9911796707
TMI Blog2017 (3) TMI 1935X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty under Section 271(1)(c) of the Income Tax Act, 1961 (in short 'the Act') was levied. The learned Authorised Representative has submitted that the assessee accepted the addition / disallowance on the condition that no penalty would be levied as the assessee did not want his business effected due to involvement of multiple litigation. Thus the assessee did not challenge the assessment order however subsequently the Assessing Officer levied the penalty under Section 271(1)(c) of the Act. It was advised to the assessee that the assessment order should also be challenged along with the penalty order by filing the appeal. Thus only when the penalty under Section 271(1)(c) of the Act was levied by the Assessing Officer, the assessee was advised to file the appeal. Therefore there is a delay which is neither intentional nor deliberate. The learned Authorised Representative has further submitted that the assessee had a good case on merit and the CIT (Appeals) has deleted the penalty under Section 271(1)(c) of the Act. Therefore there was no deliberate attempt on the part of the assessee to delay the proceedings but it was a bona fide belief that no penalty would be levied und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing the appeal. It is a clear case that the assessee decided not to file the appeal against the assessment order till the penalty under Section 271(1)(c) of the Act was passed Thus the assessee never wanted to challenge the assessment order and therefore there is no reason/cause which has prevented the assessee from filing the appeal before the CIT (Appeals). The only explanation of the assessee is that the assessee consented to the addition made in the assessment order with the condition that the Assessing Officer would not levy any penalty however such a condition cannot be imposed on the assessment authorities and therefore it cannot be taken as a reasonable cause for not filing the appeal before the CIT (Appeals). The Hon'ble Madras High Court in the case of M/s. P.S. Rajeswari Vs. ACIT (supra) while dealing with the issue of condonation of delay has held in paras 41 to 43 as under : " 41. In the present case, the inordinate delay of approximately more than 1100 days calls for a strict approach and the principles or guidelines given by the Supreme Court in the abovesaid decision on the conduct that cannot be favourably considered are clearly attracted to the facts of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants can agitate this issue before an appropriate forum, if legally permissible. At present, we are only concerned with the issue of condonation of delay and this Court, after detailed consideration, finds that the appellants have not shown sufficient cause for condoning the delay. The parameters laid down by the Supreme Court in the above-said decision when not to condone delay gets attracted to the facts of the present case. Therefore, we are not inclined to interfere with the order of the Tribunal." In the case on hand, the approach of the assessee was casual and unprudent as the assessee initially decided not to challenge the assessment order and after lapse of a consideration period of around 4 years, the assessee filed the appeal before the CIT (Appeals). There is no reason or circumstances which were beyond the control of the assessee prevented the assessee from filing the appeal. The Hon'ble Madras High Court again in the case Ingerchand D. Kochar Vs. ACIT (supra) has observed in paras 13 to 19 as under : " 13. Due diligence and caution, are the essential requirements. Due diligence cannot be measured by any absolute standard and it depends on relative facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that it is the duty of the office of the Commissioner of Income Tax (Appeals) to have sent the notices for hearing of the rectification petitions, filed by the appellants/assessees and thus the assessees were waiting, for a considerable period, and thus attributed the cause for delay, this court is not inclined to accept the same, for the reason that as observed earlier that rectification petitions have been filed before an incompetent appellate authority. Even taking for granted that they were filed in the office of the Deputy Commissioner of Income Tax, we are of the considered view that it is for the appellants/assessees to have processed the same. Blaming an authority is always easy. Conduct of the appellants substantiates lethargy and lack of bonafides. On the facts and circumstances of the case, we are also of the considered view, that the appellants, have not pursued the remedy, promptly, with diligence and due care, when they filed such applications. Inaction, is apparent on the face of record. In the light of the above, it cannot be contended that the appellants were wrongly pursuing a remedy, with diligence, care and caution and hence the delay in filing the appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e forward with proper details as regards the date when the papers were returned for refiling, the non-furnishing of satisfactory reasons for not refiling of papers in time and the failure to pay the Court fee at the time of the filing of appeal papers on 06.09.2007, the reasons which prevented the Respondents from not paying the Court fee along with the appeal papers and the failure to furnish the details as to who was their counsel who was previously entrusted with the filing of the appeals cumulatively considered, disclose that there was total lack of bonafides in its approach. It also requires to be stated that in the case on hand, not refiling the appeal papers within the time prescribed and by allowing the delay to the extent of nearly 1727 days, definitely calls for a stringent scrutiny and cannot be accepted as having been explained without proper reasons. As has been laid down by this Court, Courts are required to weigh the scale of balance of justice in respect of both parties and the same principle cannot be given a go-by under the guise of liberal approach even if it pertains to refiling. The filing of an application for condoning the delay of 1727 days in the matter of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay, and in such circumstances of the case, he cannot be heard to plead that substantial justice deserved to be preferred as against technical considerations. We are of the view that the question of limitation is not merely a technical consideration. Rules of limitation are based on principles of sound public policy and principles of equity. It is a litigant liable to have a Damocles' sword hanging over his head indefinitely for a period to be determined at the whims and fancies of the opponent?' 19. In the light of our discussion, and principles of law laid down by the Hon'ble Supreme Court in H. Dohil Constructions Co. (P.) Ltd. (supra), we are not inclined to entertain the appeals. Substantial question of law raised by the appellants, is answered against the appellants/assessees and in favour of the respondent." In view of the above facts and circumstances of the case, when the assessee was not prevented by any circumstances or reasons which were beyond the control of the assessee to file the appeal then the reason explained by the assessee for such an inordinate delay cannot be considered as prudent or bona fide or reasonable cause for not filing the appeal. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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