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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 ..... National Faceless Appeal Centre (NFAC), Chennai, has erred in holding the delay, in filing the appeal cannot be condoned. The Appellant prays that, the delay be condoned and appeal should be taken for hearing. 2) On the facts and circumstances of the case and in law, the Learned CIT (A) National Faceless Appeal Centre (NFAC), Chennai, has erred in not deciding the issue on merits. The Appellant prays the same may kindly be heard & allowed. The consultant who prepared the appeal to be filed before the CIT (A), (NFAC), advised us to wait, till the outcome of the verdict, in respect of levy of penalty U/s 234 E of the. Act. After the verdict which is in favour of the Assesse, the consultant further advised, based on the verdict, the department itself may withdraw the intimation notice, issued U/s 154 of the Act. The department has not withdrawn the intimation notice. Since, it has not been withdrawn, there is a delay of 2327 days, to file the appeal before the CiT (A), (NFAC). The delay is neither willful or wanton. As per the order, in !TA No. 6240/M/2007 dated 23/03/2010, by the "A" Bench, ITAT, Mumbai, the Hon'ble Tribunal, accepted the contention, that due to the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law in as much as there were divergent judgments on the issue of charging late filing fee u/s.234E of the Act, for bleated filing of quarterly TDS returns. However, of late, the law has been evolved where the position of law has been clarified by various courts and observed that in absence of enabling provisions u/s.200A of the Act, for levying penalty while processing return, there cannot be any late fee u/s.234E of the Act, before amendment to sec.200A of the Act by the Finance Act, 2014 w.e.f. 01.06.2015. The Ld.Counsel who was handling tax matters of the assessee, has advised the assessee not to file appeals for the reason that the Government may withdraw late filing fees charged for belated filing of returns on the basis of subsequent judgments. However, the assessee could able to contact another Counsel who had advised the assessee to file appeals on the basis of subsequent judgments of various Courts and Tribunals, which caused delay. But, the delay in in filing of the appeals is neither willful nor to derive any undue benefit, but purely beyond the control of the assessee. Therefore, for advancement of substantial justice the delay in filing of the appeals may be condoned a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17.11.2020 2273 days 17 NFAC/2014- 15/10027031 2014-15/Q3 05.05.2015 17.11.2020 1993 days 18 NFAC/2014- 15/10027032 2014-15/Q4 06.11.2015 17.11.2020 1808 days As could be seen from the reasons given by the assessee for condonation of delay before the Ld.CIT(A), we find that the assessee has taken two-fold 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n out on technical reasons and at the same time, it is abundant duty of the litigant to explain the delay in filing of the appeals. Therefore, in light of above legal and factual background, if you examine the present cases, the assessee could not satisfactorily explained huge delay in filing of the appeals before 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A distinction must be made between a case where the^c/elay is inordinate and a case where the delay is of a few days. Whereas in the former case, the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration 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 bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account of the wrong advice of the consultant, hence in the substantial interest of justice, the delay was condone. 7. We have also considered the judgment passed by Hon'ble Jurisdictional High Court in the case of Somerset Place Cooperative Housing Society Ltd. Vrs. ITC (2015) 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008], wherein it was observed as under (para 11 & 12, emphasis supplied): "11. Another aspect of the case is that the revenue and/or even the assessees are expected to act with care and expeditiousness and not to let things lie unprocessed for months together.......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 pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent financially as interest payout (iv) delay in refunds results into a cash flow crunch for business entities. 9. In light of ratio laid down by various Courts in the cases discussed above, if we examine the facts of the present cases, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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