2024 (8) TMI 827 - HC - Income Tax

Condonation of delay before High Court - delay in filing an application for special leave to appeal - Applicant is the Assistant Commissioner of Income Tax, preferred present application for condonation of delay of 480 days in filing leave to appeal thereby challenging the order passed by the learned Magistrate at Vasco in dismissing the complaint in default and acquitting the Applicant/Accused. Complaint was lodged before the learned Magistrate for the offence punishable u/s 277 and 277A of the Income Tax Act against the Respondent/Accused - matter was posted for hearing arguments and order was passed by Magistrate dismissing the said complaint and acquitting the Accused since neither the Complainant nor Advocate for the Complainant appeared before the said Court. As submitted Applicant was under the bona fide belief that the remedy against impugned order was before the Sessions Court by filing a revision - Effect of filing the proceedings before the wrong Forum - HELD THAT - The explanation given in the application would clearly go to show that the revision was filed with a bona fide belief that the same is maintainable. Secondly, when the objections were raised, the Special Public Prosecutor intimated the Department and thereafter the documents were collected and the draft of the appeal along with delay application were prepared. Thus there is sufficient cause disclosed by the Applicant in approaching this Court beyond the period of limitation. Department would not be benefited by filing the proceedings before the wrong Forum deliberately. It is admitted fact that the complaint filed by the complainant was rejected only on the ground that the Applicant along with Counsel unable to remain present. The complaint was not decided on merits. Thirdly, action was taken when the Respondent raised objections to the tenability of the revision and by corrective measure, an appeal was filed before this Court even when the revision was pending before the Sessions Court. Such revision was later on withdrawn, which again show bona fides on the part of the Applicant to prosecute the matter before the correct Forum. The contention of the Respondents that from January till March, there is no explanation as to why the documents were not furnished or collected, will have to be answered on the ground that every day's delay cannot be explained. The Department functions on the basis of its officials and some time is expected to be consumed regarding communication as well as handing over all documents. First set of documents were furnished by the Special Public Prosecutor which were available with him. The second set was required about the documents which were presented before the learned Magistrate along with the complaint. Thus a contention of every day's delay, every hour delay, is not required to be explained, however, the sufficient cause must be satisfactorily explained. The Court has to take a pragmatic view in order to do substantial justice. Technicalities and other considerations can not pitted against substantial justice. Second set of decisions referred to by Mr Nankani are basically with regard to powers under Section 14 of the Limited Act. It is not the case of the Applicant that the entire delay was occasioned because the Applicant was bona fidely litigating before the wrong Forum. Admittedly, revision was filed within time and when it is pointed out to the Applicant that the revision is not tenable, suitable action was taken and appeal was filed with the application for condonation of delay. The party is entitled to seek exclusion of time of the proceeding bona fidely filed in a Court having no jurisdiction. It is not the case of the Applicant that they were aware that the revision is not maintainable and that the appeal is required to be filed. The impugned order passed by the Magistrate would clearly go to show that the complaint was dismissed for non-appearance of the complainant and the Standing Counsel for the Department. Such a decision was not on merit but on the default of appearance. Thus, the contention of Applicant that they were under bona fide belief and accordingly advised to file revision cannot be doubted with. The appeal was filed along with the delay application even when the revision was pending and only after filing of the appeal the said revision was withdrawn. The revision was filed within time. Thus, the contention of the Applicant that he is entitled for the exclusion of such time litigating before the wrong Forum needs to be considered. In the present matter, the record shows that the Applicant has diligently prosecuted the matter by filing revision and that too within a period of limitation. Once an objection was taken, the matter was re-examined and accordingly a decision was taken to file an appeal even during the pendency of the revision proceedings. The learned Sessions Court was not called upon by the Respondents to decide on its own jurisdiction or the maintainability of revision. The documents and opinions were furnished and accordingly the appeal was drafted within 2 weeks from the date of receipt of all the records. Immediately on the next date of receipt of the draft of an appeal, it was filed before this Court. This clearly shows the bona fide attempt and the due diligence adopted by the Applicant in prosecuting the matter. Thus, the reasons disclosed in the application and that too on affidavit must be construed as sufficient cause to condone the delay. Application stands allowed. The delay in filing an application for leave to appeal along with a memo of appeal stands condoned.

Summary

Issues Involved:
1. Condonation of delay in filing an application for special leave to appeal.
2. Maintainability of revision under Section 397 CrPC.
3. Applicability of Section 401(4) CrPC.
4. Sufficient cause for delay and bona fide belief.
5. Exclusion of time under Section 14 of the Limitation Act.

Detailed Analysis:

1. Condonation of Delay in Filing an Application for Special Leave to Appeal:
The application for condonation of delay of 480 days in filing leave to appeal was filed by the Assistant Commissioner of Income Tax. The delay was due to the initial belief that a revision was maintainable, which was later found incorrect. The court considered whether the reasons for the delay constituted "sufficient cause" and whether the applicant acted with due diligence and bona fide belief.

2. Maintainability of Revision under Section 397 CrPC:
The applicant initially filed a revision under Section 397 CrPC before the Sessions Court, believing it to be the appropriate remedy. The revision was filed within the limitation period. However, objections were raised by the respondent regarding the maintainability of the revision, asserting that an appeal was the correct remedy. The applicant then sought to file an appeal, leading to the present application for condonation of delay.

3. Applicability of Section 401(4) CrPC:
The respondent argued that Section 401(4) CrPC barred the revision since an appeal was available. The court clarified that Section 401(4) applies to revisions before the High Court and not to those under Section 397 CrPC before the Sessions Court. Thus, the initial revision was not statutorily barred under Section 401(4).

4. Sufficient Cause for Delay and Bona Fide Belief:
The court examined whether the applicant had "sufficient cause" for the delay. The applicant's belief that the revision was maintainable was considered bona fide. The court noted that the applicant acted on legal advice and promptly took corrective measures upon realizing the mistake. The court emphasized that "sufficient cause" should be interpreted pragmatically and not pedantically, especially when public interest and substantial justice are involved.

5. Exclusion of Time under Section 14 of the Limitation Act:
The court considered whether the applicant could benefit from the exclusion of time under Section 14 of the Limitation Act, which allows exclusion of time spent in bona fide litigation in a court without jurisdiction. The court found that the applicant's actions met the criteria for exclusion under Section 14, as the initial revision was pursued with due diligence and good faith.

Conclusion:
The court allowed the application for condonation of delay, finding that the applicant had acted with due diligence and bona fide belief. The delay was attributed to a reasonable mistake and subsequent corrective actions. The court emphasized a pragmatic approach to "sufficient cause" and the importance of substantial justice, especially in cases involving public interest. The delay in filing the application for leave to appeal was thus condoned.