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TMI Blog2023 (2) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... error in the reasons given by the Ld.CIT(A) to dismiss appeals filed by the assessee unadmitted for delay in filing of the appeals - Appeals filed by the assessee are dismissed. - ITA Nos. 1036-1039, 1040-1047 & 1048-1053/Chny/2022 - - - Dated:- 31-1-2023 - SHRI V. DURGA RAO, HON BLE JUDICIAL MEMBER AND SHRI G. MANJUNATHA, HON BLE ACCOUNTANT MEMBER For the Appellant : Mr.R.Devaraj, Adv. For the Respondent : Mr.D.Hema Bhupal, JCIT ORDER PER BENCH : This bunch of appeals filed by the assessee are directed against separate, but identical orders of the Commissioner of Income Tax (Appeals), Income Tax Department, National Faceless Appeal Centre, Delhi, all dated 10.11.2022, and pertains to assessment years 2013-14 to 2015- 16. Since, the facts are identical and issues are common, for the sake of convenience, these appeals were heard together and are being disposed off, by this consolidated order. 2. The assessee has, more or less, raised common grounds in all appeals. Therefore, for the sake of brevity, grounds of appeal filed in ITA No.1037/Chny/2022 for the AY 2013-14, are re-produced as under: 1) On the facts and circumstances of the case and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssesse/Appellant. 3. The brief facts of the case are that the assessee has filed quarterly e-TDS return beyond due date specified under the Act for all quarters of AYs 2013-14, 2014-15 2015-16. The AO, CPC, TDS Cell, processed TDS return filed by the assessee u/s.200A of the Income Tax Act, 1961, and levied late fees u/s.234E of the Act. The assessee had filed appeals against the order of the AO, CPC, TDS Cell, with huge delay of more than 2000 days. The Ld.CIT(A), for the reasons stated in their appellate orders dated 10.11.2022, has dismissed appeals filed by the assessee unadmitted without condoning the delay in filing of the appeals on the ground that the assessee could not explain huge delay in filing of the appeals, which cannot be considered for condonation of delay. Aggrieved by the orders of the Ld.CIT(A), the assessee is in appeals before us. 4. The Ld.AR for the assessee submitted that the Ld.CIT(A) erred in dismissing the appeals filed by the assessee in limine without condoning the delay. Even though, the assessee has explained the reasons for delay in filing of the appeals, which is neither intentional nor to derive any undue benefit. The Ld.Counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sr.No. Appeal No. FY/Quarter Date of passing order Date of filing appeal Delay in days 1 NFAC/2013- 14/10026938 2012-13/Q3 12.12.2013 17.11.2020 2502 days 2 NFAC/2012- 13/10026936 2012-13/Q2 12.12.2013 17.11.2020 2502 days 3 NFAC/2012- 13/10026937 2012-13/Q3 12.03.2013 17.11.2020 2502 days 4 NFAC/2012- 13/10026952 2012-13/Q2 12.03.2013 17.11.2020 2502 days 5 NFAC/2013- 14/10027169 2013-14/Q1 16.03.2014 19.11.2020 2410 days 6 NFAC/2013- 14/10026960 2013-14/Q2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old arguments. The first and foremost arguments of the assessee before the Ld.CIT(A) are that there was an ambiguity in levy of late filing fees u/s.234E of the Act, in view of non-availability of enabling provisions u/s.200A of the Act, before amendment brought to sec.200A of the Act, by the Finance Act, 2014 w.e.f.01.06.2015. Therefore, the assessee was having a dilemma to file appeals against the order of the AO in levying late final fees u/s.234E of the Act, or not. However, of late, various Courts and Tribunals have taken a consistent view that before amendment to Sec.200A of the Act, w.e.f.01.06.2015, late fees u/s.234E of the Act, cannot be levied. Therefore, prompted with judicial decisions, the assessee has taken a decision to file appeals before the First Appellate Authority. Further, the Counsel who was handling tax matters of the assessee, was also advised assessee not to file appeals against the order of the AO in levying late fees u/s.234E of the Act. The assessee had consulted another Counsel who had advised the assessee to file appeals against the order of the AO u/s.200A of the Act, and the assessee has taken steps to go through necessary papers for filing appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ld.CIT(A) and said delay varies from 600-2500 days. Although, the assessee has given a reason that there was an ambiguity in the law in levying penalty u/s.234E of the Act, but, in our considered view said issue has been resolved by various Courts way back in the year 2016 itself. Further, the second reason given by the assessee that there was a wrong advice given by Consultant who handle the cases is unsubstantiated, because, the assessee could not file any evidences to justify its arguments. Moreover, it is for the assessee to know various laws, including Income Tax laws and comply with the said law. In case, any professional gives a wrong advice, the assessee does not require so much time to consult another professional who can give better advice. Therefore, in our considered view, the reasons given by the assessee that there is a wrong professional advice not to file, which leads to delay appears to be not bona fide. Thus, we are of the considered view that there is no error in the reasons given by the Ld.CIT(A) to reject appeals filed by the assessee on condonation of delay. 8. Having said so, let us come back to judicial precedents which have considered the issue of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard. (iii) A similar view has been taken on an identical scenario by the Id. Appellate Tribunal, Mumbai, in Lakshya Global Logistics Pvt. Ltd vs DCIT, CPC TDS, Ghaziabad (I.T.A. No. 6979-6984/Mum/2017 dated 23.01.2019). Relevant portion is quoted below: 1. We have heard counsels for both the parties and we have a/so perused the material placed on record, judgments cited by the parties as well as the orders passed by the revenue authorities. We find from the records that the assessee had filed all twenty appeals against the orders of Ld. CIT(A) thereby taking the solitary ground that late filing of appeal before Ld. CIT(A) was based on the ground that assessee was given wrong advice by the Tax Consultants and therefore the assessee should not be allowed to suffer because of the wrong advice given by the tax consultant. 2. On deep scrutiny of the factual position as put forth by the assessee, we find that assessee had taken a conscious decision after due consideration at the relevant point of time for not filing the appeals against the impugned orders. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15) 57 taxman. Com 7 (Bom), wherein it was held that where assessee took voluntary decision not to assail the order of Tribunal and accepted the same, only because assessee succeeded on same issue 5 year later. the same could not be a sufficient cause to delay the condone of 5 years in filing the appeal. 8. In our considered view, section 5 of the Limitation Act cannot be stretched to bring about a situation of unsettling judicial decisions which stood accepted by the parties. If the contention of the assessee is accepted, it would create a situation of chaos and unsettling various orders passed from time to time by the authorities /courts as accepted by the parties. The legislative mandate in stipulating a limitation to file an appeal within the prescribed limitation cannot be permitted to be defeated when a litigant has taken a decision not to pursue further proceedings. The only defense raised by the assessee relates to rendering of wrong advice by the tax consultant. If this is permitted, the inevitable consequence is uncertainty and inconvenience as then no order can ever attain finality though accepted by the party. 9. We are also conscious of the fact that while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ...The law of limitation is normally to be construed strictly as it has the effect of vesting for one and taking away right from the other. To condone the delays in a mechanical or a routine manner may amount to jeopardizing the legislative intent behind section 5 of the Limitation Act. ...... It interposes a statutory bar after a certain period giving quietus to the rights arising from a judgment which is sought to be impugned........ Where the parties chose to sleep over their rights for prolonged periods without any just cause, can hardly claim equity in justice particularly faced with the statutory provisions of section 5 of the Act. (vi) The Hon'ble Delhi High Court in Moddus Media Pvt. Ltd. vs M/s Scone Exhibition Pvt. Ltd. (RFA 497/201dated 18 May, 2017), held as under: 11. The litigant owes a duty to be vigilant of his rights and is a/so expected to be equally vigilant about the judicial proceedings pending in the court of law against him or initiated at his instance. The litigant cannot be permitted to cast the entire blame on the Advocate. It appears that the blame is being attributed on the Advocate with a view to get the delay condoned and avoid the decre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, we find that the assessee could not explain huge delay of more than 2500 days in filing of the appeals before the Ld.CIT(A). No doubt, as per the judgments of various Courts, while a liberal approach is to be normally taken in considering the application for condonation of delay, because substantial justice deserves to be preferred over technical consideration, but it is equally true that a person invoking the discretion of the appellate authority in inordinately belated appeals is required to show compelling cause, the operation of which was beyond its control. In this case, as per facts available on record, we find that the delay is not for a month or two, but is for a significantly large period of 2500 days. It is well settled that a distinction must be made between a case where the delay is inordinate and where the delay is of few days only. In our considered view, these appeals fall within the former category. The quantum of delay makes it manifestly evident that these appeals were not prosecuted with due care. Therefore, considering the facts and circumstances of the cases, we are of the considered view that there is no error in the reasons given by the Ld.CIT(A) to dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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