Judgment:
1.The present four appeals have been filed by the assessee against the order of the learned CIT(A), dt. 6th Feb., 2002, vide which learned CIT(A) decided four appeals of the assessee pertaining to asst. yrs.
1997-98 and 1998-99.
2. In response to the notice of hearing, the assessee has submitted certain submissions. However, no one has come forward for arguing the matter. We heard the learned Departmental Representative for the Revenue and gone through the written submissions of the assessee.
3. The brief facts of the case are that four appeals were filed before the learned CIT(A) against the orders of the learned AO dt. 29th June, 1999, 16th Sept., 1998, 11th Sept., 1998, and 18th Sept., 1998.
Aggrieved with the action taken under Section 201(1A), r/w Sections 200 and 194-I of the IT Act, vide which the learned ITO, TDS, levied an interest of Rs. 1,10,23,030 for the financial yrs. 1997-98 and 1996-97.
All these appeals were filed before the first appellate authority on 31st Aug., 1999. According to the first appellate authority, the appeal for asst. yr. 1998-99 was time-barred by 30 days whereas the rest of the appeals were time-barred by 345 days.
4. When this fact was brought to the notice of the assessee and it was asked to show the reasons for such delay, the assessee has submitted a reply which has been reproduced by the learned first appellate authority at p. 2 para 3 of his order. The reply reads as under : "This has reference to the above. During the course of first hearing fixed on 10th Oct., 2001, we came to know that the appeal was filed belated.
M/s V.D. Patel & Co., Chartered Accountant, Prop. Shri V.D. Hudka, represented all our past tax matters. As and when we receive any order from the IT Department, we handed it over to our above tax consultant and as per his advice we act accordingly. The fact that he was our tax consultant is evident from the records in which his signatures are appearing.
In respect of the order under appeal, we ought to have delivered the order to him on receipt of the same from the IT Department. He is supposed to file the appeal within the time-limit given under the Act, Our tax consultant late Shri V.D. Patel is now no more, he died somewhere in January, 2000, in his early age.
Since we do not have to play any role in our tax matter, the reason for delay in filing this appeal also will have to be explained only by him and we do not remember the exact reason for delay in bringing this appeal.
We wish to draw your honours kind attention towards the judicial decision at (1989) 35 TTJ (Del) (Trib) 204 in which it is held that there was a sufficient ground for condoning the delay which was caused on account of the conduct of the counsel and was likely to result in miscarriage of justice as the assessee's valuable right of appeal is seen to have lost or forfeited.
In view of the facts and circumstances stated above, we request your honour to kindly condone the delay by exercising the power vested with your honour under Section 249(3) of the IT Act, for the sake of natural justice, which was caused on account of reasons beyond our control." According to the first appellate authority, the explanation of the assessee is not sufficient for condoning the huge delay of 345 days.
The learned first appellate authority was of the opinion that the assessee has admitted the receipts of notice. It was under obligation to make arrangement for filing the appeals well in time. Had the application for condonation of delay been filed along with the filing of the appeal, the version that delay occurred on account of tax consultant, Shri V.D. Patel, who is no more," would have been explained properly. The learned first appellate authority was of the opinion that there are facts as put-forth by the assessee. One thing is clear either the assessee is negligent or the assessee as well as its tax consultant, both are negligent in filing the appeals. Ultimately, the learned CIT(A) dismissed the appeal on the ground of limitation.
5. The assessee in his written submissions reiterated its contentions as were raised before the learned first appellate authority, whereas the learned Departmental. Representative emphatically supported the order of the CIT(A) and submitted that where the delay is explained to have been caused due to bona fide mistake on the part of the appellant's counsel is vague and ad hoc statement, it does not constitute sufficient cause for condoning the delay. He further submitted that negligence on the part of the servant or agent entrusted with the filing of the appeal, cannot be sufficient cause. To buttress his view, he relied upon the judgment in 4 PLJ 381. He further submitted that the assessee was required to explain each day's delay.
6. The Courts and the quasi judicial bodies are empowered to condone the delay if a litigant satisfied the Court that there were sufficient reasons for availing the remedy after expiry of the limitation. Such reasoning should be to the satisfaction of the Court. The expression "sufficient cause, or reason" as provided in Sub-section (3) of Section 249 of the IT Act is used in identical position in the Limitation Act and the CPC. Such expression has also been used in other sections of the IT Act such as Sections 274, 273, etc. The expression "sufficient cause" within the meaning of Section 5 of the Limitation Act as well as similar other provisions, the ambit of exercise of powers thereunder have been subject-matter of consideration before the Hon'ble Supreme Court on various occasions. In the case of State of West Bengal v. The Administrator, Howrah Municipality AIR 1972 SC 749 the Hon'ble Supreme Court while considering the scope of expression "sufficient cause" for condonation of delay has held that the said expression should receive a liberal construction so as to advance the substantial justice when no negligence or inaction or want of bona fide is imputable to party.N. Balakrishnan v. M. Krishnamirthy, AIR 198 SC 3222, there was a delay of 883 days in filing an application for setting aside the ex parte decree for which application for condonation of delay was filed. The trial Court having found that sufficient cause was made out for condonation of delay condoned the delay. However, the Hon'ble High Court reversed the order of the trial Court. The Hon'ble Supreme. Court while restoring the order of the trial Court has observed in paras 8, 9 and 10 as under: "8. The appellant's conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences.
9. It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation, whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory.
Once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior Court would be free to consider the cause shown for the delay afresh and in its own finding even untrammeled by the conclusion of the lower Court.
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The primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause." The Hon'ble Supreme Court further observed that rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics, but seek the remedy promptly. The Hon'ble Court further observed that refusal to condone the delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. The Hon'ble Supreme Court in SLP (Civil No. 12980 of 1986, decided on 19th Feb., 1987, in the case of Collector, Land Acquisition and Ors. v. Mst. Katiji and Ors. has laid down the following guidelines: 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. 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 then can happen is that a cause would be decided on merits after hearing the parties.
3. "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 on a rational commonsense pragmatic manner.
4. 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.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. 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 so.
Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the "State" which was seeking condonation and not a private party was altogether irrelevant.
Keeping in mind the above authoritative pronouncement of the Hon'ble Supreme Court, it is an admitted position that the words "sufficient cause" appearing in Sub-section (3) of Section 249 of the Act should receive a liberal construction so as to advance substantial justice.
8. Adverting to the facts of the present case, it is seen that on the receipt of the demand orders, the assessee has forwarded the copy to the tax consultant for further action. The assessee itself is not aware why the tax consultant has not filed the appeals. Moreover, in the first appeal there is a delay of only 30 days, which is not a substantial one. The assessee would not gain anything by filing the appeal late. There is no mala fide imputable to the assessee. The delay in our considered opinion in filing the appeal is a result of negligence or inaction on the part of the tax consultant. It must be remembered that in every case of delay there can be some lapse of the litigant concerned. That alone is not enough to turn down the plea and to shut the doors against him, If the explanation does not smack of mala fide or it is not put-forth as a part of dilatory strategy, the Courts must show utmost consideration to such litigant. As observed by the Hon'ble Supreme Court in the case of N. Balakrishnan (supra), the length of delay is no matter. It is the acceptability of the explanation. That is the only criteria before condoning the delay. At the most for the inaction or a little negligence, the assessee can be burdened with the cost. But his right of hearing of the appeal on merit ought not to be shut. Considering the overall facts and circumstances of the case and in the larger interest of justice, we are of the opinion that these appeals deserve to be allowed. We condone the delay in filing the appeal before the learned CIT(A) and restore the matter back to the learned first appellate authority, who will decide the appeals of the assessee on merit. However, these appeals are allowed subject to payment of cost of Rs. 3,000 each. In default of the payment of cost, the appeals be deemed to have been dismissed. The assessee should make payment of cost within 60 days to the Revenue from the receipt of this order.