9911796707
TMI Blog2022 (6) TMI 1496X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Ministry of Law and Justice on 16.03.2020. As noted that the draft Memorandum of Appeal was settled by the senior standing counsel for the Income Tax department as early as on 23.09.2019. Therefore, it appears that the delay has occasioned after the application for condonation of delay was approved and returned to the Ministry of Law and Justice on 16.03.2020. From 15.03.2020, the period of limitation stood excluded. Therefore, we are of the view that by rejecting the application for condonation of delay would result in prejudice as substantial questions of law which have been suggested for consideration have already been entertained by this Court in other appeals filed in respect of the other assessees. Therefore, when technical considerations are pitted against the substantial justice, we are inclined to lean in favour of the appellant department by condoning the delay. The decisions which have been referred to are not decisions which are under the provisions of the Income Tax Act nor in any of those decisions, the legal issue is yet to be decided and pending before the High Court. Therefore, we would be well justified in exercising our discretion in condoning the delay. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by Mr. Agnibesh Sengupta and Ms. Nairanjana Ghosh for the respondent. 3. On 11.10.2019, the junior Government counsel of the Ministry of Law and Justice sent the Memorandum of Appeal to the assessing officer for approval. On 06.11.2019, the assessing officer vetted the draft Memorandum of Appeal. On 02.03.2020, the junior Government counsel, Ministry of Law and Justice requested the PCIT to send the file for drafting the application for condonation of delay. On 05.03.2020, the file was again sent to the junior Government counsel of the Ministry of Law and Justice for drafting the application for condonation of delay. The application was drafted on 07.03.2020 and approved by the senior standing counsel for the Income Tax department and returned to the Ministry of Law and Justice on 16.03.2020. Ultimately the appeal was filed on 04.01.2021. In this process the delay of 535 days has occurred. 4. The department would contend that effective steps were taken for filing the appeal but owing to circumstances beyond their control, they were unable to file the appeal more particularly on account of the COVID pandemic. By placing reliance on the decision of the Hon ble Supreme Court in suo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 29.09.2019, 27.09.2019 to 11.10.2019, 11.10.2019 to 06.11.2019, 06.11.2019 to 02.03.2020 and 16.03.2020 to 04.01.2021 has not been explained and in such circumstances if the delay is condoned it will cause grave injustice to the assessee. 6. The department had filed a reply to the affidavit-in-opposition explaining as to why the concerned officer did not respond to the information sought for by the junior standing counsel for the department which we had noted in our order dated 25.04.2022. Further it is stated that in so far as the order passed by the tribunal for the assessment year 2008-09 in the assessees own case the appeal was not filed as the tax effect for the said year was Rs. 30,42,10 and the same being below the threshold limit prescribed by the CBDT for filing the appeals under Section 260 A of the Act, it was suggested that no appeal is required to be preferred for the said assessment year. Further the learned junior standing counsel submitted that the language adopted by the assessee in the affidavit-in-opposition is far from being satisfactory and warranted allegations have been made against the counsels by using strong words and expression. 7. We had considered t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred for the other side cannot claim to have vested right injustice being done because of non-deliberate delay; there is no presumption the delay is occasioned deliberately or on account of the culpable negligence or on account of mala fides, a litigant does not stand to benefit by resorting to delay in fact, he runs a serious risk and it must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 9. The Hon ble Supreme Court also relied upon the decision in G. Ramegowda Versus Land Acquisition Officer [(1988) 2 SCC 142] wherein the Hon ble Supreme Court held that in litigations to which the Government is a party there is yet another aspect which perhaps cannot be ignored and if appeals brought by the Government are lost for such defaults, no person is individually affected but what in the ultimate analysis suffers is the public interest. The decisions of the Government are collective and the institutional decisions and do not share the characteristics of decisions of private individuals. It was further held that in assessing what in a particular case co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the highest court has dismissed the appeal. 11. We have set out the above decisions to remind ourselves as to under what circumstances the Court can exercise its discretion while considering an application under Section 5 of the Limitation Act. It is settled legal principle that the facts of each case have to be considered before applying the legal principle enunciated in the various decisions of the Hon ble Supreme Court. The decisions rendered by the Hon ble Supreme Court were not appeals arising under the provisions of the Income Tax Act, 1961. The appeal filed by the department before us is under Section 260 A of the Income Tax Act, 1961 where under we are required to consider as to whether any substantial question of law arises for consideration. It is no doubt true that the explanation offered by the department while seeking for condonation of delay does not explain each and every days delay. The period for which no explanation has been offered has been mentioned by the assessee in the affidavit-in-opposition. The fact that from 15.03.2020 onwards the country was under lock down cannot be lost sight. The revenue seeks to rely upon the decision of the Hon ble Supreme Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en circulated to the junior Government counsel of the Ministry of Law and Justice, standing counsel for the department etc. and ultimately the draft of the condone delay petition was approved and returned to the Ministry of Law and Justice on 16.03.2020. To be noted that the draft Memorandum of Appeal was settled by the senior standing counsel for the Income Tax department as early as on 23.09.2019. Therefore, it appears that the delay has occasioned after the application for condonation of delay was approved and returned to the Ministry of Law and Justice on 16.03.2020. From 15.03.2020, the period of limitation stood excluded. Therefore, we are of the view that by rejecting the application for condonation of delay would result in prejudice as substantial questions of law which have been suggested for consideration have already been entertained by this Court in other appeals filed in respect of the other assessees. Therefore, when technical considerations are pitted against the substantial justice, we are inclined to lean in favour of the appellant department by condoning the delay. The decisions which have been referred to are not decisions which are under the provisions of the In ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
