Case Law Details
It to be settled position of law that right of appeal is neither an absolute nor an ingredient of natural justice, the principle of which must be followed in judicial and quasi-judicial adjudication. The right to appeal is a statutory right and it can be circumscribed by the condition in the grant. If a statute gives right to appeal upon certain conditions it is upon fulfilment of those conditions that the right becomes vested in and exercisable by the appellant.
As per s. 253(3), appeal is required to be filed by the assessee or the Department within sixty days from the date of communication of the order to be appealed against on the assessee or the CIT, as the case may be and under s. 253(5), Tribunal may admit an appeal after expiry of relevant period referred to in s. 253(3) if it is satisfied that there was sufficient cause for not presenting the appeal within that period. No doubt, it is specifically provided that appeal can be admitted after the prescribed period if the assessee satisfies the Tribunal that he/she had sufficient cause for not preferring the appeal within period as prescribed in this behalf. Where the time for referring an appeal has expired, a valuable right is secured to the respondent or the opposite party and such right ought not to be lightly disturbed [as held by Hon’ble Supreme Court in the case of Ramlal v. Rewa Coalfields Ltd. AIR 1962 SC 361, 363]. The appeal preferred or. made after the expiry of the prescribed period can be admitted only if the assessee satisfied the Tribunal that there was sufficient cause for not preferring the appeal within such period. The Tribunal has power to condone the delay only when sufficient cause is shown with a view to advance substantial justice and even after sufficient cause has been shown the party is not entitled to condonation of delay, as a matter of right. If sufficient cause is shown then Tribunal has to enquire, whether in its discretion, it should condone the delay, consideration of bona fides or due diligence is always material. Since all other circumstances are also to be taken into account before applying the provisions of law in this regard and in this case the Department did not file the appeals within due time in this case and cause shown by it does not conclusively show that same is reasonable or sufficient. No doubt, at more than one occasion Hon’ble Supreme Court has specifically held that State cannot be put on the same footing as an individual because individual would be quick in taking the decision whereas Government machinery, there is impersonal mechanism through its officers or servants but position here is not the same as it was a case of no action on the part of the Assessing Officer inasmuch as even after obtaining authorization from concerned CIT on 30.08.2010, the appeal was filed on 29.03.2012 and no material or evidence to justify such inordinate delay of 557 days has been adduced except taking general type of plea of oversight and pressure of overwork, Department has sought condonation of delay, which, in our considered view, cannot be held to be a sufficient or reasonable cause for not filing the appeal within stipulated time in the light of facts and circumstances explained and discussed above.
IN THE ITAT DELHI BENCH ‘H’
Assistant Commissioner of Income-tax
Versus
Vimal Mehra
IT APPEAL NO. 1484 (DELHI) OF 2012
[ASSESSMENT YEAR 2007-08]
OCTOBER 26, 2012
ORDER
U.B.S. Bedi, Judicial Member
This appeal of the department emanates from the order of the CIT (A)-XXVI, New Delhi, dated 28.06.2010, relevant to assessment year 2007-08, whereby deletion of addition of Rs.92,48,500/- made by the Assessing Officer by disallowing assessee’s claim for deduction u/s 54 of I.T. Act, 1961 without considering the fact that property was being sold was not residential property, as per sale agreement dated 01.02.2007, being agricultural land, has been challenged. The appeal was found to be defective inasmuch as same was filed late by 557 days and a defect memo was issued in this case. In response thereto, Assessing Officer has filed application for condo nation of delay as under:
“Subject: Filing of appeal in ITAT in the case of Shri Vimal Mehra for the assessment year 2007-08 – condonation of delay – Regarding.
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Kindly refer to the above.
2. In this case authorization to file an appeal u/s 253(2) of the I.T. Act, 1961 was issued by Ld.CIT, Delhi-XI, New Delhi on 30.08.2010. Limitation was expired on 20.09.2010. However, due to oversight and pressure of workload the same could not be filed in time inadvertently resulting in delay of more than 1 year. The delay is highly regretted and it is requested to kindly condone the same.”
2. Ld.DR while reiterating the submissions as made in the application for condonation of delay filed by the Assessing Officer has pleaded for condoning the delay because there was no intentional or deliberate delay on the part of the Assessing Officer in filing the appeal, though the delay was for 557 days, but reasonable cause supported by affidavit for condoning the delay, so it was pleaded for admitting the appeal to be decided on merits. Reliance was also placed in the case of the following decisions:
1. Asstt. CIT v. Ranbir Chemicals Industries (P.) Ltd. [2008] 114 ITD 121 (Chd.).
2. CIT v. Shankarlal Ved Prakash (HUF) [2004] 138 Taxman 125 (Delhi).
3. CIT v. Indian Hotels Co. Ltd. [SLP (Civil) No. 2108 of 2010 dated 9-5-2011].
4. UOI v. Tata Yodogawa Ltd. [1988] (38) ELT 739 (SC).
5. Copy of Circular No.DIT(L&R)-I/delay in SlP/2012-13, dated 19.9.2012 issued by the Office of Director General of Income Tax (Legal & Research), New Delhi.
6. G. Ramegowda, Major v. Special Land Acquisition AIR 1988 SC 897.
7. State of Haryana v. Chandera Mani AIR 1996 SC 1623 and
8. Collector Land Acquisition v. Mst. Katiji AIR 1987 SC 1352.
3. So far as merits of the case are concerned, Ld. DR. submitted that since department has a very solid case, therefore, appeal be admitted, considered and deletion of addition made by the CIT(A) be restored.
4. Ld. Counsel for the assessee while opposing the move of the Revenue has pleaded for rejecting the plea of the department for condo nation of delay as neither Any reasonable cause has been shown nor any documentary evidence has been produced to prove that the delay caused in filing of the appeal which was late of 557 days, was due to a bona fide reason or there were sufficient reasons for the same. General type of plea has been raised that due to oversight and pressure of workload, the delay has been caused when in various decisions, it has been categorically held that each day’s delay is to be explained and here is a question of condonation of delay of 557, days which is in ordinate delay and reliance was placed on the following decisions:
1. Ranbir Chemicals Industries (P) Ltd.’s case (supra) and
2. Shankarlal Ved Prakash (HUF)’s case (supra).
5. So far as case on merits is concerned, CIT(A) has passed a very reasoned and elaborate order considering the each and every aspect of the matter which has not been rebutted or refuted by Ld.DR., as such order of CIT(A) needs further confirmation. Therefore, appeal of the Revenue on merits needs to be dismissed which may be dismissed.
6. After considering facts, material on record and various case law as cited by rival sides, we find it to be settled position of law that right of appeal is neither an absolute nor an ingredient of natural justice, the principle of which must be followed in judicial and quasi-judicial adjudication. The right to appeal is a statutory right and it can be circumscribed by the condition in the grant. If a statute gives right to appeal upon certain conditions it is upon fulfilment of those conditions that the right becomes vested in and exercisable by the appellant. As per s. 253(3), appeal is required to be filed by the assessee or the Department within sixty days from the date of communication of the order to be appealed against on the assessee or the CIT, as the case may be and under s. 253(5), Tribunal may admit an appeal after expiry of relevant period referred to in s. 253(3) if it is satisfied that there was sufficient cause for not presenting the appeal within that period. No doubt, it is specifically provided that appeal can be admitted after the prescribed period if the assessee satisfies the Tribunal that he/she had sufficient cause for not preferring the appeal within period as prescribed in this behalf. Where the time for referring an appeal has expired, a valuable right is secured to the respondent or the opposite party and such right ought not to be lightly disturbed [as held by Hon’ble Supreme Court in the case of Ramlal v. Rewa Coalfields Ltd. AIR 1962 SC 361, 363]. The appeal preferred or. made after the expiry of the prescribed period can be admitted only if the assessee satisfied the Tribunal that there was sufficient cause for not preferring the appeal within such period. The Tribunal has power to condone the delay only when sufficient cause is shown with a view to advance substantial justice and even after sufficient cause has been shown the party is not entitled to condonation of delay, as a matter of right. If sufficient cause is shown then Tribunal has to enquire, whether in its discretion, it should condone the delay, consideration of bona fides or due diligence is always material. Since all other circumstances are also to be taken into account before applying the provisions of law in this regard and in this case the Department did not file the appeals within due time in this case and cause shown by it does not conclusively show that same is reasonable or sufficient. No doubt, at more than one occasion Hon’ble Supreme Court has specifically held that State cannot be put on the same footing as an individual because individual would be quick in taking the decision whereas Government machinery, there is impersonal mechanism through its officers or servants but position here is not the same as it was a case of no action on the part of the Assessing Officer inasmuch as even after obtaining authorization from concerned CIT on 30.08.2010, the appeal was filed on 29.03.2012 and no material or evidence to justify such inordinate delay of 557 days has been adduced except taking general type of plea of oversight and pressure of overwork, Department has sought condonation of delay, which, in our considered view, cannot be held to be a sufficient or reasonable cause for not filing the appeal within stipulated time in the light of facts and circumstances explained and discussed above.
7. As such, considering the totality of facts and circumstances, pleas raised and discussion held in the light of decided cases, as relied upon, we decline to condone the delay caused in filing of the appeal and dismiss the same in limine.
8. As a result, the appeal filed by the Revenue gets dismissed.
