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TMI Blog2019 (11) TMI 508X X X X Extracts X X X X X X X X Extracts X X X X ..... ofessional counsel cannot be expected to admit his lapses, lest it should affect his reputation. In any case, no material was brought on record by the revenue to show that the assessee was continuing to avail the services of very same counsel even after noticing his lapse. Hence, reason given by the affidavit cannot be considered to be a malafide one. It is well settled proposition that the mistake on the part of the counsel constitutes sufficient cause in the matter relating to condonation of delay. X X X X Extracts X X X X X X X X Extracts X X X X ..... y the assessee). Immediately after the receipt of copy of the appellate order on 04-03-2015, the assessee filed appeal before the Tribunal on 31.03.2015. 5. With regard to the petition filed by the assessee praying for condonation of delay, the Learned Accountant Member took the view that the assessee has failed to show that it was prevented by sufficient cause in filing the appeal belatedly. Accordingly the Ld Accountant member held that the delay cannot be condoned and the appeal of the assessee is not liable to be admitted. The Learned Judicial Member, however, took the view that the explanations given by the assessee along with relevant documents clearly demonstrated the bonafide and sufficient cause for nonfiling of appeal within the time limit. Accordingly Learned Judicial member took the view that the delay should be condoned. 6. There was difference of opinion between the members with regard to the matter of framing questions relating to point of difference also. With regard to the point of difference, the Ld. Accountant Member has framed the following questions:- 1.(a) Whether sufficient cause, which is a question of fact, to be considered 1áing the totality ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision on those question(s). Upon considering the facts of the case, issue before me and the questions proposed by both the members, I am of the view that the following question may be taken up to bring out difference of opinion expressed by the Members:- "Whether, in the facts and circumstances of the case, the explanations furnished by the assessee for not filing the appeal within the prescribed period of limitation would constitute sufficient cause or not and accordingly whether the delay in filing the appeal should be condoned or not?" 9. The Ld A.R reiterated the submissions made in the petition filed by the assessee requesting the bench to condone the delay. He submitted that the assessee has shown sufficient cause for the delay and further the delay is not intentional. He placed his reliance on the following case laws and submitted that, in the interest of natural justice, the delay should be condoned. (a) Collector, Land Acquisition vs. Mst. Katiji&ors (167 ITR 471)(SC) (b) CIT vs. West Bengal Infrastructure Development finance Corp. Ltd ((2011) (334 ITR 269) (SC) (c) Bhivchandra Shankar More vs. BaluGangaram More (Civil Appeal No.4669 of 2019) (SC) (d) Eln ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere was no sufficient cause for the delay and hence the delay should not be condoned. 11. In the rejoinder, the Ld A.R submitted that, since there was lapse on the part of the earlier counsel in the form of non-communication order and in view of the strained relationship, there was no co-operation from the earlier counsel and hence the assessee could not get a confirmation letter him. Hence the assessee was constrained to change the counsel. Accordingly he submitted that the bonafides of the submissions made in the affidavit should not be doubted with. 12. I heard the parties on this issue. Before proceeding further, I prefer to extract below some of observations made/principles laid in the matter of condonation of delay by Hon'ble Courts. In the decision rendered by Hon'ble Supreme Court in the case of Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy & others (Civil Appeal Nos.8183 - 8184 of 2013), the Hon'ble Supreme Court has referred to some of the decisions rendered by Hon'ble Courts on the principles to be followed while adjudicating the issue of condonation of delay. For the sake of convenience, I extract below some of them:- "(a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1970)(2 SCR 90); Collector, Land Acquisition v. Katiji etc. There is, it is true, no general principle saving the party from all mistakes of its counsel. If there is negligence, deliberate or gross inaction or lack of bona fide on the part of the party or its counsel there is no reason why the opposite side should be exposed to a time-barred appeal. Each case will have to be considered on the particularities of its own special facts. However, the expression 'sufficient cause' in Section 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay."…. (c) In this context, we may refer with profit to the authority in Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation and another (2010)(5 SCC 459), where a two-Judge Bench of this Court has observed that the law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the appellate order to the counsel of the assessee, as the address of the counsel was given in Form No.35 as the address to which notice/order to be served. Once the order was served, it is the duty of the Counsel to inform the assessee about the order received by him. According to the assessee, the Counsel did not inform or forward the copy of appellate order to it. 15. Since the assessee has put blame on the Counsel, it was specifically asked by the bench as to whether the assessee could get a letter from the Counsel in support of the averments made in the affidavit. The Ld A.R submitted that it may not be possible to get a letter from the counsel due to strained relationship between the assessee and counsel, since there was lapse on the part of the counsel. 16. An assessee usually engages a counsel to advise him and also to deal with legal matters and hence, in the normal circumstances, an assessee fully places his reliance on the counsel, due to domain expertise possessed by the Counsel. In that situation, generally the assessee should not be put in trouble for the mistake, if any, committed by a counsel. The following observations made Hon'ble Supreme Court in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15. The delay that has occurred in supplying copy of order cannot be attributed to the assessee, since it is beyond the control of the assessee. I notice that the assessee has filed appeal before the Tribunal on 31.3.2005, i.e., immediately after the receipt of copy of order. 18. The issue before me can be looked from another angle. I notice that the Hon'ble Accountant member, even though declined to condone the delay, yet he has adjudicated the grounds urged on merits. The Hon'ble Judicial Member has also agreed with the view taken by Hon'ble Accountant Member on the grounds urged on merits. Thus, in effect, the appeal has been disposed of on merits. The Hon'ble Madras High Court considered an issue relating to condonation of delay in the case of Vijayeswari Textiles Ltd vs. CIT (2003) (131 Taxman 833) on identical circumstances, i.e., in the case before Hon'ble Madras High Court also, the Tribunal had refused to condone the delay, but disposed the appeal on merits also. The Hon'ble Madras High Court observed as under:- "7. Matters relating to condonation of delay are indeed discretionary and are normally left to the Tribunal and this court will not ordinarily interfere with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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