The Court may throw a meritorious case for latches if filing is an afterthought.

[Vivek Jalan]

In the case of SHIKSHA FOUNDATION VERSUS DCIT CPC, BANGALORE - 2023 (2) TMI 985 - ITAT AHMEDABAD, The question of law framed is that incase the assessee acts on behalf of the professional advice, can he be held guilty for defiance of any provision of law, particularly latches? It was decided that Incase it can be proved that the delay in filing of the appeal was on the advice of a professional, it would be considered that the delay is not attributable on the negligent/casual approach of the assessee. Further incase on merit the assessee has a strong case to succeed, the delay in filing the appeal by the assessee should be condoned and the issue should be decided on merit.

The Supreme Court has observed in numerous decisions, including RAMLAL, MOTILAL AND CHHOTELAL VERSUS REWA COALFIELDS LTD - 1961 (5) TMI 54 - SUPREME COURT , STATE OF WEST BENGAL VERSUS ADMINISTRATOR, HOWRAH MUNICIPALITY & ORS. - 1971 (12) TMI 106 - SUPREME COURT and BABUTMAL RAICHAND OSWAL VERSUS LAXMIBAI R. TARTE - 1975 (2) TMI 114 - SUPREME COURT, that the State authorities should not raise technical pleas if the citizens have a lawful right and the lawful right is being denied to them merely on technical grounds. The State authorities cannot adopt the attitude which private litigants might adopt. The authorities under the Act are under an obligation to act in accordance with law. Tax can be collected only as provided under the Act. If an assessee, under a mistake, misconception or on not being properly instructed, is over-assessed, the authorities under the Act are required to assist him and ensure that only legitimate taxes due are collected.

Further, one of the propositions of settled legal position is to ensure that a meritorious case is not thrown out on the ground of limitation. Therefore, it is necessary to examine, at least prima facie, whether the assessee has or has not a case on merits.

However, one needs to substantiate that there is a genuine delay and not a made up after thought. In the case of M/S GREATER KAILASH HOSPITALS PVT. LTD. VERSUS ACIT 2 (1) , INDORE (MP). - 2023 (3) TMI 1002 - ITAT INDORE, additional income was admitted during an assessment and after that a consultant explained to the assessee that additional income was offered to tax even though source of amount as advanced was duly explained from the cash as available in the regular books of account of the company and assessee it was advised to file an appeal before the Tribunal at the earliest. The delay of 156 days was explained due to this reason and sought to be condoned. Further, all the four grounds raised in the revised Form No.36 were additional grounds as the same were never agitated before the ld.CIT(A) in Form No.35 and these were sought to be admitted as per the proposition rendered by the Hon’ble Supreme Court in the case of NATIONAL THERMAL POWER COMPANY LIMITED VERSUS COMMISSIONER OF INCOME-TAX - 1996 (12) TMI 7 - SUPREME COURT . In this case the ground were considered inadequate, not a sufficient and plausible cause for the delay of 156 days in filing the appeal before the Tribunal, relying on the case of COLLECTOR, LAND ACQUISITION VERSUS MST. KATIJI AND OTHERS - 1987 (2) TMI 61 - SUPREME COURT, where their Lordships, speaking for the Hon’ble Supreme Court, categorically held that the onus is on the assessee to explain by way of sufficient and plausible cause the delay in filing the appeal.