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TMI Blog2014 (5) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... handed over to the new incumbent - In the process, one file for filing appeal before the tribunal was lost sight of - It is not even seriously disputed that the Revenue always desired to prefer appeal for the year 2004-2005 also - The fact that despite instructions of the Commissioner, the appeal was not filed came to the light of the department only when tax appeal of the same assessee for other year came up for hearing - the tribunal upon which after making inquiries and finding out that due to such lapse, the appeal was not filed, steps were taken to do so with condonation of delay application – the delay to be condoned – Decided in favour of Revenue. - Tax Appeal No. 1154 of 2013 - - - Dated:- 22-4-2014 - Akil Kureshi And Sonia Gokani,JJ. For the Appellants : Mrs. Mauna M. Bhatt, Adv. For the Respondents : Mr. J. P. Shah, Senior Counsel With Mr. Manish J. Shah, Adv. JUDGMENT (Per : Honourable Mr. Justice Akil Kureshi) 1. Pursuant to our notice dated 18.2.2014, we have heard learned counsel for the parties for final disposal of the tax appeal. Appeal is filed by the Revenue and is directed against the judgement of Income Tax Appellate Tribunal ('the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iling of appeal to ITAT in the above case might not been mentioned in the handing over note exchanged by the officers relieved and taking over the charge of Circle 4, Ahmedabad and accordingly the aspect of filing appeal to ITAT might have not been taken into account by the officer taking over the charge of circle 4, Ahmedabad 3. In view of the above facts, it is submitted that departments appeal was not filed due to oversight innocuously by the concerned Assessing Officer taking over the charge during the period when the filing appeal was getting barred by time. As the omission has occurred inadvertently, it is requested to kindly condone the same and also looking to the tax effect involved in this case of 7.71 crores. 3. The tribunal however, was of the opinion that there was inordinate delay of over five years. The reason given by the Revenue was not sufficient or satisfactory. Mere failure on part of the concerned officer to handover the charge to the successor officer would not be a ground to ignore such inordinate delay. It is this order which the Revenue has challenged in this tax appeal. 4. We are conscious that delay is substantial. However, on the premise that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cir.4, Ahmedabad, pendency of filing appeal before the ITAT in the case of the respondent assessee for the assessment year 2004-05 went unnoticed by the Assessing Officer as neither of them communicated about this fact in absence of any specific charge report given by Dr. Jayant Jhaveri during whose additional charge, the authorisation dt.13.06.2007 was received from all the three officers are annexed hereto, marked as Annexure-A. Action for negligence of duty is in process and will be taken after fixing the responsibility. (iv) With regard to the procedure to be followed by an officer relinquishing the charge and new officer taking over charge, it is submitted that normally handing over notes are not given when an officer proceeds on leave as it is expected of him to return to the same post from where he has proceeded on leave. However, important pending work is orally explained to the person taking over charge of the officer proceeding on leave. Handing over note is generally given when officer is relinquishing charge on transfer. 5. As stated hereinbefore, the respondent assessee had filed appeal before the Appellate Tribunal against the additions confirmed by the CIT(Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which happened in quick succession that fact went unnoticed that the tax appeal in question was to be filed and that same was not till then filed though directed by the Commissioner. 7. Along with the said affidavit, the Revenue has also produced letter dated 24.1.2014 of Shri G.M.Chauhan (since retired) in which he has stated that he was burdened with heave workload. Non filing of the appeal during his tenure was only bona fide lapse. 8. Section 253 of the Act pertains to appeals to the Appellate Tribunal and limitation for filing such appeal is also prescribed therein. Sub-section (5) of section 253 provides that the Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross objections, after the expiry of the period referred to in sub-section(3) or sub-section(4), if it is satisfied that there was sufficient cause for not presenting it within that period. Sub-section(5) of section 253 thus give ample powers to the Appellate Tribunal to admit an appeal or cross objection beyond the period of limitation prescribed in sub-section (3) and sub-section (4), if the tribunal is satisfied that there was sufficient cause for not presenting such proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he tax impact in the appeal, we would be inclined to condoned the delay. We would not in the case of this nature, like to dismiss the State appeal without consideration on merits. The applicant has correctly placed reliance on the observation of Supreme Court in case of Commissioner of Income-Tax V. West Bengal Infrastructure Development Finance Corporation Ltd, reported in [2011] 334 ITR 269 (SC), in which it was observed thus : 5. Looking to the amount of tax involved in this case, we are of the view that the High Court ought to have decided the matter on the merits. In all such cases where there is delay on the part of the Department, we request the High Court to consider imposing costs but certainly it should examine the cases on the merits and should not dispose of cases merely on the ground of delay, particularly when huge stakes are involved. In case of State of Nagaland V. Lipok AO Ors., reported in (2005) 3 Supreme Court Cases 752, it was observed as under :- 13. Experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic metho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officers or agents and where the officers were clearly at crosspurposes with it. It was, therefore, held that in assessing what constitutes sufficient cause for purposes of Section 5, it might, perhaps, be somewhat unrealistic to exclude from the consideration that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government. Government decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red-tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of Government must have a little play at the joints . Due recognition of these limitations on governmental functioning of course, within reasonable limits is necessary if the judicial approach is not to be rendered unrealistic. It would, perhaps, be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters. Implicit in the very nature of Governmental functioning is procedural delay incidental to the decision-making process. The delay of over one year was accordingly condoned. 15. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing an appeal. It could thus be seen that though like any other litigant, the State authorities are also equally bound by the law of limitation, recognizing certain elements of public interest and the impersonal and slow moving machinery of the Government, the Courts have moulded their approach, while considering request of the State for condoning the delay. In the present case, as already noticed, explanation in the form of administrative clearances and consumption of time in the office of the Government Pleader in preferring the appeals are pressed in service for explaining the delay. Further, the duty amount involved in the appeal is also substantially large. Considering these aspects of the matter, delay is condoned by awarding cost of Rs.15,000/-, which shall be paid to the respondent within four weeks from today. 11. Reverting back to the facts of the case, explanation by the Revenue is not of mere tossing file from one table to another or from one authority to another. The explanation is somewhat unusual, nevertheless, appears to be genuine. On account of unusual circumstances, where the person in charge proceeded on leave handing over the charge to another incumbent. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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