9911796707
TMI Blog2012 (9) TMI 465X X X X Extracts X X X X X X X X Extracts X X X X ..... section 260A of the Act - delay of 290/287 days in preferring the accompanying appeals is hereby condoned - - - - - Dated:- 27-5-2011 - AMITAVA ROY, MERUNO K., JJ. JUDGMENT Amitava Roy J.- 1. The miscellaneous cases have been registered on applications filed under section 5 of the Limitation Act, 1963, (for short hereafter referred to as "the Limitation Act") seeking condonation of delay of 290/287 days in filing the accompanying appeals. These applications, at the first instance, were rejected by the order dated October 28, 2009, of another Division Bench of this court sustaining the objection raised on behalf of the opposite party that the prayer for condonation of delay under section 5 of the Act, 1963, in filing the aforementioned appeals under section 260A of the Income-tax Act, 1961 (for short also referred to as "the Act") was untenable in law, there being no provision therefor. Placing reliance on the decision of the hon'ble apex court, rendered in Commissioner of Customs and Central Excise v. Hongo India (P.) Ltd. [2009] 315 ITR 449 (SC), the applications were rejected considering the then state of section 260A of the Act. 2. The Revenue took the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant documents for filing the appeals as contemplated to the office of the Commissioner of Income-tax, Guwahati-II (for short referred to as "the applicant"), which was received by him on January 11, 2008. The applicant has stated that immediately, thereafter, his office wrote to the standing counsel of the Department on the same date seeking his opinion regarding the advisability of filing an appeal under section 260A of the Act. The advice was sought in this regard vis-a-vis five years of the Tribunal order relating to the assessment years, i.e., 1996-97, 1997-98, 1998-99, 2000-01 and 2002-03. According to the applicant-Revenue, the learned standing counsel, though submitted his opinion January 16, 2008, it was qua the assessment years 2002-03 only. This when detected, the office of the applicant reverted to the standing counsel on January 22, 2008, seeking his opinion for the other assessment years and the latter by his letter dated January 25, 2008, communicated that his earlier opinion be taken to be also for the other assessment years. On receipt of this letter on January 29, 2008, the approval of the Chief Commissioner of Income-tax, Guwahati, was sought for and the same hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, the Revenue is not entitled to the equitable relief as prayed for. 8. Mr. Bhuyan has argued that in the face of the progression of events, as narrated in the application, the applicant can by no means be charged of being deliberately indifferent, negligent or callous and, thus, instrumental for the delay and that as the grounds offered constitute sufficient cause in law, it is a fit case in which the same (delay) ought to be condoned. Underlining the indispensability of official formalities and bureaucratic compulsions as unavoidable impediments in furthering such process at the required levels, the learned standing counsel, the Revenue contended that a liberal approach ought to be adopted by the courts, lest meritorious matters as these be summarily jettisoned at the threshold to the prejudice of greater public interest. In support of his submission, Mr. Bhuyan has placed reliance on the decision in Collector, Land Acquisition v. Mst. Katiji [1987] 167 ITR 471 (SC) and in State of Haryana v. Chandra Mani, AIR 1996 SC 1623. 9. As against this, Dr. Saraf assiduously urged that as would be apparent from the disclosures made in the application, the applicant had been consiste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to benefit by resorting to delay but to the contrary runs a serious risk. It was held in particular in the context of delay vis-a-vis the State that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, filepushing, and passing-on-the-buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve and, thus, certain amount of latitude is not impermissible. Noting that the State represents the collective cause of the community, their Lordships observed that if the appeals brought by the State are lost for such default, which is generally in view of its officers/agencies as well as the encumbered process of pushing the files from table to table, no person is individually affected but public interest is a casualty. 12. The above view was reiterated in State of Haryana v. Chandra Mani, AIR 1996 SC 1623, to propound that the expression "sufficient cause" should, therefore, be considered with pragmatism in justice-oriented approach rather than to warrant explanation for every day's delay. Their Lordships ruled that the factors which are peculiar to and characteristic of the functioning of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y is not its length but the sufficiency of a satisfactory explanation was indicated in clear terms. It was held that the extent and degree of leniency to be shown by a court would depend on the nature of the application and facts and circumstances of the case. 14. In State of Manipur v. All Manipur Regular Post Vacancies Substitute Teacher's Association [1995] 2 GLR 102, the delay involved was about 1 year 11 months and the explanation centered around developments suggesting lack of coordination and consistence in views at different institutional levels ensuing in the late filing of the appeal. A Division Bench of this court on a survey of the authorities laid before it, including the decision in Collector, Land Acquisition (supra), affirmed that in assessing sufficient cause, factors which are peculiar to and characteristic of the functioning of the Government ought not to be excluded from consideration. It was observed that Government decisions are proverbially slow, encumbered as they are by a considerable degree of procedural redtape in the process of their making and thus a certain amount of leeway is permissible. The necessity, however, of proving a sufficient cause was u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion and the grounds offered have to be evaluated to test whether the party in default had been guilty of conscious and deliberate inaction, culpable negligence and inexcusable indifference to the period of limitation mandatorily prescribed by law. 17. Reverting to the facts except for the time consumed by the assessing authority in completing the assessment in 99 cases, which was in the process of getting time barred on December 31, 2007, the Revenue, having regard to the steps taken from time to time, cannot be criticized of being either sluggish, indifferent or causal in its approach to the requirement of filing the accompanying appeals. The last date thereof being January 22, 2008, the Assessing Officer might have diverted his attention to the assessment cases, which were to get time barred prior thereto, i.e., December 31, 2007. There is no overwhelming material on record to negate the correctness or authenticity of this averment as well as of the acute shortage of the staff in his office adding to the delay in processing the exercise undertaken. The response of the Assessing Officer in forwarding the relevant papers and documents noticeably had been on January 11, 2008, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
