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TMI Blog2014 (9) TMI 1212X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 B of the Act. As a matter of fact, the condonation of delay in this case would tantamount to unsettle the earlier order of the tribunal, which is certainly not permissible as per law. Furthermore, it is noted that the Hon ble High Court of Calcutta has also dismissed the appeal by the revenue against the ITAT order. Hence, our action of condoning the delay of 4 years will also have the effect of rendering the Hon ble High Court s order as infructuous. This will be gross indiscipline on our part. Moreover, the case laws as relied on by the ld. Counsel of the assessee support the case of the assessee In these circumstances, in our considered opinion on the facts and circumstances of the case of the case the delay in filing the appeal over of over 4 years cannot be condoned. Hence, the appeals filed by the revenue are dismissed in limine. - ITA Nos. 1768 & 1769/Kol/2006, CO Nos. 102 & 103/Kol/2006 - - - Dated:- 15-9-2014 - Hon ble Sri Shamim Yahya, AM Hon ble Sri George Mathan, JM For the Appellant/Department: Shri Ravi Jain. Ld. CIT/DR For the Respondent/Assessee: Shri S. N Surana, Advocate, ld.AR ORDER PER BENCH These appeals by the Revenue and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noted at para 2 of the Order of the Hon ble ITAT, the CIT-XV, Kolkata during the course of hearing had stated that ordinarily the transfer of jurisdiction takes defect from the date when the file was received by the transferee AO , and that the filing of the second appeal by the ACIT-39, Kolkata was a simple irregularity and the authorities having jurisdiction should be given an opportunity to file the appeal afresh . On this issue at para 2.1 of the order of the Hon ble ITAT it has been stated that the learned counsel submitted it will be for the Department to consider filing of the fresh appeal and such fresh appeal will be considered by the Tribunal in accordance with Law when it comes up for hearing . As is evident from the facts of the case, the AO having jurisdiction over the case [ ITO, Ward-44(2) ] could not file second appeal before the Hon ble ITAT within the due time for reasons beyond his control. Hence, under the circumstances, the undersigned prays leave to file a fresh appeal before the Hon ble ITAT. In view of this, the delay in filing second appeal may kindly be condoned and the earlier order dated 28.07.2002 in ITA Nos.1851 1852 may kindly be recalled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Co., reported in AIR 1954 page 613 stating that the facts of this case are exactly similar to the said case before the Hon ble Calcutta High Court. He, therefore, submitted that in view of the legal position, the appeal of the department is incompetent and should be dismissed as such. 3.1 From the above, it is apparent that the Tribunal has considered all the aspects as available in the case and dismissed the revenue s appeal on the count of lack of proper jurisdiction. By no stretch of imagination, it can be said that these appeals filed before us are in pursuance to the ITAT order. In this regard, we note that the ld. Counsel of the assessee has submitted that the appeal was taken up for hearing by the Hon ble ITAT and the respondent took the objection with regard to the admissibility of the appeal in the first instance itself. The plea of the ld. Counsel of the assessee is that the respective Commissioners were aware of the AO not having proper jurisdiction. In this regard the ld. Counsel of the assessee has further referred to the explanation of the ld.CIT, Kolkata-XIII dated 5-11-2004, in which is stated that Moreover in view of the spirit of of section 292B of I.T Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 002 itself and the department was aware in September 2002 itself that only the AO ward 44(2) was having proper jurisdiction but nothing was done to correct the illegality of filing of appeals by ACIT Circle-39. Therefore, it is clear that the CIT-XV did not direct the AO immediately after 27.9.2002 to file the appeal or call for the report but kept mum. This shows his inaction on the order and not a mistake. Further when in 2004 itself, the ld.CIT-XV was satisfied that it was a mistake then who prevented him to rectify or file a fresh appeal. No permission is required from the ITAT for filing any fresh appeal if it was noticed that the earlier appeal was without jurisdiction nor any permission was given or could have been given by the ITAT for filing such appeals a fresh. It was for the department to act with due diligence in time. Even no petition was filed at that time to treat the said earlier appeals as withdrawn after filing a fresh appeal. All these actions and inactions of the department will show that the department never acted with due diligence to make good the illegality already occurred though it has fully manned judicial department with consultants and counsels ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The facts of the present case are same. In Ramprasad Dagduram (1967 54 AIR 278 the Hon ble Supreme Court held that considering the bar of limitation the added parties are not entitled to obtain any relief because of bar of limitation. (copy enclosed). It is further submitted that the ITAT has already held that the appeal filed by the Revenue cannot be entertained being invalid. The time consumed in prosecuting an invalid appeal cannot be a ground for condoning the delay. A suit filed by a stranger when lost cannot buy time for the actual plaintiff. On a similar issue the Hon ble High Court while deciding the issue on condonation of delay in the case of in the case of Kavunny Chakklar reported in AIR 1975 (Ker) 182 has held even liberal interpretation would not permit the acceptance of contention that an incompetent plaintiff suit can be invoked by another plaintiff to claim exclusion of time. A copy of the judgement is enclosed herewith. If a person has no cause of action and files the suit another plaintiff cannot claim exclusion of time , a copy of the said judgement is enclosed herewith. . In another judgement in the case of India Electric Works Limited reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit shall as regards him be deemed to have been instituted when he was so made a party .. Their lordships are of the opinion that S.22 contemplates cases in which a suit is defective by reason of the person or one of the persons in whom the right of suit is vested not being before the court. Section 133 of the Civil Procedure Code provides against the defence of a suit on this ground and enables the proper party to be added or substituted. If A is the right person to sue, it would be clearly wrong to allow him for the sake of avoiding the Limitation Ordinance to take advantage of a suit improperly instituted by B. (emphasis supplied). In the case of the respondent also the objection as to the maintainability of the appeal was taken at the initial stages, the department also took note of it vide their explanation mentioned and hereinbefore, still the department did not proceed to correct the appeal They waited till the decision of the ITAT knowing fully well that filing of the appeal by the ACIT, Cir. 39 was clearly not valid and illegal. As stated earlier the department had filed a number of appeals during the same period but the same were filed by the AO having correct juri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t preferred an appeal, cannot later on, on seeing some observation in a judgement or a finding about the law cannot plead that the delay be condoned of the entire period for which the party had felt contended and not preferred an appeal. The appellant did not prefer an appeal against the order of CWT(A) for above five year in once case for about one and half year in another case. Ignorance of law, appellants neglect or failure to seek legal advice is not sufficient ground for condonation of delay. Ignorance of law is no excuse and Court cannot consider ignorance of Law or mistake of law as sufficient cause for condonation of delay. If condonation is allowed on such ground, then there would be no end to the litigation and a party can prefer an appeal against an order at any point of time after finding some observation in a judgment subsequently delivered by a higher forum. In fact this jugdement also covers the observations of the Hon ble ITAT in the case of this respondent made in its order dated 28.7.06 with regard to the question raised in the course of hearing which has now been taken as shelter by the ld.AO in his condonation petition in later part of para three. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only for sufficient and good reasons supported by cogent and proper evidence. Now it is settled principle of law that the provisions relating to specified period of limitation must be applied with their rigour and effective consequences. In the case of M.S Nuton India Ltd reported in 219 ITR page 736 the Hon ble Delhi High Court has held that the department was equipped with the full legal department and therefore filing of appeal by a wrong person cannot be said to be bonafide. There has to be sufficient and cogent reasons to show that the department acted with due diligence. In the case of Hindusthan Aeronautics 6 CTR page 73 the Hon ble Orissa High Court has held that there has to be due diligence and care to taken the action at the appropriate time. In Nihalkaran vs. CWT the Hon ble MP High Court 175 ITR page 14 has held if there was no diligence on the part of the applicant there cannot be condemnation of delay. It has to be shown that the authorities acted with due diligence. The ITAT in the case of Tractor Farm Equipments reported in 105 TTJ page 705 have held that there has to be due diligence while asking for condonation of delay. In the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified the appeal on 19th October 2006 when there was no authorization to file the appeal with him on that day. He received the authorization on 23.10.2006 as appears from the certificate of authorization filed before the Hon ble ITAT a copy of which is enclosed herewith. The ld.DR has now filed the copy of the order sheet of the ld. CIT. It will be apparent from the said order sheet that there is no incorporation of the earlier communication in the said order sheet. Therefore, the veracity of the said order sheet as on the dates of entries is not free from doubt. The ITAT has considered the facts in such situation in the case of Suresh Kumar Agarwala (in ITA No.1964/Kol/2005 dated 20.3.2007 copy enclosed. There is an order sheet which starts from 12.10.2007 (hand written). Then there is an entry computer printed where the AO technical has given his comments. There is no direction but an endorsement file further appeal before the ITAT . This direction is not there in the written computerized copy filed in the first instance by the ld.DR nor this finds place in the order sheet. The direction even if mentioned in the order sheet cannot be taken cognigence since the ld. CIT under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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