Case Law Details
Smt. Santra Vs ITO (ITAT Jaipur)
ITAT Jaipur held that the litigant cannot be permitted to throw the entire blame on the head of the consultant or Advocate and disown himself or herself at any time to seek relief for condonation of delay. Accordingly, cost imposed for procedural delay.
Facts- Assessee preferred an appeal with delay of 135 days as regard impugned penalty order and delay of 317 days as regards impugned order pertaining to quantum assessment. Notably, the appellant claimed herself to be an illiterate house wife, and pleaded that when she received show cause notice in respect of proceedings under section 271(1)(c), she delivered the said notice to her consultant, but, he kept the same with himself and did not submit any response thereto.
Conclusion- It is well settled that the litigant owes a duty to be vigilant of own rights and is expected to be equally vigilant about the proceedings initiated or to be initiated at her instance. The litigant must remain in constant touch with the authorized representative. Therefore, the litigant cannot be permitted to throw the entire blame on the head of the consultant or Advocate and disown himself or herself at any time to seek relief for condonation of delay. Having regard to all the facts and circumstances, and in the interest of justice, especially, when the assessee is an illiterate housewife, we deem it a fit case to condone delay in filing of the two appeals before Ld. CIT(A), but subject to costs, as she herself was also not diligent. We order accordingly.
Held that the assessee-appellant is burdened with costs of Rs.3,000/-i.e. Rs.2,000/-as regards condonation of delay in the appeal pertaining to quantum proceedings and Rs.1,000/-as regards condonation of delay in the appeal pertaining to penalty order.
FULL TEXT OF THE ORDER OF ITAT JAIPUR
Assessee has challenged before us two separate orders dated 19.06.2024 passed by ld. CIT(A) u/s 250 of the Income Tax Act (in short ‘the Act’) whereby two separate appeals filed by the assessee, relating to the Assessment Year 2010-11, have been dismissed while upholding the order passed by the Assessing Officer after conducting quantum proceedings, and also the other order vide which the Assessing Officer levied penalty of Rs. 39,861/-.
2. Arguments heard. File perused
3. It may be mentioned here that both the appeals before us came to be filed after delay of about 25 days. In order to seek condonation of delay, an application was filed in each appeal, initially under the signatures of Sh. P. C. Parwal, ld. AR of the assessee. However, when it was pointed out that no application under the signatures of the assessee was filed, on 9.12.2014, afresh, but joint and not separate application has been presented before the Registry seeking condonation of delay in respect of both the appeals. The application is accompanied by her affidavit.
4. Ld. AR for the assessee-appellant has submitted that the assessee could not file appeals within the prescribed period of limitation as she gained knowledge from her CA, Sh. Anshul Rohtagi about passing of penalty order, on 2.8.2024, whereupon she contacted CA Sh. Kavinder Singh, Bhiwadi for filing of appeals, and after discussions present appeals came to be presented on 17.09.2024. Accordingly, Ld. AR has urged that delay in filing of these two appeals before this Appellate Tribunal may be condoned.
5. In support of the common application seeking condonation of delay, an affidavit of the applicant has been filed.
6. A perusal of Forms No. 35 reveals that in respect of the assessment order and penalty order, same were submitted by CA, Anshul Rohtagi, whose e-mail ID is available in column 17 thereof. Both the appeals were submitted by way of Forms No.35 on 03.12.2018.
7. The affidavit furnished by the applicant is in consonance with the averments put forth in the joint application. Keeping in view all the facts and circumstances, delay of 25 days in filing of these two appeals is condoned. On dismissal of appeals by Ld. CIT(A) in limine
8. As requested, we have heard the appeals today itself.
Coming to the challenge made to the impugned order passed by Learned CIT(A), as regards impugned penalty order, it was observed that there was delay of 135 days.
Ld. CIT(A) dismissed the appeal being barred by limitation, while observing that the assessee was provided sufficient time and adequate number of opportunities of being heard and to file application seeking condonation/ affidavit and supporting evidence to explain the delay, but in vain. Ultimately, Learned CIT(A) held that the reason furnished in the memorandum of appeal itself that for late filing of appeal was due to negligence of consultant/Advocate, in absence of any tangible material and bona fides, could not be considered to be a sufficient cause, and rather, delay occurred on account of sheer negligence and inaction on the part of the assessee.
9. As is available from the impugned order, the matter remained pending before Ld. CIT(A) from 21.06.2018 to 3.12.2018 i.e. for about 6 months , but the assessee failed to furnish any affidavit and documentary evidence as regards prayer for condonation of delay in filing of the appeal.
ITA No.1164/24
10. Coming to the challenge made to the impugned order passed by Learned CIT(A), as regards impugned order pertaining to quantum assessment, it was observed that there was delay of 317 days.
Ld. CIT(A) dismissed the appeal being barred by limitation while observing that the assessee was provided sufficient time and adequate number of opportunities of being heard and to file application seeking condonation/ affidavit and supporting evidence to explain the delay, but in vain. Ultimately, Learned CIT(A) held that the reason furnished in the memorandum of appeal itself that for late filing of appeal was on account of negligence of consultant/Advocate, in absence of any tangible material and bona fides, could not be considered to be a sufficient cause, and rather, delay occurred on account of sheer negligence and inaction on the part of the assessee.
Discussion
11. Let’s see what ground was put forth by the appellant in column No.14 of Form No.35 submitted before CIT(A) while seeking condonation of delay, in filing each appeal.
12. As is available from the impugned order, the matter remained pending before Ld. CIT(A) from 21.12.2017 to 3.12.2018 i.e. for about one year, as regards challenge to penalty order but the assessee failed to furnish any affidavit and documentary evidence as regards prayer for condonation of delay in filing of the appeal.
As per averments put forth in said column, the appellant claimed herself to be an illiterate house wife, and pleaded that when she received show cause notice in respect of proceedings under section 271(1)(c), she delivered the said notice to her consultant, but, he kept the same with himself and did not submit any response thereto.
Further according to her, when she was conveyed information about the penalty order dated 21.6.2018, her consultant did not file appeal before CIT(A).
As regards the delay in filing of appeal challenging quantum assessment, in the relevant column No.14 of Form No.35, the appellant claimed to have received the assessment order, and then handed over the same to her Advocate with relevant papers under the impression that the appeal would be filed in time, but he did not file appeal in time. She claims to have gained knowledge about the quantum assessment on receipt of penalty order under section 271(1)(c).
13. Significant to note that Ld. CIT(A) granted many opportunities to the assessee to furnish affidavit and material as regards prayer for condonation of delay in filing of each appeal, but she did not furnish any affidavit and document in support of the claim regarding condonation of delay.
14. In the given situation, when the appeals came to be dismissed in limine due to abovesaid reason i.e. failure on the part of the assessee to furnish affidavit and document to prove that there was sufficient cause for non filing of the appeals within the prescribed period of limitation, in these two appeals before this Appellate Tribunal, it was for the assessee- appellant to explain as to why she did not avail of the opportunities granted to her by Ld. CIT(A) to file affidavit and documents in order to prove sufficient cause, but, she has not put forth any explanation in this regard i.e. to explain failure on her part to file affidavit and documents before Learned CIT(A).
15. Learned AR for the appellant has submitted that the appellant is an illiterate house-wife and that she having delivered the impugned orders to her consultant, it was for the consultant to do the needful, but he having failed to take steps, delay in filing of the appeal(s) before CIT(A) be condoned and matter be remanded for decision of the appeals on merits.
16. Order regarding quantum assessment is dated 15.12.2017. It came to be challenged before Ld. CIT(A) on 3.12.2018.
Penalty order is dated 21.6.2018. It also came to be challenged before Ld. CIT(A) on the aforesaid date i.e. 3.12.2018.
In other words, both the appeals came to be presented on 3.12.2018 by same Consultant Sh. Anshul Rohtagi.
17. It may be mentioned here that the appellant has testified in the single affidavit, referred to above, even about the facts which led to delay in filing of appeal before Ld. CIT(A).
We have already gone through said affidavit and discussed above as regards condonation of delay in filing of appeals before this Appellate Tribunal.
As regards delay in filing of appeals before Ld. CIT(A), we could have remanded the matter for adjudication of said issue after providing an opportunity to the assessee to file the affidavit desired from her, besides other documents, if any, but, keeping in view that the matters pertain to the Assessment Year 2010-11, we have considered the submissions made before us.
18. As per the abovesaid affidavit, the assessee claims ignorance about the passing of the quantum assessment order and that she gained knowledge about said order only in November, 2018 i.e. about 11 months thereafter, when she was apprised of the penalty order dated 21.6.2018. In other words, she claims ignorance even about the passing of penalty order and having gained knowledge about the said order in after 5 months i.e. in November, 2018.
In the affidavit, the appellant has testified that passing of the penalty order came to her knowledge in the month of November, 2018. But, she has not specifically testified that the penalty order was brought to her knowledge by her CA Sh. Anshul Rohtagi. She should have specified in the affidavit as to how she came to know of the penalty order.
The fact remains that impliedly the appellant is attributing carelessness on the part of her CA in not having informed her about passing of the quantum assessment proceedings in time. A perusal of the quantum assessment order would reveal that Shri Abhinav Kumar Gupta, CA was representing the appellant in the quantum assessment proceedings.
As to who represented the assessee in the penalty proceedings, perusal of the penalty order reveals that none appeared on behalf of the assessee, despite opportunity and notice, and the Assessing Officer had to proceed ex parte. Assessee has not placed on record any material to suggest as to who was authorized by her to represent her in the penalty proceedings.
All the above details on significant aspects should have been provided while filing the appeals before Ld. CIT(A) and before this Appellate Tribunal.
It is well settled that the litigant owes a duty to be vigilant of own rights and is expected to be equally vigilant about the proceedings initiated or to be initiated at her instance. The litigant must remain in constant touch with the authorized representative. Therefore, the litigant cannot be permitted to throw the entire blame on the head of the consultant or Advocate and disown himself or herself at any time to seek relief for condonation of delay.
Having regard to all the facts and circumstances, and in the interest of justice, especially, when the assessee is an illiterate housewife, we deem it a fit case to condone delay in filing of the two appeals before Ld. CIT(A), but subject to costs, as she herself was also not diligent. We order accordingly.
19. In the given situation, both the appeals are disposed of for statistical purposes, and matter are remitted to Ld. CIT(A) to decide the appeals on merits, of course, after providing opportunity of being heard to the appellant.
20. In view of the observations already made above, the assessee-appellant is burdened with costs of Rs.3,000/-i.e. Rs.2,000/-as regards condonation of delay in the appeal pertaining to quantum proceedings and Rs.1,000/-as regards condonation of delay in the appeal pertaining to penalty order.
21. Appellant to deposit the costs in Prime Minister’s National Relief Fund and produce the receipt before Ld. CIT(A) before the proceedings are commenced on remand.
22. Copy of this common order be placed in the record of the other appeal file for record.
23. Appeal files be consigned to the record room after the needful is done by the office.
Announced in open court on 13/12/2024
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