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Income Tax Appellate Tribunal – Kolkata
Assistant Commissioner Of Income … vs Taggas Industries Development … on 7 September, 2000
Equivalent citations: 2002 80 ITD 21 Kol
Bench: R Garg, Vice-, N Dash


ORDER

R.P. Garg, Vice-President

1. This is an appeal by the Revenue against the order of the GIT(A) lor the asst. yr. 1991-92.

2. The appeal is late by 13 days beyond the statutory fixed time-limit of 60 days from the date of receipt of the order of the CIT(A) by the CIT. The relevant dates are–

  Date of receipt of CIT(A)'s order            29-8-1995
60 days expired on                          27-10-1995
Appeal filed on                              9-11-1995
Delay                                          13 days
 

A petition for condonation was filed by the AO on 10th Nov., 1995 giving the following reasons in which the entire delay was attributed to CIT’s office, which reads as under:–

“27-10-1995

That the festive season
hampered the normal office work for a long days which resulted in submission
of appeal scrutiny report delayed to the higher authorities and as such no
authorisation was received from the CIT on that day.

28-10-1995

It was a holiday being
Saturday.

29-10-1995

It was a holiday being
Sunday.

30-10-1996

That no authorisation for
filing of second appeal before the Tribunal, Calcutta in the matter was
received from the CIT.

31-10-1995

Do-

1-11-1995

That no authorisation for
filing of second appeal therefore the Tribunal, Calcutta in the matter was
received from the CIT.

2-11-1995

Do

3-11-1996

Do-

4-11-1995

That it was a holiday being
Saturday.

5-11-1996

That it was a holiday being
Sunday.

6-11-1995

That no authorisation for
filing of second appeal before the Tribunal, Calcutta in the matter was
received from the CIT on that day.

7-11-1995

That it was a holiday being
‘Guru Nanak’s birth day’.

8-11-1995

That necessary authorisation
for filing of second appeal before the Tribunal, Calcutta was received from
the CIT at the last hour. Hence, papers complete in all respects could not be
prepared on that day.

9-11-1996

That necessary papers
complete in all respects could not be prepared on that day.

In the circumstances, I am filing the appeal in question before your honour today on 10th Nov., 1995 which may kindly be accepted after condonation of delay of 14 days.”

Another explanation on 29th June, 2000 was given by the CIT’s office giving an impression that the delay was partly as AO’s level and partly at the level of the CIT’s office by supplementing the reasons in the following manner :–

“2. The reasons for delay at the level of the AO and the Range D.C. from 28th Nov., 1995 to 1st Nov., 1995 for 5 days as shown in para 1 above are chronologically tabulated as under for the sake of convenience:–

28-10-1995

Saturday

29-10-1995

Sunday

30-10-1995

Authorisation not received
by the AO from the CIT, as Appeal Scrutiny Report was prepared and sent by AO
to the Range D.C. on this day.

31-10-1996

Authorisation not received
by the AO from the CIT, as Range D.C. prepared comments on this day.

1-11-1996

Authorisation not received
by the AO from the CIT, as Range D.C. submitted the Appeal Scrutiny Report to
the CIT on this day.

3. Now, I proceed to explain the delay for 7 days from 2nd Nov., 1995 to 8th Nov., 1995 occurred in the office of the CIT, WB-VI, Calcutta datewise as per record as under:-

2-11-1995

The office prepared judicial
file on this day.

3-11-1996

Judicial file put up to ITO.

Hqis. Judl. Who prepared the note for the CIT.

4-11-1995

Saturday

5-11-1995

Sunday

6-11-1995

Note prepared by the ITO,
Hqrs. Jud). Put upto CIT who gave direction to file 2nd appeal.

7-11-1995

Holiday on account of Gum
Nanak’s Birth day.’

8-11-1995

Requisition/authorisation
for filing 2nd appeal sent to the AO.”

3. The internal procedure which can be culled out from the reasons given aforesaid for filing the 2nd appeal seems to be :

(i) AO prepares the scrutiny report and suggests whether 2nd appeal should be filed or not and that report is sent to the D.C.;

(ii) D.C. prepares his comments on such report and sends the matter to CIT, i.e. CIT;

(iii) The office of the CIT prepares the judicial file;

(iv) Such judicial file is sent to ITO, HQ. (Jdl.) who prepares the note for CIT;

(v) The file with the note of the ITO, HQ. (Jdl.) is then put to CIT for direction/authorisation to file the appeal;

(vi) Requisition is sent for such authorisation to the AO;

(vii) The AO, prepares the papers–copies of the assessment order CIT(A)’s order, grounds of appeal before the CIT(A), etc. etc.;

(viii) Then it again goes back to the ITO, HO (Jdl.) for filing the appeal, who along with his letter sends the appeal to the Asstt. Registrar, Tribunal.

4. Each stage takes time at least a day, according to the Revenue, if not more. In such circumstances we fail to understand why the process for filing the appeal is not started well in advance so that everything is completed within the statutory fixed time of 60 days and if the delay is there for any unforeseen circumstances, it can be condoned. When the Department knows that the process takes time and does not wake up the last day of the limitation period and even after that as it was in this case–the last day was 27th Aug., 1995 but AO himself prepared the scrutiny report on 30th Aug., 1995, it cannot be a sufficient and reasonable ground for seeking condonation. Law helps those who helps themselves and are vigilant and not those who sleep over the matter and wake up when the time has already run out or the train had left the station. How can one complain of the train having left when he himself was not ready and put on motion himself for going to the station? The sleeping was his choice and not by force of circumstances. As there is no unforeseen circumstances as shown to have been existed at the relevant time, we do not find any merit in the Revenue’s petitions for condonation.

5. It might be true that there was no mala fide intention or dilatory tactics in delaying the filing of appeal, but at the same time no reason at all has been brought on record to justify the delay and the timely action by the AO or as the case may be the CIT, who is the authority to direct the filing of appeal and at whose instance 2nd appeal is to be filed. Therefore, the decisions of the Supreme Court in N. Balakrishnan v. M. Krishnamurthy AIR 1998 SC 3222 and Collector, Land & Acquisition v. Mst. Katiji (1987) 167 ITR 471 (SC) would be of no help to the assessee.

6. Their Lordships of the Supreme Court in the case of Calcutta Municipal Corpn. v. P.K. Saraf AIR 1999 SC 738 have held that even if the Court should be liberal in condonation of delay, it should be inexcusable unless sufficient cause is shown. It is not the law that when an application seeking the condonation of delay is filed by the state or any authority, the Court must invariably condone the delay irrespective of whether sufficient cause is shown or not. Further, the Supreme Court in the case of State of West Bengal v. Howrah Municipality AIR 1972 SC 749 has held that the Department should give sufficient reasons for not filing the appeal within the period stipulated in the Act and no circumstances or event which arise after the expiry of limitation can constitute such cause. In view of the facts and circumstances of the present case leading to the delay for filing of. appeal before the expiry of the period of limitation as prescribed under Section 253(3) of the Act, the decision of the Supreme Court in the aforesaid case directly applies.

7. In view of the aforesaid, we have no option but to reject the petition of the Department for condonation of delay in filing of the appeal beyond the prescribed statutory period.

8. In the result, the appeal is dismissed in limine, that is without going into the merits of the grounds raised therein.


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