2022 (5) TMI 546 - HC - Income Tax

Condonation of delay - delayed filing of appeal by the Revenue - filing of wrong affidavite by the representative of the assesee - whether the application filed by the appellant/department seeking condonation of delay of 535 days in filing the appeal deserves to be considered and allowed or otherwise? - HELD THAT - The affidavit seeks to cast aspersion on the standing counsel for the appellant/department and the deponent has used the words wholly false, untenable and mala fide. Further the deponent would state that the statements made by the Deputy Commissioner of Customs, who had affirmed the affidavit in support of the application under Section 5 of the Limitation Act is totally corroborated . It should be not corroborated and which mistake has also not been noted by the deponent. Further, he would state that the statement is false, misleading as the incorrect dates have been mentioned in sub-paragraph (k) to subparagraph (m) of paragraph 4 of the condonation of delay petition. Further, the deponent would state that he denies and disputes that the junior standing counsel has prepared the brief by October 10, 2019 and had sent the same for approval. In more than two places, the deponent has used the expression mala fide , sheer mala fide etc. As noted by us, we do not appreciate the tenor, language adopted by the deponent in the affidavit-in-opposition. After noting the same, we expressed to the learned Advocate appearing for the respondent/assessee that we proposed to initiate action against the deponent, Mr. Deepak Kumar Pathre and may also be inclined to impose exemplary costs on him. Learned Advocate appearing for the respondent would submit that on his part, he would be able to advise his client to withdraw the affidavit and also tender apology in an appropriate manner. Accepting the submission of the learned Advocate appearing for the respondent we defer taking any stringent action against the deponent who appears to be a paid employee of the respondent/assessee and, therefore, for the present, we also do not propose to take any action against the respondent/assessee, as well, but we shall await the stand that would be taken by the respondent/assessee and Mr. Deepak Kumar Pathre in the affidavit which they propose to file as submitted by the learned Advocate for the respondent.

Summary

Issues:
1. Condonation of delay in filing an appeal by the appellant/department.
2. Allegations made in the affidavit-in-opposition by the deponent, an accountant working with the respondent/assessee.

Analysis:
1. The High Court of Calcutta considered the issue of condonation of delay of 535 days in filing an appeal by the appellant/department. The court noted that the appellant did not prefer an appeal due to the tax effect for the assessment year 2008-09 being Rs.30,42,105, in accordance with a Circular issued by the Central Board of Direct Taxes (CBDT). The court examined the application seeking condonation of delay and directed the appellant to provide specific instructions regarding any appeal filed against the tribunal's order for the said assessment year. After considering the matter at length, the court adjourned the case for further proceedings.

2. The court also addressed the allegations made in the affidavit-in-opposition by Mr. Deepak Kumar Pathre, an accountant working with the respondent/assessee. The court expressed dissatisfaction with the language and tone used in the affidavit, noting that certain averments were in bad taste. The deponent's statements were found to be derogatory towards the standing counsel for the appellant/department, using terms like "wholly false, untenable, and mala fide." The court highlighted discrepancies in the affidavit, such as incorrect dates mentioned in the petition for condonation of delay. The court indicated its intention to take action against the deponent but decided to defer any stringent measures upon the respondent/assessee's assurance to withdraw the affidavit and tender an apology. The court adjourned the matter, awaiting the submission of a new affidavit from the respondent/assessee and Mr. Deepak Kumar Pathre by the next hearing date on 10th May 2022.