ITA No.107 of 2017 1 IN HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ITA No.107 of 2017 Date of decision: 24-05-2017 Shri Subodh Parkash Appellant Vs. Joint Commissioner of Income Tax, Yamuna Nagar ..Respondent CORAM: HON BLE MR. JUSTICE AJAY KUMAR MITTAL HON BLE MR. JUSTICE HARINDER SINGH SIDHU Present: Mr. Ruchesh Sinha, Advocate for appellant. Ajay Kumar Mittal,J. 1. appellant-assessee has filed present appeal under Section 260A of Income Tax Act, 1961(in short, Act ) against order dated 12.8.2016, Annexure A.6 passed by Income Tax Appellate Tribunal, Chandigarh Bench, Chandigarh (in short, Tribunal ) in ITA No.898/CHD/2015, for assessment year 2009-10, claiming following substantial questions of law:- (i) Whether on facts and circumstances of case, Income Tax Appellate Tribunal was correct in law in not condoning delay of 1050 days in filing appeal and holding same to be time barred? 1 of 9 ::: Downloaded on - 04-07-2017 11:15:05 ::: ITA No.107 of 2017 2 (ii) Whether on facts and circumstances of case, order of Income Tax Appellate Tribunal is not perverse as Income Tax Appellate Tribunal has not considered all reasons stated in affidavit/revised affidavit filed by appellant in support of delay in coming to conclusion that appeal is time barred? (iii) Whether on facts and circumstances of case, Income Tax Appellate Tribunal has taken hyper technical view of matter and has failed to consider issue holistically? 2. few facts relevant for decision of controversy involved as narrated in appeal may be noticed. appellant, individual is engaged in business of transportation and trading of rice, flours and molasses. He is placed at Yamuna Nagar. books of account of appellant-assessee were rejected by Assessing Officer by invoking provisions of Section 145(3) of Act. Assessing Officer applied net profit rate of 4.51% of carriage and handling charges received in case of business of transportation (M/s Citizen Roadlines) and applied net profit rate of 2% on gross turnover in respect of trading business (M/s Astha Trading Company) and determined income of assessee, vide assessment order dated 29.12.2011, Annexure A.1. Aggrieved by order, assessee filed appeal before Commissioner of Income Tax (Appeals) [CIT(A)]. Vide order dated 15.10.2012, Annexure A.2, CIT(A) dismissed appeal. Still not satisfied, assessee filed appeal before Tribunal. order was passed by CIT(A) on 15.10.2012 and same was received by assessee on 30.11.2012. appeal was to be filed before Tribunal within sixty days of receipt of order passed by 2 of 9 ::: Downloaded on - 04-07-2017 11:15:07 ::: ITA No.107 of 2017 3 CIT(A). last date for filing appeal was 30/31.1.2013. However, same was filed on 15.12.2015 by counsel for assessee and hence there was delay of 1050 days in filing appeal. At time of hearing, assessee submitted his revised affidavit and compilation of paper book containing relevant papers in support of delay caused in filing appeal. It was inter alia submitted by assessee that after marriage of his daughter was solemnized at Faridabad, there was continuous matrimonial dispute and her daughter was physically abused several times by her in-laws. Thus, assessee was not in stable condition of mind and could not check whether appeal had been timely filed before Tribunal or not. He further submitted that during relevant period, he suffered huge losses in business and his assets were taken over by HDFC Bank. Vide order dated 12.8.2016, Annexure A.6, Tribunal dismissed appeal on ground of delay holding that there was no correlation between late filing of appeal by assessee and matrimonial dispute of his daughter as marriage was solemnized prior to filing of appeal before Tribunal and thus, delay could not be condoned. Hence instant appeal by assessee before this court. 3. We have heard learned counsel for appellant-assessee. 4. Admittedly, assessment order was passed under section 143(3) of Act on 29.12.2011. appeal was filed by assessee before CIT(A) on 24.1.2012 which was decided on 15.10.2012. copy of order was received by assessee on 30.11.2012. appeal before Tribunal could be filed within sixty days from date of receipt of copy of order. last date for filing appeal was 30/31.01.2013. However, same was filed on 15.12.2015 and thus 3 of 9 ::: Downloaded on - 04-07-2017 11:15:07 ::: ITA No.107 of 2017 4 there was delay of 1050 days in filing appeal. reasons given by assessee regarding matrimonial dispute of his daughter and huge loss in his business were not found to be satisfactory by Tribunal. marriage of daughter of assessee was solemnized on 29.11.2010. It was categorically recorded by Tribunal that when assessee could file appeal before CIT(Appeals) having same reason earlier, there was no reason to believe that assessee was prevented by sufficient cause in not filing appeal before Tribunal within period of limitation. After considering matter, Tribunal rightly concluded that assessee failed to explain delay in filing appeal due to sufficient cause and dismissed appeal. relevant findings recorded by Tribunal read thus:- 5. We have considered rival submissions on point of limitation. In this case assessment order under section 143(3) of Act has been passed on 29.12.2011. assessee preferred appeal before learned CIT(Appeals) on 24.1.2012 and learned CIT(Appeals) decided appeal of assessee on 15.10.2012. date of marriage of daughter of assessee on 29.11.2010, thus, has no relevance and correlation with above dates. According to learned counsel for assessee, date of marriage of daughter of assessee is 29.11.2010 and soon after her marriage, there was trouble in her family matters. When marriage of daughter of assessee was solemnized prior to filing of appeal before learned CIT(Appeals) and according to version of assessee, matrimonial discord started soon after marriage, such reason was also there with assessee at time of filing of appeal before learned CIT(Appeals) because assessee filed appeal before learned CIT(Appeals) on 24.1.2012, therefore dispute in family of daughter of assessee has no relevance with delay in fling appeal before Tribunal. 4 of 9 ::: Downloaded on - 04-07-2017 11:15:07 ::: ITA No.107 of 2017 5 assessee successfully filed appeal before learned CIT(Appeals) on 24.1.2012 challenging assessment order and also prosecuted appeal before learned CIT(Appeals) during same period and learned CIT(Appeals) decided appeal of assessee on 15.10.2012. Therefore, physical abuse of daughter of assessee and marital discord and ultimately registration of FIR in matrimonial matter has no relevance and concern whatsoever with litigation of assessee in tax matter. When assessee could file appeal before learned CIT(Appeals) having same reason earlier, there was no reason to believe that assessee was prevented by sufficient cause in not filing appeal before Tribunal within period of limitation. Further, in application for condonation of delay assessee submitted that when impugned order was received on 30.11.2012, assessee had requested his counsel to file appeal before Tribunal but counsel did not file appeal due to some confusion. It would, therefore, clearly prove that assessee was aware of fact that after receipt of impugned order, assessee was required to file appeal before Tribunal within limitation so as to challenge rejection of books of account and application of higher NP rate in appeal before Tribunal. Contradictory stand is taken in application of condonation of delay. Therefore, there was no reason to believe that assessee was later on prevented by any sufficient cause for not filing appeal before Tribunal within period of limitation. Thus, explanation given by assessee does not inspire confidence and would not disclose any sufficient and good reason for explaining delay in filing appeal before Tribunal. 6.xxxxxxx 7. Considering above discussion, we are of view assessee failed to explain delay in filing appeal was due to sufficient cause therefore appeal of assessee shall have to be dismissed being time barred. application for 5 of 9 ::: Downloaded on - 04-07-2017 11:15:07 ::: ITA No.107 of 2017 6 condonation of delay is accordingly dismissed. Resultantly, appeal of assessee is treated as time barred and is accordingly dismissed. 5. Examining legal position relating to condonation of delay under Section 5 of Limitation Act, 1963 (in short, 1963 Act ), it may be observed that Supreme Court in Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corporation and another, (2010) 5 SCC 459 laying down broad principles for adjudicating issue of condonation of delay, in paras 14 & 15 observed as under:- 14. We have considered respective submissions. law of limitation is founded on public policy. legislature does not prescribe limitation with object of destroying rights of parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. idea is that every legal remedy must be kept alive for period fixed by legislature. To put it differently, law of limitation prescribes period within which legal remedy can be availed for redress of legal injury. At same time, courts are bestowed with power to condone delay, if sufficient cause is shown for not availing remedy within stipulated time. 15. expression sufficient cause employed in Section 5 of Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable courts to apply law in meaningful manner which sub serves ends of justice. Although, no hard and fast rule can be laid down in dealing with applications for condonation of delay, this Court has justifiably advocated adoption of liberal approach in condoning delay of short duration and stricter approach where delay is inordinate-Collector (L.A.) v. Katiji N. 6 of 9 ::: Downloaded on - 04-07-2017 11:15:07 ::: ITA No.107 of 2017 7 Balakrishnan v. M. Krishnamurthy and Vedabai v. Shantaram Baburao Patil. 6. It was further noticed by Apex Court in R.B. Ramlingam v. R.B. Bhavaneshwari 2009(1) RCR (Civil) 892 as under:- .....It is not necessary at this stage to discuss each and every judgment cited before us for simple reason that Section 5 of Limitation Act, 1963 does not lay down any standard or objective test. test of sufficient cause is purely individualistic test. It is not objective test. Therefore, no two cases can be treated alike. statute of limitation has left concept of sufficient cause delightfully undefined, thereby leaving to Court well-intentioned discretion to decide individual cases whether circumstances exist establishing sufficient cause. There are no categories of sufficient cause. categories of sufficient cause are never exhausted. Each case spells out unique experience to be dealt with by Court as such. It was also recorded that:- For aforestated reasons, we hold that in each and every case Court has to examine whether delay in filing special leave petition stands properly explained. This is basic test which needs to be applied. true guide is whether petitioner has acted with reasonable diligence in prosecution of his appeal/petition.... 7. From above, it emerges that law of limitation has been enacted which is based on public policy so as to prescribe time limit for availing legal remedy for redressal of injury caused. purpose behind enacting law of limitation is not to destroy rights of parties but to see that uncertainty should not prevail for unlimited period. Under Section 5 of 1963 Act, courts are empowered to condone 7 of 9 ::: Downloaded on - 04-07-2017 11:15:07 ::: ITA No.107 of 2017 8 delay where party approaching court belatedly shows sufficient cause for not availing remedy within prescribed period. meaning to be assigned to expression sufficient cause occurring in Section 5 of 1963 Act should be such so as to do substantial justice between parties. existence of sufficient cause depends upon facts of each case and no hard and fast rule can be applied in deciding such cases. 8. Apex Court in Oriental Aroma Chemical Industries Ltd. and R.B. Ramlingam's cases (supra) noticed that courts should adopt liberal approach where delay is of short period whereas proof required should be strict where delay is inordinate. Further, it was also observed that judgments dealing with condonation of delay may not lay down any standard or objective test but is purely individualistic test. court is required to examine while adjudicating matter relating to condonation of delay on exercising judicial discretion on individual facts involved therein. There does not exist any exhaustive list constituting sufficient cause. applicant/petitioner is required to establish that inspite of acting with due care and caution, delay had occurred due to circumstances beyond his control and was inevitable. 9. Learned counsel for assessee has not been able to point out any error in findings recorded by Tribunal or to controvert applicability of decisions given by Apex Court as mentioned above to facts of present case. explanation tendered by assessee does not satisfy test of sufficient cause as required under 8 of 9 ::: Downloaded on - 04-07-2017 11:15:07 ::: ITA No.107 of 2017 9 Section 5 of 1963 Act. Consequently, no substantial question of law arises and appeal stands dismissed. (Ajay Kumar Mittal) Judge May 24, 2017 (Harinder Singh Sidhu) gs Judge 9 of 9 ::: Downloaded on - 04-07-2017 11:15:07 ::: Subodh Parkash v. Joint Commissioner of Income-tax, Yamuna Nagar