2013 (11) TMI 1433 - HC - Income Tax

Condonation of delay - Held that - The appellant should not suffer on account of the negligence of the Advocate, and has relied upon few cases decided by the Court, where the Advocate s negligence was treated to be sufficient to condone the delay - It is not only a case of negligence by the Advocate, who has admittedly committed professional misconduct, it also includes the negligence of the appellant, who did not enquire about the filing of the appeal for more than 2 and 1/2 years, and decided to file the appeal, when he received notice of appeal filed by the department - The delay in filing the appeal has not been sufficiently explained - Decided against assessee.

Summary

Issues:
Delay in filing appeal under Section 260A of the Income Tax Act, 1961 based on the order of the Income Tax Appellate Tribunal dated 31.8.2009 for the block period ending on 24.4.2003, after search and seizure operations under Section 132 of the I.T. Act and a survey under Section 133A (1) on the assessee's clinic.

The appellant filed an income tax appeal under Section 260A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal dated 31.8.2009 for the block period ending on 24.4.2003. The appeal was reported to be barred by a delay of 2 years and 256 days. The appellant sought condonation of delay, providing an explanation through a supplementary affidavit. The affidavit mentioned that the order was received by a clerk in the advocate's office in October 2009 but was not informed to the appellant due to the clerk leaving the job. The appellant claimed to have discovered the non-filing of the appeal only on 26.9.2012. The court found the explanation unsatisfactory as the appellant should have inquired about the appeal filing status earlier, considering the seriousness of the matter.

The court noted that the appellant's explanation for the delay in filing the appeal was inadequate. The appellant's reliance on the negligence of the advocate was not considered sufficient, as the appellant himself failed to inquire about the appeal for over 2 and 1/2 years. The court highlighted that filing an appeal involves engaging a High Court advocate, paying professional fees, court fees, and preparing necessary documents, which the appellant should have been aware of. The court emphasized that the appellant's lack of action and delay in making inquiries about the appeal were significant contributing factors to the overall delay.

The court rejected the application for condonation of delay, citing insufficient explanation for the delay in filing the income tax appeal. The court emphasized that the negligence of both the advocate and the appellant played a role in the delay. Despite the appellant's argument that the advocate's negligence should not penalize the appellant, the court found the overall delay inexcusable. Consequently, the court dismissed the income tax appeal due to the failure to adequately explain and justify the delay in filing.