pri Principles of Condoning Delays in Filing Appeal- Recent Judgments Principles of Condoning Delays in Filing Appeal- Recent Judgments

During the month of November 2019, two important judgments were pronounced by judicial authorities, pronouncing the principles behind condoning the delay in filing appeals before the courts by applying section 5 of the Limitation Act, 1963.

In case of Senior Bhosale Estate (HUF) Appellant(s) Versus Assistant Commissioner of Income Tax Respondent (s), The Hon’ble Supreme Court by setting aside the order of the High Court and relegated the parties before the High Court, by allowing the civil application(s) for con-donation of 1754 days delay in in filing the concerned appeal.

 The Appellant(s) in this case pleaded before the court that they had no knowledge about the order passed against them by the ITAT on 29-12-2003 until they were confronted with the auction notices in June 2008 issued by the competent authority.The Appellant(s) filed appeal within prescribed time along with subject applications on 19-07-2019.The respondents did not expressly refute the stand taken by the applicant(s) about the fact that they were not aware about the order issued by ITAT on 29-12-2003.

Hon’ble Supreme Court while allowing the condonation of delay of 1754 days observed that unless fact is not refuted by the respondent (s) the question of disbelieving the stand taken by the Applicant (s) cannot arise thus Hon’ble High Court should have shown lenience to the appellant (s) by condoning the delay in filing the concerned appeal(s).

In the second case between Bhagwati Colonizers Pvt. Ltd Vs ITO (ITAT Amritsar) (Third Member):

The appellant in his appeal prayed condonation of delay of 571 days. The submission was that the appellant was not aware of the fact that an order was passed by CIT(A) on 14-06-2013 which was handed over to his Advocate. The appellant came to know about the said order during the penalty proceedings. Appellant immediately filed a request before the CIT(A) on 05-03-2014 with a request to supply a copy of the order. The copy of the order as requested was received by the Appellant on 04-03-2015 from the office of CIT(A) with a letter stating that the copy of the order was duly received by his Advocate.

On receipt of the order the Appellant filed an appeal on 31-03-2019 before ITAT on 31-03-2015 with a request for the condonation of delay giving the reason that the cause of delay in filling the appeal was beyond the control of the Appellant.

During the hearing the learned Departmental Representative produced documents to prove that the assess had duly authorised his Advocate to receive the order on his behalf resulting in receipt of order by the Advocate from the Department. A question was raised to obtain a letter from the Advocate mentioning that he has not informed the Appellant about the said order. The learned Departmental Representative informed the court obtaining a letter as desired by court from the Advocate is not possible as the relation between the Appellant and his specific Advocate is not good enough to expect such a communication from the Advocate.

In both the cases the Hon’ble courts were of the view that the law of limitation is founded on public policy. The idea behind the law of limitation is not to destroy the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay.  The objective of the law of limitation is to keep alive the legal remedy within a prescribed limited time but does not restrict courts to condone the delay in the interest of Justice. In both the cases Section 5 of the limitations Act was applied.

There are certain common but genuine grounds which the courts may consider for the condonation of delay in cases where Appeals are filed after the expiry of period as laid down under the limitations Act, 1963.

  • Appellants filing appeals after the expiry of the period of limitation with a submission for condonation of delay the reason being that he was not aware of the order passed by the referred authority. The courts after ascertaining the genuineness of the submission may Condon the delay.
  • The respondent (s) must not expressly refute the stand taken by the Appellant. Courts need to ensure that the respondent(s) have nothing concrete to prove that the stand taken be Appellant is not based on facts.
  • Concealment of information by the council, if proved beyond the doubt can be a valid ground for condonation of delay.
  • Delay in receipt of order from the department, if proved with evidence can be a valid cause for the condonation of delay.
  • Any other plea made by the Appellant which the Hon’ble court considers genuine and relevant can be considered for the condonation of delay.

From the above decisions it becomes clear that in the case of condonation of delay where the appeal was filed beyond the limitation of period, the courts are empowered to condone the delay, provided that the Appellant can prove his claim of inability to file appeal within the prescribed period. Litigant must be able to demonstrate that there was “sufficient cause” which obstructed his action to file Appeal beyond the prescribed time limit.

Courts have also held that the expression “Sufficient Cause” shall receive liberal consideration for the sake of Justice. Thus, the condonation of delay is not automatic but is based upon on the facts of the case. Courts while condoning delays in filing appeals have power to examine each case separately and after ascertaining the facts if delay was due to “sufficient cause” may Condon the delay.

Dilip Kumar Raina, Advocate [FCA (ICAI); LL. B; PGDFM]

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One Comment

  1. Shiv M says:

    I have received defficiency letter from National faceless Appeal Center of IT Dept.menioning that 1. Appeal filed beyond time & application for condonation of delay not filed.

    I submitted Grounds for condonation of delay in Form 35 as under:

    During the course of assessment proceeding the tax relief claimed under Sec. 90 was not allowed on the ground that proof of payment of tax in USA could not be furnished.
    I tried my best to obtain the proof of payment of tax in USA from IRS USA but could not get the same before the completion of assessment.
    When the proof of tax paid in US A was received, I filed application under section 154 on 09-Jan-2017. But no action was taken there upon.
    Thereafter, I filed another application under Sec. 154 on 20-Sep-2018 which was rejected by the Assessment Officer vide his order under Section 154 dated 11-02-2019. In view of the boards Circular number 4-2012 dated 20.06.2012 I was under the bonafide belief that after receipt of proof of payment of tax in USA, tax relief under Sec. 90 would be given by the Assessing Officer. Therefore, I did not file appeal immediately after receipt of assessment order dated 23-12-2016. After rejection of my application under Sec. 154 on 11-02-2019 I am filing this appeal within 30 days of receipt of order under Section 154.This order under Sec. 154 was received by me on 17-02-2019.
    Please guide what shall I do to convince Appeal Dept. regarding Condonation of delay.which they would agree.
    Thank you & wish you & all family member & very happy New Year 2021.

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