Case Law Details
The Puttur Co-operative Town Bank Limited Vs Director of Income-tax (Intelligence & Criminal Investigation) (ITAT Bangalore)
There is a delay of more than 700 days in filing the appeals before the CIT(A) (except for assessment year 2008-2009, wherein the delay is 651 days). The reasons stated for belated filing of the appeals before the CIT(A) is that by mistake the assessee has filed appeals as against orders passed u/s 271FA of the I.T. Act before the ITAT and the ITAT dismissed the appeal vide order dated 27.07.2018 stating that the appeal does not lie to the ITAT but to the CIT(A). However, we find that the assessee has not explained the delay in filing the appeal before the CIT(A) from the date of receipt of order passed by the ITAT. In this context, it is relevant to note that the ITAT passed the order on 27.07.2018 and the appeals were instituted before the CIT(A) only on 09.05.2019, i.e., nearly 10 months from the date of receipt of the order of the ITAT.
The law assists those who are vigilant, not those who sleep over their rights. This principle is embodied in the dictum : vigilantibus non dormientibus jura subveniunt. The delay cannot be condoned simply because the assessee’s case is hard and calls for sympathy or merely out of benevolence to the party seeking relief in granting the indulgence and to the party seeking relief. In granting the indulgence and condoning the delay, it must be proved beyond the shadow of doubt that the assessee was diligent and was not guilty of negligence, whatsoever. The sufficient cause within the contemplation of the limitation provision must be a cause which is beyond the control of the party invoking the aid of the provisions. The cause for the delay in filing the appeal, which by due care and attention, could have been avoided, cannot be a sufficient cause within the meaning of the limitation provision. Where no negligence, or inaction, or want of bona fides can be imputed to the assessee, a liberal construction of the provisions has to be made in order to advance substantial justice. Seekers of justice must come with clean hands.
In the instant case, the assessee has not given any reasons in the condonation petition for condoning the delay of 10 months for filing the appeal before the CIT(A) (i.e., from the date of receipt of ITAT’s order). When the assessee does not give any reasons for the delay of 10 months from the date of receipt of the ITAT order, it is only negligence / inaction on the part of the assessee in fulfilling the statutory obligations. Hence, there is no sufficient / reasonable cause for condoning the delay of more than 700 days in filing appeals before the CIT(A). Therefore, we confirm the orders of the CIT(A). It is ordered accordingly.
FULL TEXT OF THE ORDER OF ITAT BANGALORE
These appeals at the instance of the assessee are directed against nine separate orders of the CIT(A). (The impugned orders of the CIT(A) were disposed of in November 2021). The orders of the CIT(A) arise out of orders imposing penalty u/s 271FA of the I.T.Act. The relevant assessment years are 2005-2006 and 2007-2008 to 2014-2015.
2. At the threshold, we noticed that the CIT(A) dismissed the appeals filed by the assessee in limine without condoning the delay. There was a delay of 651 days to 742 days in filing the appeals before the CIT(A). The reasons stated in the condonation petition filed by the assessee before the CIT(A) is identical for all the assessment years. The same reads as follows:-
“The order of Director of Income Tax (Intelligence and Criminal Investigation, Bangalore was received by Appellant on 24.04.2017 and the Appellant has filed the appeal before the Hon’ble ITAT against the said order and the Appeal was pending before the ITAT and the ITAT was disposed and passed order stating the appeal was not maintainable before ITAT, first the appeal has to be filed before the CIT(A). Accordingly there was delay in filing the appeal before the CIT(A), the Appellant prays for the condonation of delay in filing the appeal before the CIT(A), the delay was not intentionally made, accordingly it is prayed.”
3. The CIT(A) rejected the plea of the assessee to condone the delay and dismissed the appeal in limine. It was held by the CIT(A) that there are inordinate delay of more than 700 days in filing the appeals before him and the delay occurred out of negligence and inaction on the part of the assessee. The CIT(A) concluded that there is no sufficient / reasonable cause for condonation of delay.
4. Aggrieved by the orders of the CIT(A), the assessee has filed these appeals before the Tribunal. The learned AR, on requested from the Bench, had produced copy of the application for condonation of delay submitted before the CIT(A). The learned AR has reiterated the submission raised before the CIT(A) as regards the condonation of delay. The learned AR relied on the judgment of the Hon’ble Bombay High Court in the case of Anatek Services Pvt. Ltd. v. ACIT in ITA No.102 of 2018 (judgment dated 11th February, 2022).
5. The learned Departmental Representative strongly supported the order of the CIT(A).
6. We have heard rival submissions and perused the material on record. There is a delay of more than 700 days in filing the appeals before the CIT(A) (except for assessment year 2008-2009, wherein the delay is 651 days). The reasons stated for belated filing of the appeals before the CIT(A) is that by mistake the assessee has filed appeals as against orders passed u/s 271FA of the I.T. Act before the ITAT and the ITAT dismissed the appeal vide order dated 27.07.2018 stating that the appeal does not lie to the ITAT but to the CIT(A). However, we find that the assessee has not explained the delay in filing the appeal before the CIT(A) from the date of receipt of order passed by the ITAT. In this context, it is relevant to note that the ITAT passed the order on 27.07.2018 and the appeals were instituted before the CIT(A) only on 09.05.2019, i.e., nearly 10 months from the date of receipt of the order of the ITAT.
6.1 The law assists those who are vigilant, not those who sleep over their rights. This principle is embodied in the dictum : vigilantibus non dormientibus jura subveniunt. The delay cannot be condoned simply because the assessee’s case is hard and calls for sympathy or merely out of benevolence to the party seeking relief in granting the indulgence and to the party seeking relief. In granting the indulgence and condoning the delay, it must be proved beyond the shadow of doubt that the assessee was diligent and was not guilty of negligence, whatsoever. The sufficient cause within the contemplation of the limitation provision must be a cause which is beyond the control of the party invoking the aid of the provisions. The cause for the delay in filing the appeal, which by due care and attention, could have been avoided, cannot be a sufficient cause within the meaning of the limitation provision. Where no negligence, or inaction, or want of bona fides can be imputed to the assessee, a liberal construction of the provisions has to be made in order to advance substantial justice. Seekers of justice must come with clean hands.
6.2 The judgment of the Hon’ble Bombay High Court in the case of Anatek Services Pvt. Ltd. v. ACIT (supra) relied on by the AR will be of no assistance to the assessee on the facts of the instant case. In the case considered by the Hon’ble Bombay High Court, on receipt of penalty orders, the assessee in order to buy peace and end the litigation, had paid penalty amount in full, but later when prosecutions were initiated, the assessee decided to challenge the penalty orders. The facts of the Hon’ble Bombay High Court judgment are totally different from the facts of the instant case. In the instant case, the assessee has not given any reasons in the condonation petition for condoning the delay of 10 months for filing the appeal before the CIT(A) (i.e., from the date of receipt of ITAT’s order). When the assessee does not give any reasons for the delay of 10 months from the date of receipt of the ITAT order, it is only negligence / inaction on the part of the assessee in fulfilling the statutory obligations. Hence, there is no sufficient / reasonable cause for condoning the delay of more than 700 days in filing appeals before the CIT(A). Therefore, we confirm the orders of the CIT(A). It is ordered accordingly.
7. In the result, the appeals filed by the assessee are dismissed.
Order pronounced on this 24th day of March, 2022.
