2017 (7) TMI 864 - AT - Income Tax

Petition of the revenue seeking condonation of delay - grounds raised by the DCIT that he was preoccupied in some sensitive matters pending before the Hon ble Supreme Court having substantial revenue implications - Held that - First of all, from a bare perusal of the purported affidavit filed by the Ld. DCIT, it is noted that the same is not in accordance with the provisions of law, in as much as, it suffers from various infirmities which cannot be reckoned as an affidavit at all. An affidavit contains averments of facts which has been deposed to by the deponent who is under oath to correctly state the facts and such an averment on oath is confined to such facts as the deponent is able to prove the facts and must substantiate the grounds stated thereof. Thus, if a person chooses to rely on an affidavit for relying on certain facts, then such an affidavit should clearly express how much is the statement based on the deponent s knowledge and how much is the statement of his belief and the grounds or belief must be stated with sufficient particularity so that the courts can safely act upon the deponent s belief. From the reading of the aforementioned affidavit of para numbers 1 to 6, it can be seen that, there is only narration of facts which are already on record. Another fallacy which is notable in the aforesaid affidavit is that, there is no identification of the deponent by a duly authorised person. The person making an affidavit has to be identified by the Court, or Magistrate, or Officer of court, or a Notary who has been authorised under the Notaries Act ; and at the foot of the affidavit the name and description of the person by whom identification is made as well as time and place of identification has to be categorically mentioned. Here in this case there is a seal of a Notary, Mr. Azad Kumar, Advocate who has simply mentioned attested and date has been marked as 12th April, 2016. There is no identification of the deponent by the notary as to on what basis he has identified the deponent. In any case the reasons given for condonation of delay cannot be held to be sufficient and reasonable cause for condonation of delay because it is too vague and general. A high ranking Government officer discharging public duty is always preoccupied with some important work or other. It does not mean dereliction of other statutory and governmental duties. If ld. DCIT was actually preoccupied in some very important assignment, then he has to clearly specify as to what was the nature of such preoccupation that it was impossible for him to take steps for filing of the Cross Objection in time. Merely mentioning that he was preoccupied with some sensitive case before the Hon ble Supreme Court without specifying the nature of the case and whether during that period he was unable to perform/discharge his other functions/duties, we are unable to accept such kind of extremely vague reasons. - Decided against revenue

Summary

Issues Involved:
1. Non-maintainability of the appeal filed by the assessee.
2. Condonation of delay in filing the Cross Objections by the revenue.
3. Validity of the affidavit submitted by the DCIT for condonation of delay.

Detailed Analysis:

1. Non-maintainability of the Appeal Filed by the Assessee:
The revenue raised a cross objection challenging the maintainability of the appeal filed by the assessee. The department contended that the appeal is not provided by the statute against the order passed by the Assessing Officer under section 144 of the Income Tax Act, pursuant to the directions issued by the Dispute Resolution Panel (DRP). They argued that section 253(1)(d) restricts the assessee's right to appeal only to an assessment order passed under sections 143(3), 147, 153A, and 153C of the Act. Additionally, the department highlighted that while the Commissioner has the right to object to any direction of the DRP under section 253(2A), the assessee does not have the right to appeal against the directions of the DRP as provided to the Commissioner.

2. Condonation of Delay in Filing the Cross Objections by the Revenue:
The Cross Objections filed by the revenue were barred by a delay of 169 days beyond the statutory time limit. The DCIT requested condonation of the delay, citing preoccupation with sensitive cases and ongoing litigation up to the Supreme Court with substantial revenue implications. However, the Tribunal noted that the affidavit provided by the DCIT was not duly attested by a competent authority and lacked specific details about the nature of the preoccupation. The Tribunal emphasized that the affidavit must contain precise statements of fact and the grounds for belief must be stated with sufficient particularity. The affidavit's verification was also found lacking, as it did not disclose the source of information or provide identification of the deponent by an authorized person.

3. Validity of the Affidavit Submitted by the DCIT for Condonation of Delay:
The Tribunal found several infirmities in the affidavit submitted by the DCIT. It was not in accordance with the provisions of law, specifically Order XIX Rule 3(1) of the Civil Procedure Code, which requires affidavits to be confined to facts within the deponent's knowledge and to clearly state the grounds of belief. The affidavit failed to mention the specific nature of the DCIT's involvement in other cases and lacked proper identification and administration of oath, as required under section 139 of the CPC. The Tribunal concluded that the affidavit could not be considered valid and admissible in law.

Conclusion:
The Tribunal dismissed the Cross Objections filed by the revenue due to the delay being inadequately justified and the affidavit not meeting legal standards. They underscored the importance of adhering to procedural requirements and providing specific, substantiated reasons for delays. The Tribunal also highlighted the need for government officers to perform their duties with diligence and avoid vague and general explanations for delays. The appeal filed by the assessee was deemed non-maintainable, and the Cross Objections were dismissed in-limini being barred by limitation. The order was pronounced in the Open Court on 23rd March, 2017.