Case Law Details
Intent Infraprojects Pvt. Limited Vs ITO (ITAT Kolkata)
ITAT Kolkata held that condonation of delay of 927 days in filing of the appeal not granted as explanation available in the affidavit is totally vague and not specific. Further, assessee neither complied with a single notice nor submitted any details.
Facts- A perusal of the impugned order would suggest that there was no compliance at the end of the assessee either before AO or before CIT(A). It has filed its return of income on 21.03.2013 declaring total income at NIL. Its case was selected for scrutiny assessment and a notice under section 143(2) was issued and served upon the assessee. AO found that assessee has received huge share capital and accordingly he treated such a credit entries as bogus.
CIT(A) has discussed the issue a little bit in detail and concurred with AO.
The appeal before the Tribunal is time-barred by 927 days. The assessee has not filed any application for condonation of delay as contemplated in sub-section (5) of section 253 of the Income Tax Act.
Conclusion- Held that there is no explanation at the end of the assessee. The explanation available in this affidavit is totally vague and not specific. This explanation is to be appreciated in the light of the conduct of the assessee before the Revenue Authorities below, where the assessee neither comply a single notice nor submitted any details. Therefore, we do not deem it fit to condone the delay in filing this appeal. This appeal is dismissed being time-barred.
FULL TEXT OF THE ORDER OF ITAT KOLKATA
The assessee is in appeal before the Tribunal against the order of ld. Commissioner of Income Tax (Appeals)-3, Kolkata dated 25.04.2019 passed for A.Y. 2012-13.
2. The assessee has taken two grounds of appeal, out of which Ground No. 2 is general in nature, which does not call for recording of any finding.
3. In Ground No. 1, the assessee has pleaded that ld. CIT(Appeals) has erred in confirming the addition of Rs.54,50,86,200/-, which was added by the ld. Assessing Officer with the aid of Section 68 on account of unexplained cash credit.
4. In response to the notice of hearing, no one has come present on behalf of the assessee. The Tribunal has issued number of notices, out of which four notices returned back with the postal remark “no such Company is available on the given address”. One Shri Bisweswar Ghosh had been filing adjournment application on behalf of the assessee but failed to appear before the ITAT. The Tribunal fed up with the delaying practice adopted at the end of the assessee and passed the following order on 16.0 1.2023:-
5. No one has come present today. A perusal of the impugned order would suggest that there was no compliance at the end of the assessee either before the ld. Assessing Officer or before the ld. CIT(Appeals). It has filed its return of income on 21.03.2013 declaring total income at NIL. Its case was selected for scrutiny assessment and a notice under section 143(2) was issued and served upon the assessee. The ld. Assessing Officer found that assessee has received huge share capital and accordingly he treated such a credit entries as bogus.
6. The ld. CIT(Appeals) has discussed the issue a little bit in detail and concurred with the ld. Assessing Officer.
7. The appeal before the Tribunal is time-barred by 927 days. The assessee has not filed any application for condonation of delay as contemplated in sub-section (5) of section 253 of the Income Tax Act, but an affidavit deposed by one Shri Sumanta Chowdhury has been filed and such affidavit reads as under:-
8. We have duly considered the rival contentions and gone through the record carefully. Sub-section 5 of Section 253 contemplates that the Tribunal may admit an appeal or permit filing of memorandum of cross-objections after expiry of relevant period, if it is satisfied that there was a sufficient cause for not presenting it within that period. This expression sufficient cause employed in the section has also been used identically in sub-section 3 of section 249 of Income Tax Act, which provides powers to the Id.Commissioner to condone the delay in filing the appeal before the Commissioner. Similarly, it has been used in section 5 of Indian Limitation Act, 1963. Whenever interpretation and construction of this expression has fallen for consideration before Honble High Court as well as before the Honble Supreme Court, then, Honble Court were unanimous in their conclusion that this expression is to be used liberally. We may make reference to the following observations of the Hon’ble Supreme court from the decision in the case of Collector Land Acquisition Vs. Mst. Katiji & Others, 1987 AIR 1353:
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 out 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 common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, 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 non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of 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.
6. 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. Similarly, we would like to make reference to authoritative pronouncement of Honble Supreme Court in the case of N. Balakrisknan Vs. M. Krishnamurtky (supra). It reads as under:
“Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words “sufficient cause” under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi lain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss”.
10. We do not deem it necessary to re-cite or recapitulate the proposition laid down in other decisions. It is suffice to say that the Honble Courts are unanimous in their approach to propound that whenever the reasons assigned by an applicant for explaining the condonation of delay, then such reasons are to be construed with a justice oriented approach.
11. In the light of above, we have examined the report carefully. The affidavit of Shri Sumanta Chowdhury is totally silent when the assessee has received the order of the ld. CIT(Appeals). According to the assessee, the impugned order was passed ex-parte and it did not receive the order. The simple reason is that on the given address, nobody is receiving the post from the authorities. On that very address, four notices issued by the Tribunal returned back with the Postal remark “no such Company is available on the given address”. The assessee thereafter has submitted that it has handed over the papers to Mr. Debasish Roy, Chartered Accountant, who expired suddenly. It is to be appreciated that death certificate of Shri Roy has been placed on record and he expired on 15th September, 2019. COVID Pandamic strucked in the month of April, 2020. There is a huge delay from September, 2019 to March, 2020. There is no explanation at the end of the assessee. The explanation available in this affidavit is totally vague and not specific. This explanation is to be appreciated in the light of the conduct of the assessee before the Revenue Authorities below, where the assessee neither comply a single notice nor submitted any details. Therefore, we do not deem it fit to condone the delay in filing this appeal. This appeal is dismissed being time-barred.
12. In the result, the appeal of the assessee is dismissed.
Order pronounced in the open Court on 24th January, 2023.
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