TMI Blog2023 (8) TMI 521X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the dismissal of [ 2016 (10) TMI 1264 - ITAT CHENNAI] as repetitive, is incorrect and untrue for the reasons setout at paragraphs 5 to 7 of the affidavit filed in support of the Miscellaneous Petition, filed before the ITAT to reopen assessment would clearly reveal that the petitioner realised the error and after taking steps to redress the error/grievance by filing a miscellaneous petition before the Tribunal to restore, did not pursue it any further on its rejection. Having found that the reasons adduced are untrue and lacking bonafide we do not intend to exercise our discretion to condone the delay for it is trite law that while examining whether there was sufficient cause for the delay, the Courts would consider if the petitioner had been diligent and acted bonafide. We find that there is an inordinate delay of 2139 days and the reasons adduced are not convincing rather show that the petitioner was negligent, lethargic and casual in availing the remedy of appeal. More importantly, we are not convinced with the bonafide of the petitioner who had raised grounds which apart from being untrue, are mutually destructive and thus unacceptable. Yet another reason which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to know that the Tribunal erred in dismissing the appeal in ITA 687/MDS/2015 as being repetitive, only on receipt of the order of Income Tax Appellate Tribunal (in short ITAT ) dated 12.08.2022, involving the same issue for other years. ii) That the officer assigned with the litigation work while forwarding the common order dated 07.10.2016 had inadvertendly left out I.T.A.No.687/Mds/2015 misunderstanding it to be repetitive appeal, while challenging other orders in I.T.A.Nos.1039/Mds/2014,2108/Mds/2012 and 884/Mds/2015. Thereafter, the petitioner faced severe financial crisis which led to proceedings being initiated under Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as IBC ) before National Company Law Tribunal (hereinafter referred to as NCLT ) which was carried by way of appeal to the Hon'ble Supreme Court and the petitioner thus lost attention of the fact that ITA 687/MDS/2015 also needs to be challenged. That apart, it was submitted that a number of employees had left the petitioner organisation and the petitioner was thus unable to follow the case. 5. Before we proceed to deal with the reasons stated in support of this petition to condone the del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al clubbed all the appeals filed by the petitioner / revenue as well as the cross objections filed by the petitioner. The following table may be useful in this regard: Assessment Year ITA No. Assessee / Department 2008-09 IT 1390/CHNY-2016 A IT 1417/CHNY-2016 D IT 1391/CHNY-2016 (Penalty) A IT 1421/CHNY-2016 (Penalty) D 2009-10 IT 1040/CHNY-2014 A IT 1075/CHNY-2014 D IT 51/CHNY-2014 A CO 2010-11 IT 687/2015 A IT 663/CHNY-2015 D 7. All the above appeals / cross objections were heard together and were disposed of, vide common order dated 07.10.2016. The Tribunal found that the claim of the assessee/ petitioner under Section 14A of the IT Act was untenable, while the Tribunal also examined the claim made by the assessee in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Supreme Court, however, at Paragraph 14 of the affidavit extracted supra, it is stated that the petitioner realized that the dismissal of the appeal in ITA No.687/Mds/2015 as being repetitive, was incorrect only upon receipt of the order dated 12.08.2022. Now, if the second reason is to be taken to reflect the true state of affairs, the reason of inadvertence and insolvency proceedings being the reason for the delay would fail. The question of inadvertence or being occupied with resolving the financial crisis and the resultant Insolvency Proceedings would not arise, if the petitioner was unaware until 12.08.2022 of the error committed by the Tribunal in dismissing ITA No.687/Mds/2015 on the ground of being a repetitive appeal. 10. We also find that the attempt to suggest that the delay is only in view of the fact that the petitioner came to know that the subject appeal i.e., ITA No.687/Mds/2015 is not repetitive, is again factually incorrect inasmuch as the petitioner had on receipt of the impugned order dated 07.10.2016 filed a miscellenous petition as early as on 08.03.2017 wherein, the order disposing/dismissing ITA No.687/Mds/2015 was sought to be restored. The following p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntrue for the reasons setout at paragraphs 5 to 7 of the affidavit filed in support of the Miscellaneous Petition, filed before the ITAT to reopen ITA No.687/Mds/2015 dated 07.10.2016 would clearly reveal that the petitioner realised the error and after taking steps to redress the error/grievance by filing a miscellaneous petition before the Tribunal to restore, did not pursue it any further on its rejection. 12. Having found that the reasons adduced are untrue and lacking bonafide we do not intend to exercise our discretion to condone the delay for it is trite law that while examining whether there was sufficient cause for the delay, the Courts would consider if the petitioner had been diligent and acted bonafide. We find that there is an inordinate delay of 2139 days and the reasons adduced are not convincing rather show that the petitioner was negligent, lethargic and casual in availing the remedy of appeal. More importantly, we are not convinced with the bonafide of the petitioner who had raised grounds which apart from being untrue, are mutually destructive and thus unacceptable. 13. Before we part, we intend to refer to the following decisions which lay down the guide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature. 14. Therefore, we are of the considered opinion that the High Court did not commit any mistake in dismissing the delay condonation application of the present appellant. 14. Yet another reason which would prompt us to observe that the miscellaneous petition lacks bonafide, apart from the fact that the reasons set out in the affidavit do not convince us, is that the present miscellaneous petition is apparently filed with a view to take advantage o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
