Sai Engineering Foundation , Shimla vs Assessee

(Appellant) (Respondent)

Appellant by : Shri Atul Gandhi Respondent by : Dr. Amarveer Singh

Date of Hearing : 22.06.2015 Date of Pronouncement : 23.06.2015

PER BHAVNESH SAINI,JM

This appeal by assessee is directed against the order of

Ld. Commissioner of Income Tax, Shimla dated 17.02.2010

under section 12AA(3) of the Income Tax Act.

2. This appeal was earlier dismissed in default which was

restored while allowing Miscellaneous Application of the

assessee. Therefore, appeal was re-fixed for hearing on

merits.

3. Briefly the facts of the case are that assessee society

was granted registration under section 12A of the Act vide

order dated 23.03.1998. The Ld. Commissioner of Income

Tax noticed from the regular assessments that assessee was

mainly engaged in carrying out commercial activities. The 2

Ld. Commissioner of Income Tax, after giving opportunity of

being heard to the assessee held that assessee is pre-

dominantly engaged in commercial activities on a very large

scale and accordingly, withdrawn the registration granted

under section 12AA of the Act w.e.f. assessment year

2009-10.

4. The assessee mentioned in column No. 9 of the appeal

papers that the date of communication of the order appealed

against is dated 24.02.2010. However, the appeal is filed in

the office of the Tribunal on 05.09.2012. The office of the

Tribunal, therefore, noted that appeal is time barred by 864

days.

5. The assessee filed application for condonation of delay

explaining therein that inadvertently due to negligence of

the staff of their Auditor, the appeal was not filed before the

Tribunal. The affidavit of Shri Anil K. Sood, Chartered

Accountant is filed in support of the application in which in

para 2 & 3 it is explained as under :

"2. That my client 'Sai Engineering Foundation" had given instruction to pref er an a p p e a l b e f o r e t h e H o n ' b l e IT A T a g a i n s t t h e o r d e r o f t h e C IT .

3. T hat in advertently due to negligence of o n e o f my s t af f th e a p p e a l wa s n o t f i l e d wi t h i n the prescribed time limit."

6. The ld. counsel for the assessee reiterated the facts

stated in the affidavit and submitted that due to negligence

of the staff of the Chartered Accountant, appeal could not

be filed on time.

3

7. On the other hand, ld. DR submitted that assessee has

failed to explain any reasonable cause for failure to file the

appeal within the period of limitation. Therefore, delay in

filing the appeal may not be condoned.

8. We have considered the rival submissions. It is not in

dispute that appeal is time barred by 864 days before the

Tribunal. The assessee filed affidavit of Shri Anil K. Sood,

Chartered Accountant in which assessee admitted that the

assessee had given instructions to file the appeal before the

Tribunal against the impugned order of ld. CIT. However, it

is stated that inadvertently, due to negligence of one of the

staff of the Chartered Accountant, appeal was not filed

within the prescribed time limit. It is a very vague

statement in the affidavit and would not disclose any

sufficient or good reasons for condonation of delay. The

appeal is to be filed by the Chartered Accountant and not by

the staff. Further, the copy of the challan is filed for the

purpose of filing of the appeal in which the date of paying

Tribunal fees of Rs. 500/- is mentioned as 05.09.2012. The

payment of fees of the Tribunal for the purpose of filing the

appeal itself is same date on which the appeal is presented

in the office of the Tribunal on 05.09.2012. Thus, even the

vague statement given in the affidavit of the Chartered

Accountant is not supported by any cogent and proper

evidence. Nothing is explained as to why the appeal was not

preferred before the Tribunal within the period of limitation.

9. It would be appropriate to refer to some of the judicial

pronouncements on the issue of delay in filing the appeals. 4 In the case of Hind Development Corpn. v. ITO [1979] 118

ITR 873, the Calcutta High Court held that a Tribunal can

condone the delay if there was sufficient cause for the delay

in the submission of the appeal. In the case of Vedabai alias

Vijayanantabai Baburao Patil v. Shantaram Baburao Patil

[2002] 253 ITR 798 (SC), where it was held that while

exercising discretion under section 5 of the Limitation Act,

1963, to condone delay for sufficient cause in no filing the

appeal within the period prescribed, Courts should adopt a

pragmatic approach. A distinction must be made between a

case where the delay is inordinate and a case where the

delay is of a few days. The Court observed that whereas in

the former consideration of prejudice to the other side will

be a relevant factor and calls for a more cautious approach.

In the latter case no such consideration may arise and such

a case deserves a liberal approach. Now in the present case

delay is not of a few days but of 864 days. Besides, there is

absolutely no valid explanation/reason for the delay. In the

case of CIT v. Ram Mohan Kabra [2002] 257 ITR 773, the

Hon'ble Punjab & Haryana High Court has held observed

that where the Legislature spells out a period of limitation

and provides for power to condone the delay as well, such

delay can only be condoned only for sufficient and good

reasons supported by cogent and proper evidence. It is a

settled principle of law that provisions relating to the

specified period of limitation must be applied with their

rigour and effective consequences. In this case delay for

filing the appeal late for only a few days was not condoned. 5

In the case of Asstt. CITv. Taggas Industries Development

Ltd. [2002] 80 ITD 21 (Cal.), Tribunal, Calcutta Bench,

Calcutta, did not condone the delay for filing the appeal late

by 13 days because the delay was not due to sufficient

cause. Thus, relying on the above judgments, we hold that

assessee failed to explain delay in filing the appeals was

due to sufficient cause.

10. In view of the above discussion, we are of the view

assessee failed to explain delay in filing appeal was due to

sufficient cause, therefore, delay should not be condoned in

the matter. We, accordingly, reject the request for

condonation of delay in filing the appeal and treat the

appeal to be time barred and is accordingly, dismissed in-

limine as time barred.

11. In the result, appeal of the assessee is dismissed.

Order pronounced in the Open Court on 23rd

June,2015.

Sd/- Sd/- (T.R.SOOD) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 23rd June,2015. 'Poonam' Copy to:

The Appellant, The Respondent, The CIT(A), The CIT,DR

Assistant Registrar, ITAT Chandigarh