Daryapur Shetkari Sahakari Ginning & Pressing Factory Ltd. Vs ACIT (ITAT Nagpur)
Power to condone the delay with the Tribunal can only be exercised if it is specifically provided in the Statute itself. As we have already examined so far as Income-tax Act is concerned and in respect of Tribunal it is with regard to appeals and cross‑objections only, such power is given if the Tribunal is satisfied about the sufficiency of reasons about such delay as enshrined in clause (5) of section 253 of the Act. But so far as section 254(2) of the Act is concerned, there is no express power conferred on the Tribunal by the Legislature in the Statute where the Tribunal can condone the delay beyond the relevant period prescribed in the Statute therein.
Inordinate delay in filing of MAs is not a fit case for condonation, more so, because there is no specific provision in the realm of section 254(2) of the Act to provide for such condonation of delay in case of MAs.
FULL TEXT OF THE ITAT JUDGEMENT
There are three Miscellaneous Applications and corresponding three condonation of delay petitions filed before us by the assessee.
2. In this regard, at the very outset, ld. Counsel for the assessee invited our attention to the Writ Petition No.1529 of 2020 filed before the Hon’ble Bombay High Court, Nagpur Bench, Nagpur, wherein the operative para 4 reads as under:‑
“4. In view of above, we issue the following directions:
All the applications of the petitioner including application for condonation of delay and application for restoration of appeal shall be heard as soon as possible and disposed of in accordance with law by respondent no.3 latest by 24/3/2020, if the petitioner deposits with respondent no.2 an amount of rupees twenty-five lakhs latest by 23/3/2020. If any amount is determined to be in excess of the amount liable to be assessed to the petitioner under the scheme, same shall be refunded to the petitioner. The auction sale shall stand deferred for a period of eight weeks from the date of order.”
3. It is evident from the above directions of the Hon’ble High Court that these applications i.e. 3 MAs and 3 condonation of delay petitions of the assessee have to be heard by the Tribunal as soon as possible and dispose of within 24.03.2020, subject to the assessee depositing with the Tax Recovery Officer an amount of Rs.25 lakhs within 23.03.2020. The ld. Counsel for the assessee submitted that he will deposit the aforesaid amount within due date, however, requested us to hear these applications on the present date.
4. The ld. DR fairly conceded to the request of assessee.
5. After hearing both the parties and observing the directions of Hon’ble High Court, Nagpur Bench, we proceed to hear all the applications of the assessee filed before us. From the facts on record, it is evident that all the three MAs are time barred and there is delay of 2 years 11 months in filing these MAs. The order of Tribunal was pronounced on 01.02.2013 and MAs should have been normally filed within period of 4 years from 01.02.2013 i.e. on or before 01.02.2017. However, these applications were filed by the assessee on 30.12.2019 causing the said delay of 2 years 11 months. The ld. Counsel for the assessee wants us to condone this delay of 2 years 11 months u/s 254(2) of the Income-tax Act, 1961 (hereinafter referred to as ‘the Act). It is the argument of ld. Counsel that if the delay is condoned and the orders are recalled by allowing MAs of assessee, in that event they will go for Vivad Se Vishwas Scheme. The assessee placed heavy reliance on the decision of the Hon’ble Supreme Court in the case of Collector, Land Acquisition vs. MST. Katiji 85 Ors. in Civil Appeal No. 460 of 1987 reported in (1987) 167 ITR 471 (SC). Per contra, ld. DR submitted that the power conferred u/s 254(2) of the Act to the Tribunal is very specific and MAs should be filed within due period of 4 years and if there is any delay, the Legislature does not confer power of condonation in case of MA to the Tribunal. The ld. DR strongly referring to clause (5) of section 253 of the Act, submitted that it is in case of appeal or cross-objection only that the Tribunal even after expiry of relevant period, may admit an appeal or permit the filing of Memorandum of cross-objection, if it is satisfied that there is sufficient cause for not presenting the said appeal or cross-objection within the due time. But in case of section 254(2) of the Act i.e. MA, there is no such power or provision given to the Tribunal for condonation of delay if the application is filed after the relevant period.
6. Both the parties heard. We have perused MAs and condonation of delay petitions and have given considerable thought to the various judicial pronouncements placed before us. In this case of assessee, as evident from record, the order of Tribunal dated 01.02.2013 was duly served on the assessee on 26.02.2013. This service was done as evident from Form No.36 on the address given by assessee to the Tribunal, which is as follows:
“Daryapur Shetkari Sahakari Ginning & Pressing Factory Ltd., Banosa, Tq. Daryapur, Dist. Amravati”
7. However, in the condonation of delay petition, the assessee in paras 7 to 11 has contended that the said order of Tribunal was not at all served on the assessee and they were also not aware that any order was passed by the Tribunal till 30.12.2019. The ld. Counsel for the assessee could not give any convincing reasons for such an inordinate delay in filing these MAs irrespective of the fact that they were served with the order of Tribunal within due time. All the reasons recorded in the condonation of delay petition by the assessee are general in nature and they have referred to internal disputes between the members of assessee concerned. However, these reasons cannot categorically be said to be sufficient for not filing applications in due time. The law is very much supportive of a vigilant assessee and more so, for a bonafide one. In this case, the order of Tribunal was duly served on the assessee and they could not establish their bonafideness and the genuineness of such delay through any evidences on record filed before us. All while, the ld. Counsel has made oral submissions which in any way cannot be said to be genuine and bonafide. Even in the first round before the Tribunal, in the order pronounced on 01.02.2013 as evident from para 2 of the said order, no one had appeared either in person or on behalf of the assessee and therefore, ex-parte order was passed by the Tribunal dismissing the case of assessee for non-prosecution. We extract the relevant part of the order accordingly.
“2. During the course of hearing, from the careful perusal of the record, it is noticed that on 6.12.2012 none appeared on behalf of the assessee. Again notice was served on the assessee. However, none appeared on behalf of the assessee which means that assessee is not interested in prosecuting these appeals. Therefore, we find no reason to send another notice. In view of the facts and circumstances and in view of the decision in the case of Multiplan India Ltd. 38 ITD 320 (Del.) we dismiss the appeals of the assessee in limini. However, these appeals can be recalled if assessee files a miscellaneous application explaining the reason for the non-appearance on the date of hearing. We order accordingly.”
8. Therefore, the attitude of assessee is always to avoid the authorities and more so, the assessee is not vigilant about his own cause. Thereafter, the assessee comes up with certain reasons for late filing of MAs but all these reasons are not supported by any evidence and the assessee was simply sleeping over the order of Tribunal for more than 2 years. That further, the judgment of the Hon’ble Supreme Court which is strongly relied on by the assessee i.e. Collector, Land Acquisition vs. MST. Katiji 85 Ors. (supra) is substantially distinguishable on facts with that of the case of assessee. In the case before the Hon’ble Supreme Court, it is with regard to compensation in respect of acquisition of land for public purpose and there was delay of only 4 days. Per contra, in the present case of the assessee, it is with regard to MAs admission in spite of delay of 2 years 11 months and whether the Tribunal has got power to condone the said delay u/s 254(2) of the Act. We agree with the submissions of ld. DR highlighting provision of clause (5) of section 253 of the Act, wherein it is specific that in case of appeal or cross-objection, the Tribunal has power to condone the delay, if there is sufficient reasons provided before it, but on the other hand, in case of MAs u/s 254(2) of the Act, no such specific power has been provided to the Tribunal. Even at the time of hearing, ld. Counsel could not produce any order of the Hon’ble High Court or Hon’ble Apex Court where the delay u/s 254(2) of the Act has been condoned. We also find in the decision of Pune Tribunal in the case of TDK Electronics AG Vs. ACIT in ITA No.1810/PUN/2019 for A.Y. 2015-16, order dated 26.02.2020, wherein it has been held that power to condone the delay with the Tribunal can only be exercised if it is specifically provided in the Statute itself. As we have already examined so far as Income-tax Act is concerned and in respect of Tribunal it is with regard to appeals and cross‑objections only, such power is given if the Tribunal is satisfied about the sufficiency of reasons about such delay as enshrined in clause (5) of section 253 of the Act. But so far as section 254(2) of the Act is concerned, there is no express power conferred on the Tribunal by the Legislature in the Statute where the Tribunal can condone the delay beyond the relevant period prescribed in the Statute therein. This view is fortified in the decision of Pune Bench Tribunal and the operative para is extracted as under:-
“3. We have heard the rival submissions and gone through the relevant material on record. Section 144C of the Act with the marginal note ‘Reference to dispute resolution panel’ provides through sub-section (1) that the AO, in the first instance, shall forward a draft of the proposed order of the assessment to the eligible assessee if he proposes to make any variation in the income returned. at-section (2) of section 144C states that: ‘On receipt of the draft order, the eligible assessee shall, within thirty days of the receipt by him of the draft order, – (a) …………. . (b) file his objections, if any, to such variation with, -(i) the Dispute Resolution Panel; and (ii) the Assessing Officer’. The Income-tax (Dispute Resolution Panel) Rules, 2009 lay down the procedure for filing objections through Rule 4. at-rule (1) provides that ‘the objections, if any, of the eligible assessee to the draft order may be filed in person or through his agent within the specified period in Form 35A’. These rules do not spell out any meaning of the term ‘specified period’ for filing of Form 35A and as such, the term takes its genesis from section 144C(2) of the Act. Ergo, it becomes overt that an assessee, on receipt of the draft order, is obliged to file objections, if any, to the variation in the income before the DRP/AO within 30 days of the receipt of the draft order.
4. Before proceeding further, let us have a quick look at the following relevant dates of the case under consideration, which are material for our decision:-
