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March 11, 2023

Unreasonable justifications for a tax consultant’s unavailability are not excused

Unreasonable justifications for a tax consultant’s unavailability are not excused

Fact and issue of the case

The present appeals are directed at the instance of assessee against the separate orders of ld. Commissioner of Income Tax (Appeals), Asansol dated 02.07.2019 passed for Assessment Years 2009-10 and 2010-11.

While concluding the hearing today, we have passed a separate Interim Order, which reads as under:- “The present two appeals are directed at the instance of assessee against the separate orders of ld. Commissioner of Income Tax (Appeals), Asansol dated 02.07.2019 passed for A.Ys. 2009-10 & 2010-11. On the earlier dates of hearing, Shri P.J. Bhide, FCA has been appearing on behalf of the assessee. However, he did not appear on 18.01.2023. The notice was issued to the assessee through Registered Post, but no one has appeared. The Bench Clerk was directed to call Mr. P.J. Bhide, FCA and on telephone he informed that the assessee is not in his contact and he has no instruction. Since on the absence of Shri P.J. Bhide on the last date of hearing, we have issued fresh notice for today, i.e. 8th February, 2023 through Registered Post, but inspite of that, no one has appeared. Therefore, we conclude the hearing ex-parte qua the assessee ”.

With the assistance of ld. D.R., we have gone through the record carefully. Sub-section 5 of Section 253 contemplates that the Tribunal may admit an appeal or permit filing of memorandum of cross- objections after expiry of relevant period, if it is satisfied that there was a sufficient cause for not presenting it within that period. This expression sufficient cause employed in the section has also been used identically in sub-section 3 of section 249 of Income Tax Act, which provides powers to the ld. Commissioner to condone the delay in filing the appeal before the Commissioner. Similarly, it has been used in section 5 of Indian Limitation Act, 1963. Whenever interpretation and construction of this expression has fallen for consideration before Honble High Court as well as before the Honble Supreme Court, then, Honble Court were unanimous in their conclusion that this expression is to be used liberally. We may make reference to the following observations of the Hon’ble Supreme court from the decision in the case of Collector Land Acquisition Vs. Mst. Katiji & Others, 1987 AIR 1353:

Ordinarily a litigant does not stand to benefit by lodging an appeal late.

Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

“Every day’s delay must be explained” does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s delay? The doctrine must be applied in a rational common sense pragmatic manner.

When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

Observation of the court

Similarly, we would like to make reference to authoritative pronouncement of Honble Supreme Court in the case of N. Balakrisknan Vs. M. Krishnamurtky (supra). It reads as under: “Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts.  So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and  consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words “sufficient cause” under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi lain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss”.

We do not deem it necessary to re-cite or recapitulate the proposition laid down in other decisions. It is suffice to say that the Honble Courts are unanimous in their approach to propound that whenever the reasons assigned by an applicant for explaining the condonation of delay, then such reasons are to be construed with a justice oriented approach.

In the light of above, we have examined the explanation given by the assessee. It is pertinent to note that the impugned orders were passed on 02.07.2019. Its effect was given by the ld. Assessing Officer on 23.08.2019. According to the assessee, the order was served upon him but was misplaced and found on 10.2019, but thereafter the assessee has filed the appeal on 25.09.2020. As far as the delay attributable to COVID period from March, 2020 is concerned, it is not to be counted and it is to be condoned. However, there is hardly specific any explanation by the assessee for the period August, 2019 upto March, 2020. The only explanation given in the application above is that sometime the Tax Consultant was not available to the assessee or illness of his Grandson. No affidavit in support of the delayed filing of appeals is filed. No other medical document in support of illness is being filed. Therefore, we do not deem it fit to condone the delay in filing these appeals. These appeals are dismissed being time-barred.


In the result, appeal of the assessee is allowed and ruled in favour of the assessee

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