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TMI Blog2017 (1) TMI 1205X X X X Extracts X X X X X X X X Extracts X X X X ..... not pursued the remedy, promptly, with diligence and due care, when they filed such applications. Inaction, is apparent on the face of record. In the light of the above, it cannot be contended that the appellants were wrongly pursuing a remedy, with diligence, care and caution and hence the delay in filing the appeals before the Tribunal should be condoned. - Decided against the assessee. - Tax Case Appeal Nos. 522, 523, 507, 508 and 509 of 2016, C. M. P. Nos. 10444, 10445, 10118 and 10119 of 2016 - - - Dated:- 3-8-2016 - S. Manikumar And D. Krishnakumar, JJ. For the Appellant : Mr. S. Sridhar For the Respondent : Mr. T. R. Senthilkumar, JUDGMENT ( Judgment of the Court was made by S. Manikumar, J ) Instant Appeals, have been filed against the orders of the Income Tax Appellate Tribunal, 'C' Bench, Madras, dated 23/09/2015. Common substantial question of law raised in all appeals by the appellant is that : whether the Appellate Tribunal is correct in law in not admitting the appeal without properly considering the reasons shown for the said belated filing of the appeal before them, proving perversity in their findings even though the belated fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. The sufficient cause within the contemplation of the limitation provision must be a cause which is beyond the control of the party invoking the aid of the provisions. The Supreme Court in the case of Ramial v. Rewa Coalfield Ltd., AIR 1962 SC 361 has held that the cause for the delay in filing the appeal which by due care and attention could have been avoided cannot be a sufficient cause within the meaning of the limitation provision. Where no negligence, nor inaction, or want of bona fides can be imputed to the assessee a liberal construction of the provisions has to be made in order to advance substantial justice. Seekers of justice must come with clean hands. In our opinion, the delay was due to negligence and inaction on the part of the assessees. The assessees would have avoided the delay by the exercise of due care and attention and there exists no sufficient and good reason for the delay of 962 days in filing these appeals. Accordingly, all the appeals are dismissed as unadmitted. Thus the appeals preferred by the Tribunal under Section 253 of the Act, have been dismissed. 5. Inviting attention of this court to a decision of this court in Commissioner of Income Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecord. 9. On 03.10.2011, the Commissioner of Income Tax (Appeals), Chennai has passed orders in the appeals filed by the assessees. As per Section 253 of the Income Tax Act, 1961, appeals have to be filed before the Tribunal, within 60 days from the date of receipt of a copy of the order of Commissioner of Income Tax (Appeals). Perusal of the orders impugned before us, shows that petitions under Section 154 of the Act, for rectification, have been filed on 18.07.2012 or 19.07.2012 respectively, as the case may be, after a lapse of eight months. 10. Further perusal of the rectification Petitions shows that except one, all other applications have been filed in the Office of the Deputy Commissioner of Income Tax, Central Circle III, Chennai - 34, who is not the appellate authority. Indisputably, Commissioner of Income Tax (Appeals), Range II, Chennai, is the competent authority, to entertain, any application filed under Section 154 of the Act. Details of the rectification Petitions filed, the authority, before whom, such petitions, have been filed are detailed hereunder: Sl.No. Appellant Name ITA Number Date of fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 Sarla Kanwar 213/09-10 -do- 4 Suresh Kumar Kochar 211/09-10 -do- Though Mr.S.Sridhar, learned counsel for the appellants strongly relied on the decisions of Commissioner of Income Tax vs. K.S.P.Shanmugavel Nadar Ors. reported in (1985) 153 ITR 0596, and Sachindra Nath Mondal Anr. vs. Shakuntola Malhotra Ors. decided on 14.03.2016, and contended that availing a wrong remedy, and diligently pursuing the same, would not hold the appellants guilty of laches and that therefore, this court, in the interest of justice, can condone the delay, even by imposing cost, this court is not inclined to accept the said contentions, for the reason that there is absolutely, no material on record to substantiate due diligence and proper care exercised by the appellants. They have not taken prompt steps to rectify their mistake. Steps have been taken nearly after a delay of two years. 12. In prosecuting a remedy before the wrong forum, we are of the considered view that the appellant must show that he was pursuing the same remedy, in a bona fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax (Appeals), is not supported with any material document. Mere averments, do not stand the test of proof. 17. Though, Mr.S.Sridhar, learned counsel for the assessees/appellants submitted that it is the duty of the office of the Commissioner of Income Tax (Appeals) to have sent the notices for hearing of the rectification petitions, filed by the appellants/assessees and thus the assessees were waiting, for a considerable period, and thus attributed the cause for delay, this court is not inclined to accept the same, for the reason that as observed earlier that rectification petitions have been filed before an incompetent appellate authority. Even taking for granted that they were filed in the office of the Deputy Commissioner of Income Tax, we are of the considered view that it is for the appellants/assessees to have processed the same. Blaming an authority is always easy. Conduct of the appellants substantiates lethargy and lack of bonafides. On the facts and circumstances of the case, we are also of the considered view, that the appellants, have not pursued the remedy, promptly, with diligence and due care, when they filed such applications. Inaction, is apparent on the face of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diligence in filing of the appeals and the enormous time taken in the refiling can only be construed, in the absence of any valid explanation, as gross negligence and lacks in bonafides as displayed on the part of the Respondents. Further, when the Respondents have not come forward with proper details as regards the date when the papers were returned for refiling, the non-furnishing of satisfactory reasons for not refiling of papers in time and the failure to pay the Court fee at the time of the filing of appeal papers on 06.09.2007, the reasons which prevented the Respondents from not paying the Court fee along with the appeal papers and the failure to furnish the details as to who was their counsel who was previously entrusted with the filing of the appeals cumulatively considered, disclose that there was total lack of bonafides in its approach. It also requires to be stated that in the case on hand, not refiling the appeal papers within the time prescribed and by allowing the delay to the extent of nearly 1727 days, definitely calls for a stringent scrutiny and cannot be accepted as having been explained without proper reasons. As has been laid down by this Court, Courts are req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for instituting proceedings for which law has prescribed period of limitation. 17.... Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long time, it cannot be presumed to be non-deliberate delay, and in such circumstances of the case, he cannot be heard to plead that substantial justice deserved to be preferred as against technical considerations. We are of the view that the question of limitation is not merely a technical consideration. Rules of limitation are based on principles of sound public policy and principles of equity. It is a litigant liable to have a Damocles' sword hanging over his head indefinitely for a period to be determined at the whims and fancies of the opponent 19. In the light of our discussion, and principles of law laid down by the Hon'ble Supreme Court in H.Dohil Constructions Company Private Limited V. Nahar Exports Limited and Another, reported in 2015 (1) Supreme Court Cases 680, we are not inclined to entertain the appeals. Substantial question of law raised by the appellants, is answered against the appellants/assessees and in favour of the respondent. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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