TMI Blog2006 (12) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... ng this appeal before the Tribunal. This ground has been directly taken by the assessee in its grounds of appeal. The assessee has also filed an affidavit stating the reasons why there was such a delay in filing the appeal before the Tribunal. 7. Shri Andhyaroojeena, the learned senior advocate appeared along with Shri S.A Kanji, the learned chartered accountant, for the assessee. 8. The learned senior counsel dwelt upon the causes of the delay in greater detail. According to the assessee, the order of the CIT(A) was served on him sometime in February, 1991 and thereafter, the order was handed over to one Shri A.V. Pandit, assessee's tax consultant for preparing papers to file appeal before the Tribunal. It is the case of the assessee that Shri A.V. Pandit did not pursue the matter properly and timely and he did not file any appeal on behalf of the assessee. The fact was known to the assessee only when a prosecution notice was served on him by the Department. As soon as he came to know that Shri A.V. Pandit had not filed the appeal before the Tribunal, he handed over the matter to another chartered accountant Shri S.A. Kanji and within a period of 3 months got the appeal filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years; literally speaking, it is an inordinate delay. But, if the litigant is successful in proving sufficient cause for the delay, even this inordinate period of delay is of no fetter in condoning the delay and admitting the appeal. In this context, the learned senior counsel relied on the decision of Tribunal, Mumbai Bench 'J' in the case of Earth Metal Electricals (P) Ltd. vs. ITO (2005) 4 SOT 484 (Mumbai). He invited our attention more particularly to para 3 of the order which is extracted below: "We have duly considered the rival contentions. The Courts and the quasi judicial bodies are empowered to condone the delay if a litigant satisfied the Court that there were sufficient reasons for availing the remedy after expiry of the limitation. Such reasoning should be to the satisfaction of the Court. The expression 'sufficient cause or reason' as provided in sub-so (5) of s. 253 of the IT Act is used in identical position in the Limitation Act and the CPC. Such expression has also been used in other sections of the IT Act such as ss. 274, 273, etc. The expression 'sufficient cause' within the meaning of s. 5 of the Limitation Act as well as similar other provisions, the ambit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the subject of condonation right from Supreme Court to the Tribunal, where they were rendered in favour of the assessees, the assesses had the intention to file the appeals and proceedings but could not file for sufficient cause. 17. The learned senior Departmental Representative emphasised his expression "willing to file appeal". He explained that all the judicial principles and sympathetic view could be extended to the cause of an assessee, only if at the first instance, the assessee had the intention to file appeal before the Tribunal. 18. In the present case, the order of the CIT(A) was delivered on the assessee on 1st Feb., 1991. The last date to file the appeal before the Tribunal was 2nd April, 1991, but the appeal was actually filed on 16th Feb., 2004, causing a delay of about 13 years. In the affidavit filed along with the appeal memorandum, the assessee has stated that the appellate order was handed over to his erstwhile tax consultant to prepare papers for filing second appeal before the Tribunal but the tax consultant did not perform his duty in a rightful manner. The assessee is putting the blame on his erstwhile tax consultant in not filing the appeal in time. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 86-87 and 1987-88 are similar. If so, the assessee should have filed an appeal for the asst. yr. 1987-88 also. This shows that appeal for the asst. yr. 1986-87 was filed only for the reason of the prosecution notice and the decision to file the appeal for the asst. yr. 1986-87 was first conceived by the assessee only after receipt of the prosecution notice. 22. We heard both sides in detail. There are no disputes on the basic facts of the case. We need not repeat the arguments made out by the rival sides. All those contentions and arguments have been illustrated in the above paras. 23. In the light of the above, we are of the considered opinion that the assessee had no intention to file an appeal before the Tribunal when he received the order of the CIT(A). This is clear from the conduct of the assessee thereafter. He paid the entire disputed tax, paid the penalty amounts, paid the interest also. He closed the matter there. But after 12 years or so, he was served with a prosecution notice. The prosecution was also compounded. But the prosecution notice hurt the assessee a lot. It is at that point of time, the assessee thought of filing a second appeal before the Tribunal. Thus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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