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TMI Blog2015 (10) TMI 2700X X X X Extracts X X X X X X X X Extracts X X X X ..... n for the delay which may be condoned. However, the ld. DR, strongly opposed the delay by contending that there is no reasonable cause for huge delay, therefore, may not be condoned. 2.1. We have considered the rival submissions and perused the material available on record. Before us, the ld. counsel for the assessee place reliance upon the decision from Hon'ble Apex Court in Collector, land acquisition vs Kataji 167 ITR 471, (SC), L. Balkrishnan vs M. Krishnamurthy, (1998) 7 SCC 123 and Vasue & Company vs State of Kerala (2001) 124 STC 124 (Kerala.) We have perused the reasons mentioned by the assessee in its application for condonotion of delay along with the cited cases. We find that the assessee declared total income of Rs. 1,03,18,355/- on 24/10/2003 and the assessment order u/s 143(3) of the Income tax Act, 1961 (hereinafter the Act) was passed on 27/02/2006 disallowing the claimed deduction u/s 80HHC of the Act on the export incentives of DEPB. 2.2. The assessee felt aggrieved and filed appeal before the ld. First Appellate Authority on 10/04/2006, wherein, the appeal of the assessee was disposed off on 13/12/2007 granting part relief to the assessee and disallowing the cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t can be accepted as evidence. If proof of what is stated in the affidavit is insisted on, that will prolong the litigation. Here is a case where the Assessee. is aggrieved by the orders of the assessing authorities. According to him, he has been directed to pay tax which he was not bound to pay and on the ground of delay the Tribunal has shut the doors against him. Of course, if the Petitioner had been negligent or irresponsible, the Court cannot come to his succour. Here, we find some truth in what the Petitioner had stated in so far as he has approached this Court by filing original Petition. It would have been better, if some evidence was given regarding his case that the particular advocate did not file appeals. But the court can take judicial notice of the difficulty in getting such affidavits". 2.4. In the light of the observations made by the Hon'ble Courts, we are expected to analyze the facts and the reasons of delay in filing the appeal before this Tribunal. In the affidavit of the assessee, filed before this Tribunal, we note that even the assessee itself has admitted that the ld. Commissioner of Income Tax (Appeals) disposed off this appeal vide order dated 13/12/2007 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. First Appellate Authority, whereas, the assessee filed the appeal after 1625 days, which is even beyond imagination, especially when, the assessee has not explained the reason of delay. We are aware that the primary function of the court is to adjudicate the dispute between the parties and to advance substantial justice. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time but at the same time it is equally important to note whether the assessee has duly explained the reason of delay. The Hon'ble Court in Vasu & Company vs State of Kerala has clearly mentioned that if the petitioner is negligent or irresponsible, the court cannot come to his rescue. This is exactly the case before us. The law of limitation fixes a life span for such legal remedies for the redressal of a legal injury, if any, suffered by the assessee. However, in the present appeal, there is a clear cut conscious delay of 1625 days, which, in our view, if condoned, under the facts available on record, then there is no need to keep the provision under the limitation Act. Even the Hon'ble Apex Court in Collector, Land Acquisition vs Katiji (supra) has clearly mentioned ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the miscellaneous first appeal shall stand dismissed as barred by time. No costs." XXXXXXXXXXXXX "Once the concerned authority applies its mind and declines to condone the delay in filing the appeal for good and appropriate reasons, in that event it cannot give rise to a question of law for determination." The Supreme Court of India in the case of Oriental Investment Co. Ltd. v. CIT [1957] 32 ITR 664, 675 ; AIR 1957 SC 852, held as under (857 of AIR 1957 SC) : "A finding on a question of fact is open to attack under section 66(1) as erroneous in law if there is no evidence to support it or if it is perverse." A Full Bench of the Orissa High Court, in the case of Brajabandhu Nanda v. CIT [1962] 44 ITR 668, considering somewhat similar question, where the appeal was barred by time and reference of the question was declined, held as under (headnote) : "That the questions referred were not questions of law but questions of fact since it was a matter of discre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observations, this petition is dismissed. Our view is fortified by the decision from Hon'ble Punjab & Haryana High Court in the case of CIT vs Ram Mohan Kabra (2002) 257 ITR 773 (P& H). The totality of facts, clearly indicates that the assessee took a conscious decision firstly, not to file the appeal against the order of the ld. First Appellate Authority and thereafter took a decision to file the appeal. It is not the case of delay which was beyond the control of the assessee. So far as, the affidavit is concerned, it is a self serving document and the assessee has not explained satisfactorily the reason of delay in filing the appeal. The assessee was wilfully negligent or irresponsible in taking a decision, thus, the huge delay cannot be condoned. We are conscious of the fact that technicalities should not come in the way of substantial cause of justice but in cases, where the delay was beyond the control of the assessee or some genuine difficulties hindered his smooth way. As discussed earlier, it is clear cut case of conscious decision, thus, we find no merit in the self made story of the assessee, therefore, on this issue, we are not agreeing with the admission of this appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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