his rights, It is one of their duties to assist a taxpayer in every reasonable way, particularly in the matter of claiming and securing reliefs and in this regard the officers should take the initiative in guiding a taxpayer where proceedings or other particulars before them indicate that some refund or relief is due to him. This attitude would, in the long run, benefit the Department, for it would inspire confidence in him that he may be sure of getting a square deal from the Department. Although, therefore, the responsibility for claiming refunds and reliefs rests with the assessees on whom it is imposed by law, officers should- (a) draw their attention to any refunds or reliefs to which they appear to be clearly en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee s husband was an individual carrying on profession as astrologer having income from business/profession. Notices u/s. 153C of the act was issued. In response, the assessee filed copies of returns of income originally filed. Notice u/s. 142(1) along with questionnaire was issued on 30.09.2009 for filing of certain details and explanation regarding some irregularities. As the appellant could not be contacted, the same was handed over to the AR. Since the efforts to contact the appellant proved futile, a final show cause notice dated 12.11.2009 was issued and the same was served on the appellant through AR. There was no compliance on the part of the assessee in the way of submission of any documents or explanations of the issues raised. Against this background, assessment was completed u/s. 153C r.w.s. 144 as under: A.Y Date of Order Assessed Income Addition/disallowance on account of 2002-03 14.12.2009 ₹ 6,83,425 Fresh capital introduced of ₹ 62,150, unsecured loans from Pandian of ₹ 1,00,000, low drawings of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d fast rule can be laid down in this regard. The Court has to exercise the discretion on the facts of each case, keeping in mind that in considering the expression sufficient cause , the principle of advancing substantial justice is of prime importance. 7. That being so, the case-law relied before us by the learned counsel for the assessee has no application to the facts of the present case. Further I make it clear that there is no hard and fast rule which can be laid down in the matter of condonation of delay and Courts should adopt a pragmatic approach and discretion on the facts of each case keeping in mind that in considering the expression sufficient cause the principles of advancing substantial justice is of prime importance and the expression sufficient cause should receive a liberal construction. A liberal view ought to be taken in terms of delay of few days. However, when there is inordinate delay, one should be very cautious while condoning the delay. The delay of 744cannot be condoned simply because the assessee s case is hard and calls for sympathy or merely out of benevolence to the party seeking relief. In granting the indulgence and condoning the delay, it m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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