Priya Soparkar 1 12 itxa 1269-17-o IN HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL (IT) NO.1269 OF 2017 Perfect Circle India Ltd. (Now known as Anand I-Power Ltd.) Appellant V/s. Assistant Commissioner of Income Tax Range 5 Respondent Mr.Sanjiv M. Shah, Advocate for Appellant. Mr.Nirmal Chandra Mohanty, Advocate for Respondent. CORAM : UJJAL BHUYAN & MILIND N. JADHAV, JJ. DATE : JANUARY 28, 2020 P.C.:- 1. Heard Mr.S.M.Shah, learned counsel for appellant; and Mr. N. C. Mohanty, learned standing counsel, revenue for respondent. 2. This appeal under Section 260A of Income Tax Act, 1961 (briefly Act hereinafter) has been preferred by assessee against order dated 28 th February, 2017 passed by Income Tax Appellate Uploaded on - 03/02/2020 Downloaded on - 04/02/2020 10:06:09 Priya Soparkar 2 12 itxa 1269-17-o Tribunal, Mumbai Bench C , Mumbai (briefly Tribunal hereinafter) in Income Tax Appeal No.3403/Mum/2014 for assessment year 2001-02. 3. From materials on record it is seen that related Income Tax Appeal No.3403/Mum/ 2014 was filed by appellant against order of Commissioner of Income Tax (Appeals) dated 1st November, 2004. However, there was delay of 3389 days in filing appeal for which appellant submitted application for condonation of delay. In support of application for condonation of delay, appellant also filed affidavit dated 31st October, 2015 and further affidavit on 8 th November, 2016. However, by order dated 28 th February, 2017 Tribunal declined to condone delay. 4. Hence, appeal. 5. Learned counsel for appellant submits that it was wrong on part of Tribunal to say that second affidavit was afterthought. Infact, second affidavit Uploaded on - 03/02/2020 Downloaded on - 04/02/2020 10:06:09 Priya Soparkar 3 12 itxa 1269-17-o explained first affidavit. That apart, appellant has got good case on merit. Without examining merit of appellant s appeal, same ought not to have been dismissed as being time-barred. In this connection learned counsel for appellant has placed before us compilation of various judgments, out of which he places reliance on Collector, Land Acquisition Vs. Mst. Katiji, 167 ITR 471 . He therefore submits that Tribunal ought to have taken into consideration merit of appeal and ought to have adopted liberal approach in considering question of delay. 6. Mr. Mohanty, learned standing counsel, revenue on other hand supports order of Tribunal and has placed reliance on decision of this court in case of Cenzer Industries Ltd., Mumbai Vs. Income Tax Officer dated 15th January, 2016 passed in Notice of Motion Nos.492 of 2015 and 493 of 2015 in Income Tax Appeal (L) Nos.2079 and 2077 of 2014, wherein this court declined to condone delay of 865 days. Uploaded on - 03/02/2020 Downloaded on - 04/02/2020 10:06:09 Priya Soparkar 4 12 itxa 1269-17-o 7. Submissions made by learned counsel for parties have been considered. 8. At outset, we may advert to impugned order passed by Tribunal, relevant portion of which is extracted hereunder:- 11. Thus examining present case on touchstone of above, we find that in this case there has been inordinate delay of about 10 years in filing appeal. Firstly, assessee had submitted that it was inadvertent error. In another affidavit assessee had tried to submit that appeal papers were prepared but were not filed without any reason by Chartered Accountant. submission is not supported for its veracity or reasoning. Furthermore, there is no rationale in allowing person to file appeal after ten years simply because ten years ago also he had thought of filing appeal. There can be many reasons why person having thought of filing appeal may decide not to pursue matter. Hence, contents of second submission cannot be treated but as afterthought. 9. We do not find any error or infirmity in view taken by Tribunal. Uploaded on - 03/02/2020 Downloaded on - 04/02/2020 10:06:09 Priya Soparkar 5 12 itxa 1269-17-o 10. In so far decision in Mst. Katiji (supra) is concerned, we find that it was matter arising out of land acquisition and in appeal filed by State of Jammu and Kashmir, there was delay of 4 days. It is in such circumstances that Supreme Court expressed view that each days delay is not required to be explained and pragmatic approach is required to be taken. 11. In decision of this court in case of Cenzer Industries Ltd. (supra) reference was made to above decision of Supreme court and it was held as under :- 5. It is settled position that application for condonation of delay has to be liberally construed, as held by Apex Court in various cases (see Collector, Land Acquisition v/s. Mst. Katiji, (1987) 167 ITR 471(SC). However, this liberal construction of sufficient cause while condoning delay has to be counter balanced by ensuring that law of limitation which provides for definite consequence on rights of parties does not become ineffective. rule of limitation is provided for general welfare of society so as to put period beyond which party cannot agitate issue in litigation. rationale for same is that Uploaded on - 03/02/2020 Downloaded on - 04/02/2020 10:06:09 Priya Soparkar 6 12 itxa 1269-17-o once litigation is decided, dispute must repose. This is particularly so, if party aggrieved by order does not agitate issue before appellate forum within time provided. opposite party can then proceed on basis that dispute is settled and arrange its affairs on that basis. Thus, if aggrieved party has not moved appellate forum within prescribed time, resulting in other securing accrued rights, then party moving application for condonation of delay, must endeavor to explain delay and show his bonafide in not having moved within time prescribed (i.e. not being diligent). law assist vigilant and not indolent as stated in LatinMaxim Vigilantsbus etnon dormientibus jura subveniunt. reasons for explaining delay has to be plausible and reasonable so that Court can exercise its discretion. Moreover, although party is not be required to explain reasons for not filing appeal within prescribed time, party must explain delay post period of limitation i.e. from expiry of period of limitation. 12. As is evident, there was delay of 3389 days in filing related appeal before Tribunal by appellant, Tribunal has returned clear finding that no sufficient cause was shown by appellant to explain huge delay. Period of delay is factor to be considered while considering delay condonation application; but more Uploaded on - 03/02/2020 Downloaded on - 04/02/2020 10:06:09 Priya Soparkar 7 12 itxa 1269-17-o importantly it is explanation for delay which is relevant. 13. In such circumstances, we are not inclined to interfere with impugned order passed by Tribunal. Appeal is devoid of merit and is accordingly dismissed. However, there shall be no order as to cost. (MILIND N. JADHAV, J.) (UJJAL BHUYAN, J.) . Uploaded on - 03/02/2020 Downloaded on - 04/02/2020 10:06:09 Perfect Circle India Ltd. (Now known as Anand I-Power Ltd.) v. Assistant Commissioner of Income-tax, Range-5