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Q Can condonation of delay in filing appeal be acceded without a written request? The Hon’ble ITAT, Agra passed the order in the similar circumstances in the case of Netra Pal Singh v. Asstt. CIT on dated 23 April 2003 vide IT(SS)A No. 89/Del/1997 Block period 1985-86 to 1995-96

 

Answer:  Whatever may have been the circumstances, the assessee’s verbal request for condonation of delay cannot be acceded to and the same is rejected.

 

Netra Pal Singh v. Asstt. CIT

In the ITAT, Agra ‘Smc’ Bench

I.S. Verma, J.M.

IT(SS)A No. 89/Del/1997 Block period 1985-86 to 1995-96

Decided on 23 April 2003

Income Tax Act, 1961, section 253(3), proviso

In favour of: revenue

Appeal (Tribunal)

Condonation of delay

Counsel : P.K. Sehgal, for the Assessee A.R. Gauatam, for the Revenue.

ORDER

I.S. Verma, J.M.

In this appeal, the assessee has objected to the order of block assessment completed under section 158BC of the Income Tax Act, 1961 (hereinafter referred to as the Act), with respect to the issue relating to the consideration of assessee’s income for the assessment year 1992-93 amounting to Rs. 9,510 as undisclosed income.

2. Counsel for the assessee as well as the learned Departmental Representative have been heard.
3. The counsel for the assessee submitted that by virtue of provisions of section 139(1) of the Act, as they stood at the relevant time, the assessee’s income for the assessment year 1992-93 as per regular books of accounts maintained by it being below the taxable limit, it was not under obligation to furnish the return and, therefore, the said income having been recorded in the regular books of accounts could not be considered as undisclosed income. In support of his plea he relied on the provisions of section 158BB(1)(a)(B) of the Act according to which where the income did not exceed the maximum amount not chargeable to tax but the entries relating to the same have been recorded in the books of accounts maintained in the normal course of the business was to be excluded in arriving at the undisclosed income. The counsel for the assessee also relied on various decisions furnished in the paper book.
4. The learned Departmental Representative at the outset submitted that the assessment order for block period having been received by the assessee on 28-2-1997, the assessee was to furnish the appeal before the Tribunal within a period of 30 days, i.e.,on or before 30-3-1997 and, therefore, the appeal furnished by the assessee on 5-5-1997, is barred by time. The learned Departmental Representative further submitted that since the assessee has neither made a request for condonation of delay nor the counsel has pleaded such request while arguing the case on merits, the assessee’s appeal may be dismissed in limine.
5. In view of the facts stated by the learned Departmental Representative it was found that the assessee’s appeal was, in fact, late by 36 days and since the assessee had not made any application for condonation of delay the counsel for the assessee was apprised of the delay and he was fair enough, after going through the provisions of the Act, to admit that the assessee’s appeal was late by 36 days. When the counsel was asked to state reasons for delay, he ended his inning by saying that he has been engaged by the assessee only on a day earlier and, therefore, he had no knowledge as to under what circumstances the appeal was delayed.
6. After the Bench was over, the counsel for the assessee again appeared and pleaded for hearing him on the point of condonation of delay. The counsel’s request was allowed after hearing the learned Departmental Representative.
7. The counsel for the assessee submitted that the delay in furnishing the appeal was because of the wrong information given by the assessing officer as well as the Assistant Registrar of the Tribunal. Elaborating upon the informations the assessee’s counsel submitted that in the demand notice supplied by the assessing officer it is mentioned that if the assessee intends to appeal against the order under section 158BC, he may present an appeal to the Tribunal, New Delhi, within ‘sixty days’ of the receipt of that order and, therefore, the assessee was made to believe by the assessing officer that he can furnish the appeal before the Tribunal within a period of sixty days. The another safety measure pleaded by the counsel was that the Assistant Registrar of the Tribunal, Agra Bench, had issued a defective memo No. IT(SS)/D/1997 on 13-1-2003, in which the para No. 2, which relates to the information to be given to the assessee in case the appeal is barred by time, has been struck off, meaning thereby that the Asstt. Registrar also failed to apprise the assessee that his appeal was barred by time. According to the learned counsel delay was not attributable to the appellant. Counsel further submitted that it was in view of above facts that the appellant could not make a written petition for condonation of delay.
8. In rejoinder, the learned Departmental Representative submitted that in the demand notice it is clearly mentioned that the order has been passed under section 158BC of the Act and the appeal was to be furnished before the Tribunal. So, when the assessee could find out the quantum of Tribunal’s fee he could find out the limitation for furnishing the appeal. The learned Departmental Representative further submitted that even if assessee’s version that assessing officer had allowed sixty days to furnish the appeal is accepted then also the delay of six days remained unexplained and, therefore, the assessee’s appeal may be dismissed in limine.
9. I have considered the rival submissions, facts and circumstances of the case, provisions of law and various decisions relied upon by the counsel for the assessee.
10. After careful consideration of the totality of the facts and circumstances of the case, I am of the opinion that the assessee’s appeal having been furnished after the expiry of time for which no justifiable explanation has been given is liable to be dismissed in limine. Admittedly, the demand notice and assessment order for block period were received by the assessee on 28-2-1997 and, therefore, the appeal could be furnished latest by 30-3-1997. The appeal was furnished on 5-5-1997, which is late by 36 days. The assessee’s submission that assessee was given to understand by the assessing officer, as per notice of demand, that the appeal before the Tribunal can be furnished within sixty days is devoid of any merits, firstly, because the assessee is to furnish the appeal within the period prescribed under the law and not within the period as told by the assessing officer, moreso, when the assessing officer has no power either to curtail or to enhance the period of limitation. Secondly, it is quite evident from the copy of the challan for payment of Tribunal’s fee that the assessee had deposited the fee at Agra on 28-4-1997 and, therefore, even if it is accepted that assessee was given to understand to furnish the appeal within sixty days, it is quite impossible for furnishing the appeal at Delhi during that period.
11. Even if for the sake of arguments, it is accepted that the assessee was given to understand that appeal can be furnished within a period of sixty days then also there remains a delay of six days which has not been explained at all. It is well-settled law that a person who wants condonation of delay in furnishing the appeal must explain the delay of each day and if he fails to explain the delay even for one day, the court has no reason to exercise the discretion in petitioner’s favour. In the present case, the delay of six days atleast having not been explained the appeal has to be treated as barred by time.
12. So far as assessee’s pleas that the Assistant Registrar had not communicated this fact in the defect memo is concerned, I am of the opinion that the purpose of intimating the defect is to point out defects in the memo of appeal and delayed appeal cannot be considered as defective. It is, therefore, not necessary to apprise the assessee of this fact and even if it is taken that assessee should be apprised of delay then also the purpose of such communication is only to apprise the assessee so that he can make a petition for condonation, if already not made, and to give an opportunity to explain the delay. The failure of Assistant Registrar, therefore, cannot be taken as (a ground for) condonation of delay.
13. So far as the present case is concerned, the counsel for the assessee was not only apprised of the revenue’s submission that appeal was barred by time by 36 days but he was allowed sufficient opportunity in spite of there being no petition for condonation of delay, to explain the delay not only during the course of hearing of the appeal but also after the Bench was over-when the assessee’s counsel reappeared along with a copy of demand notice and defective memo issued by the Tribunal. When the counsel was asked to explain the reasons for delay, it was for him either to seek adjournment for making a proper petition under the rules for condonation of delay or to explain the reasons. The counsel preferred to explain the reasons which he was allowed after considering his verbal request for condonation of delay and was heard at length. In view of these facts, the purpose of apprising the assessee the factum of delay has been duly served. –
14. Another reason given by the counsel for the assessee was that he had got the memo of appeal signed by the assessee on 25-4-1997 and given the same to the assessee for furnishing before the Tribunal at Delhi, so the delay was beyond his control.
15. The aforesaid plea of the counsel cannot be a reasonable ground for condonation of delay. Firstly, because it is not correct that the appeal was ready on 25-4-1997, because the Tribunal’s fee as per copy of challan on file was deposited on 28-4-1997 and secondly, the preparation of the appeal within a period of sixty days itself is not sufficient to explain the delay. Here again, even if this plea is accepted, then also, the delay of 10 days, i.e.,from 26-4-1997 till 5-5-1997, remains unexplained.
16. Whatever may have been the circumstances till 28-4-1997, but the question for consideration is that what was the reason for delay beyond that period. The delay beyond 28th April or after sixty days (which expired on 29th April), as the case may be, having not been explained, the assessee’s verbal request for condonation of delay cannot be acceded to and the same is rejected.
17. In the result, assessee’s appeal is dismissed in limine.