Condonation of Delay – Requirements of a valid AFFIDAVIT in support of delay condonation application

In a case of Kunal Surana vs. ITO (ITAT Mumbai) an appeal for condonation of delay was rejected . Reason:- The affidavit in support of delay condonation was very badly drafted. (Read  the bottom part of this compilation for explanation of the reasons. Only affidavit part of the order is discussed in this article. )

The assessee filed an appeal before the CIT(A) which was delayed by 4 months. The delay was explained to have been caused by the fact that the assistant of the Authorized Representative kept the papers in a drawer and overlooked them till a penalty notice was received. The CIT(A) declined to condone the delay and dismissed the appeal. The assessee filed an appeal before the Tribunal and also filed an affidavit of the Authorized Representative in support of the application for condonation of delay. The Tribunal dismissed the application and the appeal because the affidavit produced by the AR is not a valid affidavit. 

Affidavit before Appellate Authorities are routinely filed in order to prove a fact which otherwise can’t be proved in the absence of some other tangible evidence.

Rule 10 of the ITAT Rules 1963 provides that where a fact which cannot be borne out by, or is contrary to, the record is alleged, it shall be stated clearly and concisely and supported by a duly sworn affidavit.

SO WHAT IS AN AFFIDAVIT  ?

An Affidavit is statement of facts which is sworn to (or affirmed) before an officer who has authority to administer an oath (e.g. a notary public). The person making the signed statement (affiant) takes an oath that the contents are, to the best of their knowledge, true. It is also signed by a notary or some other judicial officer that can administer oaths, affirming that the person signing the affidavit was under oath when doing so. These documents are valuable to presenting evidence in court when a witness is unavailable to testify in person. Affidavits may preserve the testimony of persons who are unable to appear in court due to illness, incarceration, moving out-of-state, death, etc. Judges frequently accept an affidavit instead of the testimony of the witness and are used in place of live testimony in many circumstances . In executing a sworn statement , a notary guarantees that the signer personally appeared before the notary, was given an oath or affirmation by him attesting to the truthfulness of the document, and signed the document in the notary’s presence. It is always important that the notary positively identify a signer as he is certifying that the signer attested to the truthfulness of the document contents under penalty of perjury. However, such sworn statements do not prove a document is true, legal, valid or enforceable.

The Officer, authorised to administer oaths shall before certifying the affidavit, satisfy himself as to the identity of the declarant who may be either known to him personally or identified before him by a person whom he personally knows, or whose identity is duly established to the satisfaction of the Officer by any of the following documents, namely Passport, Driving License, Voters identity Card, PAN Card, or Photo Identity Card issued by State/Central Government. The manner in which Every Officer administering an oath in such a case shall add the following words after the words, “Solemnly affirmed before me,” namely, “by” …” who is identified before me by” …. or “whom I personally know.”

Every affidavit containing any statement of facts shall be divided into paragraphs, and every paragraph shall be numbered consecutively, and as nearly as may be, shall be confined to a distinct portion of the subject. In every affidavit The declarant shall state

a)  what paragraphs or portions of his affidavit he swears of solemnly affirms to from his own knowledge and

b)  what paragraphs or portions he swears or solemnly affirms to on his own belief, stating the grounds of such belief.

When an affidavit is based on the affiant’s information and belief, it must state the source of the affiant’s information and the grounds for the affiant’s belief in the accuracy of such information. This permits the court to draw its own conclusions about the information in the affidavit.

An affidavit based on the knowledge of the affiant is accorded more weight than one based on information and belief. When admissible, affidavits are not conclusive evidence of the facts stated therein.

Distinctions

An affidavit is voluntarily made without any cross-examination of the affiant and, therefore, is not the same as a deposition, a record of an examination of a witness or a party made either voluntarily or pursuant to a subpoena, as if the party were testifying in court under cross-examination. A pleading—a request to a court to exercise its judicial power in favor of a party that contains allegations or conclusions of facts that are not necessarily verified—differs from an affidavit, which states facts under oath.

Basis

An affidavit is based upon either the personal knowledge of the affiant or his or her information and belief. Personal knowledge is the recognition of particular facts by either direct observation or experience. Information and belief is what the affiant feels he or she can state as true, although not based on firsthand knowledge.

The Affiant

Any person having the intellectual capacity to take an oath or make an affirmation and who has knowledge of the facts that are in dispute may make an affidavit. There is no age requirement for an affiant. As long as a person is old enough to understand the facts and the significance of the oath or affirmation he or she makes, the affidavit is valid. A criminal conviction does not make a person incapable of making an affidavit, but an adjudication of Incompetency does.

Someone familiar with the matters in question may make an affidavit on behalf of another, but that person’s authority to do so must be clear. A guardian may make an affidavit for a minor or insane person incapable of doing so. An attorney may make an affidavit for a client if it is impossible for the client to do so. When necessary to the performance of duties, a Personal Representative, agent, or corporate officer or partner may execute an affidavit that indicates the capacity in which the affiant acts.

A court cannot force a person to make an affidavit, since, by definition, an affidavit is a voluntary statement.

The Taker of the Affidavit

Any public officer authorized by law to administer oaths and affirmations—such as city recorders, court clerks, notaries, county clerks, commissioners of deeds, and court commissioners—may take affidavits. Justices of the peace and magistrates are sometimes authorized to take affidavits. Unless restricted by state law, judges may take affidavits involving controversies before them.

The Oath or Affirmation

Unless otherwise provided by statute, an oath is essential to an affidavit. The statement of the affiant does not become an affidavit unless the proper official administers the oath.

Contents

There is no standard form or language to be used in an affidavit as long as the facts contained within it are stated clearly and definitely. Unnecessary language or legal arguments should not appear. Clerical and grammatical errors, while to be avoided, are inconsequential.

The affidavit usually must contain the address of the affiant and the date that the statement was made, in addition to the affiant’s signature or mark. An affiant is strictly responsible for the truth and accuracy of the contents of the affidavit. If false statements are made, the affiant can be prosecuted for perjury.

Functions

Business Affidavits are used in business whenever an official statement that others might rely upon is needed. Statements of the financial stability of a corporation, the financial conditions of a person applying for credit are examples of affidavits used in the commercial world.

Judicial Proceedings Affidavits serve as evidence in civil actions and criminal prosecutions in certain instances. They are considered a very weak type of evidence because they are not taken in court, and the affiant is not subject to cross-examination. Their use is usually restricted to times when no better evidence can be offered. If a witness who has made an affidavit is not available to testify at a trial, his or her affidavit may be admitted as evidence. If the witness is present, his or her affidavit is inadmissible except when used to impeach the witness’s testimony, or to help the witness with past recollection of facts.

Affidavits are also used as evidence in ex parte proceedings such as an order to show cause. The expeditious nature of such proceedings is considered to substantially outweigh the weak Probative value of the affidavits. In addition, there is normally a subsequent opportunity in the course of litigation for the opposing party to refute the affidavits or cross-examine the affiants.

Administrative Proceedings Affidavits are frequently used in administrative and Quasi-Judicial proceedings as evidence when no objection is made to their admission and there is an opportunity for cross-examination.

In Indian Law although an affidavit may be taken as proof of the facts stated therein, the Courts have no jurisdiction to admit evidence by way of affidavit. Affidavit is treated as “Evidence” within the meaning of Section 3 of the Evidence Act. However, it was held by the Supreme Court that an affidavit can be used as an evidence only if the Court so orders for sufficient reasons. Therefore an affidavit cannot ordinarily be used as evidence in absence of specific order of the Court.

Normally in Courts of law except in case of original petitions, verified petitions, all interlocutory applications are supported by affidavits. Apart from it certain facts under certain statutory provisions can be proved by affidavits. It is no doubt true that affidavits are not included in the definition of evidence under section 3 of the Indian Evidence Act. An affidavit per se does not become evidence in the Court in Suits. An affidavit must comply with the requirements of law and an affidavit which does not comply with the requirements of law is not an affidavit at all in the eye of law.

Now let us see what was wrong in the affidavit filed before the ITAT in the above case🙁as stated by the ITAT)

1)   There is no verification appended on it.

2)   There is no mention as to which of the paras are true to the knowledge of the deponent and which of the paras of the affidavit are true to his belief.

3)   The affidavit is also not a duly sworn affidavit as required under Rule 10 of the ITAT Rules 1963 because it has not been properly endorsed by the notary regarding the oath of affirmation before him by the executant of the affidavit.

4)   The notary has put his signatures under his name seal but there is no mention whether the oath was administered to the signatory or if done so, when and where it was administered.

5)    Even words “Sworn before me” are missing.

If the affidavit does not certify or endorse the fact that oath has been administered, it remains a waste paper. On merits, the case is one of gross negligence and inaction on the part of the assessee and the AR.

The ITAT therefore rejected the application for condonation of delay stating “Though courts adopt liberal view while condoning delay on the principle that technicalities should not prevail over the cause of justice, litigants should not take the courts for granted.

What can be the reason for such a harsh decision ?

The guess is not far from the truth. While delivering such a decision, the judges must have in mind the fact that they are dealing with highly educated persons with sufficient knowledge of the law of the issue at hand. While the AR may be a professional like a CA, CS, Advocate etc, the other party to the affidavit is a person of high legal qualification with enough exposure to be appointed as a Notary public. If such persons are so causal in their approach to dispensation of justice, then they rightly deserve to be dealt with in the manner dealt with in this case. But then the moot point that arises is:- Why should an assessee, who is generally not aware of nor can he be expected to be so, of the rules, regulations, procedures etc. to be adopted while pursuing original or appellate jurisdiction to get justice. The Higher Court , when approached in appeal, should provide some guidelines such that an innocent assessee does not suffer for the breach of law by the experts-in-law.

In order to avoid such lapses an affidavit must be drafted considering the points raised by the ITAT. A draft of an illustrative Affidavit is provided hereinunder. The ld. readers are requested to contribute to this article by pointing out mistakes in the Draft affidavit and submitting their own Drafts which they feel are better than the draft provided in this article.

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BEFORE THE HON’BLE INCOME TAX APPELLATE TRIBUNAL(ITAT)

MUMBAI BENCH

In the matter of ABC for the Assessment Year 2010-11.

Affidavit For Condonation Of Delay In Filing The Appeal Against Assessment Order Of Commissioner of Income Tax Ward/Range xxxxx

1)   I, ABC aged about 45 years,  son of XYZ identified by PAN XXXXXXXXXX at present residing at Address_____________________________do solemnly affirm and state on oath as uder:

2)   That I received an Intimation for the assessment year 2010-11 under section 143(1) of the Income Tax Act 1962 on Date__________

3)   That as per the said intimation I found that my returned income has been enhanced by Rs. ________and a consequential demand of Rs. __________has been made against me.

4)   That I was advised by my legal consultant that the said intimation is factually incorrect and an application for rectification under section 154 shall be filed.

5)   That in response to the said application for rectification I received an intimation on __________informing me of the rejection of the application on the ground that the mistake in the intimation u/s 143(1) is not apparent from records.

6)   That I was advised by the legal consultant to file an appeal before the Hon’ble ITAT for relief but the appeal has already become barred by time  limitation. Nevertheless the appeal was filed before this Hon’ble ITAT on date________accompanied by an application for condonation of delay as provided under section 5 of the LIMITATION ACT, 1963

7)   That in this way there is a delay of  90 days for which an application under Section 5 of the Limitation Act has been filed alongwith memorandum of appeal.

8)   That delay in filing the appeal is because of a genuine belief of the applicability of a particular provision of the Income Tax Act 1962 which was not accepted by the Original Authority.

9)   That I had no intention to jeopardize the interest of the revenue by delaying the filing of the appeal.

VERIFICATION

I, ABC, the above named deponent do hereby verify that the contents of para 1 to 5 are true to the best of my knowledge and the contents of para 6 to 9 are true to the best of my belief.

ATTESTATION

I _________Advocate & Notary do hereby affirm that Mr. ABC, the Deponent herein, identified by his PAN XXXXXXXXXX was administered an oath, under penalty of perjury, as to the truth of the contents of this affidavit.

Solemnly affirmed and Sworn before me,_________Advocate & Notary, by ABC  who is identified before me by his PANXXXXXXXXXX

Date________

Place__________

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Note: This compilation is meant only for academic purpose and is not meant to be used in any legal cause casting any liability on the compiler.

By: CA Lalit Munoyat | B.Com(Hons), CS, FCA, DISA | 98201 93508   | [email protected]

Republished with Amendments.