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TMI Blog2024 (6) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... the function of concerned authorities often to find cause for delay. The Court/authority has to examine whether the sufficient cause has been shown by the party for condoning the delay and whether such cause is reasonable or not. In the present case in hand, the assessee explained the delay in filing the appeals before the ld. CIT(A) was on the reason that the assessee pursued the remedies before the High Court by filing the writ and on dismissal of writ, assessee filed writ appeals before the Hon ble High Court. Later, it has filed review petitions. Thus, the assessee before us was able to demonstrate that assessee prosecuted for alternative remedy under bonafide belief and the assessee has been failed to get relief as sought by in its writ. This being the position, it constitutes a sufficient cause for filing the appeals belatedly. This view of ours is supported by judgement of KSP Shamugavel Nadar [ 1984 (4) TMI 24 - MADRAS HIGH COURT] wherein the assessee has filed writ petition for condoning the delay of 21 years on the ground that he had been prosecuting other remedies and hence, the time taken bonafide for prosecuting other remedies should be taken into consideration for co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ively all are dated 29.1.2024. In these assessment years, the ld. AO has framed the assessment as follows: (i) AYs 2012-13, 2013-14 2014-15: 2. In these assessment years, the assessment orders have been passed ex-parte u/s 144 of the Income Tax Act, 1961 (in short The Act ). The ld. AO has made various additions u/s 68 of the Act as the assessee has not explained the source of credit found in the books of accounts of the assessee. (ii) AY 2012-13: 3. In this assessment year, the assessment order has been passed u/s 143(3) r.w.s. 147 of the Act making further addition of Rs.3.05 crores on account of writ of various credits through shell companies. Over the above the addition made in assessment order passed u/s 143(3) r.w.s. 147 of the Act in this assessment year. (iii) AY 2015-16: 4. In this assessment year, the assessment order has been passed u/s 143(3) of the Act making various additions u/s 68 of the Act for not proving the credit entry found in the books of accounts. 5. Against this assessee went in appeal before ld. CIT(A), challenging the various additions made by ld. AO. However, the appeals have been filed before ld. CIT(A) belatedly as below: AY Order passed by AO u/s Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdingly. 2.2 AY 2012-13 The applicant is filing this appeal against the assessment order dated 20.12.2019. In the normal circumstances, the appeal should have been filed within 30 days of the receipt of the order. The appellant had received order, well in time. Immediately on receipt of the order and in view of the facts that the assessment was high pitched assessment, the appellant was advised to approach an Advocate for filing writ petition. Therefore, the assessment order was given to the Advocate for filing writ petition. However, the writ petition was not filed and the appellant on follow up was assured that the writ petition will be filed. However, despite the assurance, writ petition could not be filed. The appellant was under an impression that the writ petition was filed. However, recently the appellant got notice for payment of demand for the yar, then the appellant enquired with the Advocate and it turned out that the writ petition was prepared but was not filed and the matter was lost sight of. Immediately, on coming to know of this, the appellant consulted the tax experts and then the appellant was advised to file appeals with a petition for condonation of delay. Accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant on follow up was assured that the writ petition will be filed. However, despite the assurance, writ petition could not be filed. The appellant was under an impression that the writ petition was filed. However, recently the appellant got notice for payment of demand for the yar, then the appellant enquired with the Advocate and it turned out that the writ petition was prepared but was not filed and the matter was lost sight of. Immediately, on coming to know of this, the appellant consulted the tax experts and then the appellant was advised to file appeals with a petition for condonation of delay. Accordingly, the appellant made arrangements to file this appeal. This delay in filing appeal is due to sufficient cause. It is therefore, prayed that the delay in filing appeal may kindly be condoned and the appeal may be admitted for hearing in the interest of natural justice and equity. The appellant prays accordingly. 2.5 AY 2015-16 The applicant is filing this appeal against the assessment order dated 29.12.2017. In the normal circumstances, the appeal should have been filed within 30 days of the receipt of the order. The appellant had received order, well in time. Immediat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon ble High Court since the assessment orders have been passed ex-parte except the reopened assessment for the assessment years 2012-13 2015-16 passed u/s 143(3) r.w.s. 147 of the Act. As such, there is a gross violation of principles of natural justice and prayed that the delay may be condoned in filing the appeals before ld. CIT(A) since the orders are passed by ld. AO ex-parte and may be remitted back to the file of ld. AO, so as to render substantial justice. 6. The ld. D.R. submitted that assessee is a chronic defaulter in presenting the case before the lower authorities and it has no respect for the various notices issued by the ld. AO/CIT(A). Hence, the appeals may be dismissed in limine without adjudicating the same as the delay was substantial and it is only due to the negligence of the assessee and delay shall not be condoned. 7. We have heard the rival submissions and perused the materials available on record. For clarity, we reproduce the delay in filing these appeals as below: 7.1 The above table shows the chronological events for delay in filing the appeals before ld. CIT(A). Thus, the contention of the ld. A.R. is that the delay was due to pursuing alternative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsulted the advocate and, on his advice, the assessee opted to file a writ before the High Court as the assessment orders were passed in violation of principles of natural justice and that was the opinion of the advocate that filing writ is the proper remedy available to the assessee. The assessee went by its legal advisor s advice and accordingly, filed the writs in these cases, where the writs are dismissed by High Court. Later, the assessee filed writ appeals against the writ orders. These writ appeals were also dismissed by Hon ble jurisdictional High Court. Once again, the assessee filed review petitions to recall order of writ appeals. Had it assessee got the right relief, then the assessee would not have faced the problem of filing appeals belatedly before ld. CIT(A). Thus, the reason explained by the assessee was that due to wrong advice of the advocates, appeals could not be filed in time as the assessee was pursuing alternative remedy, therefore, there is a reasonable cause in not filing the appeals in time. At this time, it is appropriate to mention the judgement of Hon ble Supreme Court in the case of Concord of India Insurance Company Ltd. Vs. Smt. Nirmala Devi Ors. Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le considering a similar issue the Apex Court in the case of Collector, Land Acquisition v. Mst. Katiji and Ors. (167 ITR 471) laid down six principles. For the purpose of convenience, the principles laid down by the Apex Court are reproduced hereunder: (1) Ordinarily, a litigant does not stand to benefit by lodging an appeal late (2) Refusing to condone delay can result in a meritorious matter being thrown at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. (3) 'Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational, commonsense and pragmatic manner. (4) When substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of a nondeliberate delay. (5) There is no presumption that delay is occasioned deliberately, or on account of culp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder was passed u/s 144 of the Act on 29.12.2016, against which assessee filed a writ petition No.33123 of 2017 (T-IT) before Hon ble High Court and assessee got a favourable order dated 8.11.2021, wherein the High Court quashed the assessment order and remitted the issue back to the file of ld. AO for reconsideration afresh in accordance with law within a period of 3 months from the date of receipt of order as in assessment yar 2011-12. The assessee has filed writ/writ appeals/review petitions before High Court, which are rejected by the High Court for these impugned assessment years involved herein before us, which made the assessee to file the appeals before ld. CIT(A), consequent to dismissal of writ/writ appeals/review petitions by Hon ble High Court. Even if we examine whether the reason stated by the assessee in condonation petitions are sufficient to condone the delay and there exists sufficient cause for not presenting the appeals within the period of limitation under the statute, the assessee must show that it was diligent in taking appropriate steps and the delay was caused notwithstanding with its due diligence. If it appears to be guilty of latches or negligence and do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng other remedies should be taken into consideration for condoning the delay. The Hon ble High Court held that there exists a reasonable for filing the appeals belatedly. 7.10 The next question may arise whether delay was excessive or inordinate. There is no question of any excessive or inordinate when the reason stated by the assessee was a reasonable cause for not filing the appeal. I have to see the cause for the delay. When there was a reasonable cause, the period of delay may not be relevant factor. In fact, the Madras High Court in the case of CIT vs. K.S.P. Shanmugavel Nadai and Ors. (153 ITR 596) considered the condonation of delay and held that there was sufficient and reasonable cause on the part of the assessee for not filing the appeal within the period of limitation. Accordingly, the Madras High Court condoned nearly 21 years of delay in filing the appeal. When compared to 21 years, 93 days cannot be considered to be inordinate or excessive. Furthermore, the Chennai Tribunal by majority opinion in the case of People Education and Economic Development Society (PEEDS) v. ITO (100 ITD 87) (Chennai) (TM) condoned more than six hundred days delay. It is pertinent to mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be condoned even though there was sufficient cause. The Apex Court did not say that longer period of delay should not be condoned. Condonation of delay is the discretion of the Court/Tribunal. Therefore, it would depend upon the facts of each case. In our opinion, when there is sufficient cause for not filing the appeal within the period of limitation, the delay has to be condoned irrespective of the duration/period. In this case, the non-filing of an affidavit by the Revenue for opposing the condonation of delay itself is sufficient for condoning the delay in filing the appeals before the CIT(A). 7.13 In view of the above, we are condoning the delay in filing the appeals before ld. CIT(A) belatedly and the appeals are admitted for adjudication by exercising the power u/s 253(5) of the Act. On merit, the similar issue raised before us has been considered by the jurisdictional High Court in assessee s own case in WP No.33123 of 2017 dated 18.11.2021 for the assessment year 2011-12, wherein observed the ld. AO has not properly or correctly considered or appreciated the objections or replies or documents submitted by the assessee and has proceeded to pass the impugned orders, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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