2016 (5) TMI 1345 - HC - Income Tax

Condonation of delay - Held that - The petitioner made a conscious choice of not preferring an appeal and accepting the order which is now sought to be challenged. When the petitioner chose not to prefer an appeal at the appropriate time he cannot be allowed to file an appeal after expiry of more than 1500 days simply because he is now advised otherwise. It is not a case where the petitioner was prevented from presenting an appeal within the period of limitation. It is a case where the petitioner chose not to challenge the order within the prescribed period of limitation. Therefore we are not inclined to admit the appeal after such a long delay.

Summary

Issues:
Delay in filing appeal, Condonation of delay, Legal advice, Prescribed period of limitation, Conversion of profit/gain, Capital Gain to Business Income, Tax implication, Conscious choice of not appealing, Challenge to order, Prevention from presenting appeal, Opposing condonation of delay, Citation of relevant case law.

The judgment by the High Court of Calcutta involved an appeal against a decision by the Income-tax Appellate Tribunal, "B" Bench, Kolkata, with an application for condonation of a significant delay of 1517 days. The petitioner claimed that the delay was due to advice received from their advocate, who deemed the tax implication of approximately Rs. 89,000 not worth appealing. The court noted that the petitioner consciously chose not to appeal within the prescribed period, and now seeking to challenge the order after an extensive delay is not permissible merely based on changed advice. The court emphasized that the petitioner was not prevented from filing within the limitation period but made a deliberate decision not to challenge the order initially. Thus, the court declined to admit the appeal due to the prolonged delay.

The learned advocate representing the revenue vehemently opposed the plea for condonation of delay, citing a judgment from the Supreme Court in the case of Office of the Chief Post Master General Vs. Living Media India Ltd. reported in AIR 2012 SC 1506. After considering the arguments from both parties, the court dismissed the application for condonation of delay, subsequently leading to the dismissal of the appeal itself. The court's decision was based on the petitioner's conscious choice not to appeal within the prescribed period and the lack of valid reasons for the significant delay in challenging the order.