CONDONATION OF DELAY : Supreme Court condoned delay of 1754 days for reason that appellants took steps to file appeal before High Court, as soon as came to know of order of Tribunal and had no earlier knowledge of order - this fact was not refuted by respondent/ Revenue.

[CA DEV KUMAR KOTHARI]

2019 (11) TMI 940 - SUPREME COURT  -SENIOR BHOSALE ESTATE (HUF) VERSUS THE ASSISTANT COMMISSIONER OF INCOME TAX CIVIL APPEAL NOS.6671-6676 OF 2010, 6677-6690 OF 2010  Dated: - 07 November 2019

Related judgment of Bombay High Court:

2009 (2) TMI 894 - BOMBAY HIGH COURT  SENIOR BHOSALE ESTATE (HUF) VERSUS ASSISTANT COMMISSIONER OF INCOME TAX

Civil Application No. 7637- 7642/2008, Income Tax Appeal St.No.16191/2008, Income Tax Appeal St.No.16193/08, Income Tax Appeal St. No.16195/08, Income Tax Appeal St.No. 16197/08, Income Tax Appeal St.No.16199/08, Income Tax Appeal St. No.16201/08  Dated: - 13 February 2009

Facts of case:

At relevant time, the Court of Wards was looking after assessment and appeal proceedings of appellants who is HUF.

Right from the assessment proceedings till passing of the order by Tribunal, the Court of Wards appointed its own counsel for the purpose of attending the proceedings before the authorities under the Income Tax Act.

Officer of Court of wards as well as the Advocate who represented the case on behalf of Court of Wards did not file appeal against order of Tribunal and also did not inform about order of Tribunal to appellants.

Pursuant to order of Tribunal huge demands crystalized. Competent authority issued auction notice in June 2008 and then only appellant came to know about huge demands.

The appellant(s) before High Court  had asserted that they had no knowledge about passing of order of Tribunal  dated 29.12.2003, until they were confronted with the auction notices in June 2008 issued by the competent authority. When they got copy of order in July 2008 and took steps for filing of appeal with petition for condonation of delay.

Before High Court it was argued that the authorities (Tribunal and others) were not required to serve order on appellants, because before Tribunal Court of Wards was appellant. Appellant before High Court, ought to have contacted Court of Wards (and other authorities)  to enquiry about proceedings as the appellants before High Court (HUF) was aware of control of Court of Wards.

High Court did not allow condonation of delay and therefore also dismissed appeals vide order dated 13022009. The observations and order of High Court are reproduced below with highlights added by author:

               9. Having heard the learned counsel for the parties and having perused the record we are of the considered opinion that the applications deserve to be dismissed. No doubt the Court of Wards, Nagpur was managing the properties of the appellant. However, the appellant was expected to contact the officer in-charge of the Court of Wards, Nagpur to find out about pending proceedings under the Income Tax Act which appears not to have been done by the appellant. No doubt the term “sufficient cause” has to be liberally construed as held by the Apex Court in Collector, Land Acquisition's case (supra) but fact remains that the facts on record clearly discloses inaction on the part of the appellant in pursuing the proceedings before the authorities under the Income Tax Act. Having regard to the period of delay and on account of inaction on the part of the appellant we find that these are not the fit cases in which inordinate delay of 1754 days in filing appeals deserves to be condoned. We are, therefore, unable to accept the submission of Mr. Bhattad that considering the facts and circumstances of the case the limitation should begin to run from the date of knowledge i.e. from June, 2008.

10. In view of the above discussion, we find no merit in these applications. Accordingly, all the applications are dismissed.

In view of the dismissal of the civil applications for condonation of delay in filing appeals, the appeals are dismissed.

The Supreme Court:

Observations and order of the Supreme Court are reproduced below with highlights added by author:

  The appellant(s) had asserted that they had no knowledge about passing of order dated 29.12.2003, until they were confronted with the auction notices in June 2008 issued by the competent authority.

Soon thereafter, the appellant(s) filed appeal(s) accompanied by the subject application(s) on 19.07.2008.

Notably, the respondent(s) did not expressly refute the stand taken by the appellant(s) - that they had no knowledge about passing of order dated 29.12.2003 until June, 2008.

 Unless that fact was to be refuted, the question of disbelieving the stand taken by the appellant(s) on affidavit, cannot arise and for which reason, the High Court should have shown indulgence to the appellant(s) by condoning the delay in filing the concerned appeal(s). This aspect has been glossed over by the High Court.

Accordingly, these appeals are allowed. We set aside the impugned order of the High Court and relegate the parties before the High Court, by allowing the civil application(s) filed by the appellant(s) for condonation of delay in filing the concerned appeal.

As a result, the concerned appeal(s) shall stand restored to the file of the High Court and be proceeded in accordance with law.

Un quote:

Fact of no service and no knowledge of order of tribunal until June 2008 was affirmed by appellants on affidavit.

This fact was not refuted by respondent.

Unless such fact is refuted, it has to be accepted.

Accordingly the Supreme Court condoned delay in filing of appeal before High Court and restored appeals to High Court to hear on merit. 

(per author: in fact respondents have stated that they were not required to serve order on appellant, that means that no order was served or conveyed to appellants by Tribunal ( because appellant at that time was the Court of Wards, Income-tax Department ws not required to serve a copy,  the officer of Court of Wards was not duty bound to convey order of Tribunal, even  the Counsel appointed by the Court of Wards did not inform the beneficiaries because he was appointed by the Court of Wards and not by the appellants before the high Court) Therefore, it is proved that there was no service or communication of order of Tribunal to the assesse / appellants before the High Court.

 Courts must act in a manner that justice is rendered and is not denied on technical grounds particularly when it was almost impossible for appellant to file appeal in time.