2017 (4) TMI 1061 - HC - Income Tax

Condonation of delay - Held that - The reasons indicated in the affidavit in support do not inspire confidence. The affidavit is silent about the Advocate to whom the papers were given for preparing to draft the Memo of Appeal. Further, the erstwhile CFO has left the Company in February, 2016 and the affidavit states that the former CFO who left the Company in February, 2016 was somehow under the impression since the amount under dispute had already been deposited that there is no urgency in filing the appeal. The basis of the former CFO s understanding / impression is not supported by any statement / evidence of the state of mind of the former CFO. The present affidavit filed by the Director claims that the present CFO realised that all the appeals have not been filed while reviewing pending Income Tax matters in June, 2016 However, he has also not filed any affidavit in support of the appeal. Moreover, according to the affidavit in support, the draft memo of appeal was already prepared in June, 2015 then why the delay of almost three months in filing the appeal. There is no explanation given for delay in filing the appeal of almost over three months from the discovery / knowledge of the fact that appeals had remained to be filed. No reasons for this delay is even attempted to be explained. It appears on the reading of the affidavit that the applicant assessee had filed these appeals on review of its earlier decision to accept the Common Order of the Tribunal dated 20th February, 2015 relating to Assessment Years 2003-04, 2005-06, 2007-08, 2008-09 and 2009-10. In the above view, we see no reason to condone the delay of 484 days in filing the accompanying appeals in respect of each of the Notices of Motion.

Summary

Issues:
Delay in filing appeals from the Common Order dated 20th February, 2015 passed by the Income Tax Appellate Tribunal for Assessment Years 2003-04, 2005-06, 2007-08, 2008-09, and 2009-10.

Analysis:
1. The applicant sought condonation of a 484-day delay in filing five appeals to the Bombay High Court from the Tribunal's order. The impugned order was received on 1st May, 2015, with the last filing date being 29th August, 2015.

2. The reason for the delay in filing the appeals was claimed to be identical for all five appeals due to the identical fact situation.

3. The affidavit stated that the delay was due to the former CFO's impression that since the disputed amount was deposited under protest, there was no urgency in filing the appeal. The present CFO discovered the oversight in June 2016, leading to the filing of appeals in September 2016.

4. The Court found the reasons provided in the affidavit to be lacking. It noted the absence of details about the Advocate who prepared the draft memo and the lack of evidence supporting the former CFO's understanding. The Court also questioned the delay in filing the appeal despite the memo being prepared in June 2015.

5. The Court highlighted the lack of explanation for the delay of over three months from the discovery that appeals were pending. It observed that the applicant seemed to file the appeals upon reviewing its earlier decision to accept the Tribunal's order.

6. Ultimately, the Court declined to condone the 484-day delay in filing the appeals, leading to the dismissal of all five notices of motion without any order as to costs.