Brief of the Case
Calcutta High Court held In the case of CIT vs. M/s Golden Corporation Services that it appears from the grounds of the appeal that appellant did not pursue the matter seriously. There is no allegation or any proof of the fact that the appellant was prevented by any cause far less sufficient cause from preferring the appeal within the prescribed period of limitation. There is as such no reason why the delay should be condoned. The application for condonation of delay is therefore dismissed.
Facts of the Case
In this case appeal was filed after the expiry of the prescribed period of limitation, but no copy of the application for condonation of delay was served.
Contention of the Assessee
The learned counsel for the assessee submitted that the appeal was filed after expiry of the prescribed period of limitation, but no application for condonation of delay was served. He also submitted that, in any event, the appeal is not maintainable because the tax effect is less than Rs.10 lacs. In support of his submission he relied on a judgment in the case of CIT vs. Ranka and Ranka, reported in (2013) 352 ITR 0121. He also cited a Division Bench judgment dated 3rd May, 2011 of this Court in the case of CIT vs. Ceramic Decorator (P) Ltd. passed in ITAT No. 83 of 2011 in which it was held that appeal has been filed by violating the Instructions issued by the CBDT as tax effect of the present appeal is less than Rs. 10 lacs, which was binding upon the appellant in view of the provisions contained in Section 268A of the Income Tax Act..
Contention of the Revenue
The ld counsel of the revenue submitted that Gujrat High Court in the case of CIT vs. Shambhubhai Mahadev Ahir (Tax Appeal No.2213 of 2010 dated 12th September, 2012) held that the earlier view expressed by a Division Bench of Gujrat High Court in the case of Suresh Chandra Durgaprosad Khatod holding that the instructions of 2011 would also apply to pending appeals required reconsideration and the matter was referred to a larger Bench. The larger Bench held that the instructions of 2011 did not apply to pending appeals.
Held by High Court
It is well settled that subsequent events can be taken note of by the Court both for the purpose of doing justice between the parties and for the purpose of shortening the litigation. Apex Court in the case of Pasupuleti Venkateswarh vs. The Motor & General Traders reported in (1975) 1 SCC 770 in which it was held that Equity justifies bending the rules of procedure, where no specific provision or fair play is violated, with a view to promote substantial justice – subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the Trial Court. if the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rullings on this point are legion the events as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed.
In the case of Commissioner of Central Excise vs. Mysore Electrical Industries Ltd., reported in (2006) 12 SCC 448 in which a contention was raised that a beneficial circular in excise matters has to be applied retrospectively and an oppressive circular has to be applied prospectively, was accepted by the apex court.
There are weighty reasons why one can say that the instruction of 2011 is also applicable to the pending appeal. But, in current case a final opinion on the question is not essential because the appeal, in this case filed in the year 2010, was a still born appeal because it was barred by limitation. The appellant did not even serve a copy of the application under Section 5 of the Limitation Act for condonation of delay. The matter appeared before us as indicated earlier on 9th April, 2015. Till then no steps were taken. The appellant as a matter of fact woke up after counsel of the assessee was requested by this Court to give a notice to the learned Advocate for the appellant. Thereafter, copy of the application for condonation has been served upon him.
Accordingly application for condonation of delay is rejected & appeal of the revenue dismissed.
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