Shri Kalpesh Chhaganlal Patel, Dist.Bhavnagar v. The Income tax Officer,Ward-2(3),, Bhavnagar

ITA 2685/AHD/2008 | 2004-2005
Pronouncement Date: 09-09-2010 | Result: Dismissed

Appeal Details

RSA Number 268520514 RSA 2008
Assessee PAN AHQPP0767L
Bench Ahmedabad
Appeal Number ITA 2685/AHD/2008
Duration Of Justice 2 year(s) 1 month(s) 11 day(s)
Appellant Shri Kalpesh Chhaganlal Patel, Dist.Bhavnagar
Respondent The Income tax Officer,Ward-2(3),, Bhavnagar
Appeal Type Income Tax Appeal
Pronouncement Date 09-09-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted C
Tribunal Order Date 09-09-2010
Date Of Final Hearing 01-09-2010
Next Hearing Date 01-09-2010
Assessment Year 2004-2005
Appeal Filed On 29-07-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'C' BEFORE SHRI BHAVNESH SAINI JM& SHRI A N PAHUJA AM ITA NO.2685/AHD/2008 (ASSESSMENT YEAR:-2004-05) SHRI KALPESHBHAI CHHAGANBHAI PATEL 130- VIJAYAJNAGAR DISTRICT: BHAVNAGAR [PAN: AHQPP 0767 L] V/S INCOME-TAX OFFICER WARD- 1(1) AAYAKAR BHAVAN NEAR JASONATH CHOWK NAKU BAUG BHAVNAGAR [APPELLANT] [RESPONDENT] ASSESSEE BY :- SHRI NIMISH VAYAWALA AR REVENUE BY:- SHRI K M MAHESH DR O R D E R A N PAHUJA: THIS APPEAL FILED BY THE ASSESSEE AGAINST AN ORDE R DATED 03-01-2008 OF THE LD. CIT(APPEALS)-XX AHMEDA BAD RAISES SOLE GROUND IN RESPECT OF AN ADDITION OF RS.7 00 0 00/- MADE BY THE AO ON ACCOUNT OF NON-GENUINE GIFT. 2 SINCE THE APPEAL FILED BY THE ASSESSEE WAS DELAY ED BY 64 DAYS IN THEIR APPLICATION FOR CONDONATION OF DELAY THE ASSESSEE SUBMITTED THAT THE IMPUGNED ORDER WAS SERVED ON A FAMILY MEMBER IN THE MONTH O F MARCH 2008 WHILE HE WAS OUT OF STATION DURING THE PERIOD OF MARCH TO JUNE 2008 AND THAT THE ORDER WAS MISPLACED BY THE PERSON WHO HAD TAKEN IT. IT IS FU RTHER MENTIONED THAT IT WAS BROUGHT TO HIS NOTICE ONLY A WEEK BEFORE THAT THE S AID ORDER HAD BEEN SERVED LONG BACK AND ULTIMATELY HE LOCATED THE ORDER. SINC E THE DELAY WAS NOT ATTRIBUTABLE TO HIS CARELESSNESS THE ASSESSEE PLEA DED THAT DELAY MAY BE CONDONED. THE LD. AR APPEARING BEFORE US MERELY RE ITERATED WHAT IS MENTIONED IN THE APPLICATION WITHOUT EVEN NAMING THE PERSON ON WHOM THE IMPUGNED ORDER HAD BEEN SERVED OR THE EXACT PERIOD WHEN THE ASSE SSEE WAS CONTINUALLY OUT OF STATION. INTER ALIA HE RELIED UPON THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF IMPROVEMENT TRUST. LUDHIANA VS UJAGAR S INGH & ORS. CIVIL APPEAL NO.2395 OF 2008 DATED 09-06-2010. IN NUTSHELL THE STATEMENTS MADE IN THE APPLICATION ARE NOT CORROBORATED BY ANY EVIDENCE WHATSOEVER. ON THE OTHER ITA NO.2685/AHD/2008 FOR AY 2004-05 SHRI KALPESHBHAI C PATEL 2 HAND THE LEARNED DR STRONGLY OBJECTED TO THE PRAYE R FOR THE CONDONATION OF DELAY AND SUBMITTED THAT THE REASONS GIVEN IN THE APPLICA TION WERE VAGUE AND NOT SUBSTANTIATED AT ALL. THE LD. DR ADDED THAT THE ASSESSEE IS REQUIRED TO EXPLAIN EACH DAY OF DELAY. 3. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUG H THE FACTS OF THE CASE. AS IS EVIDENT FROM THE AFORESAID AVERM ENTS IN THEIR APPLICATION FOR CONDONATION OF DELAY THE ONLY REASON ADDUCED IS T HAT THE ASSESSEE WAS OUT OF STATION DURING MARCH TO JUNE 2008 AND THAT THE IMPU GNED ORDER SERVED UPON A FAMILY MEMBER WAS MISPLACED AND IT WAS ONLY LATER B ROUGHT TO HIS NOTICE. THE RELEVANT DETAILS AS TO WHICH FAMILY MEMBER RECEIV ED THE IMPUGNED ORDER OR THE EXACT DATES WHEN THE ASSESSEE WAS CONTINUALLY OUT OF STATION OR EVEN WHO BROUGHT TO HIS NOTICE THAT THE IMPUGNED ORDER HAD B EEN SERVED LONG BACK HAVE NOT BEEN PLACED BEFORE US. APPARENTLY THE AVERMEN TS IN THE APPLICATION ARE VAGUE AND UNSUBSTANTIATED AS ALSO ARE DEVOID OF BAS IS. THE LD. AR APPEARING BEFORE US DID NOT ESTABLISH AS TO HOW THE UNSUBSTA NTIATED REASONS IN THE APPLICATION ESTABLISHED SUFFICIENT CAUSE TOWARDS DELAY OF 64 DAYS IN FILING THE APPEAL . THE LD. AR DID NOT EXPLAIN THE CIRCUMSTAN CES IN WHICH THE ASSESSEE WAS CONTINUALLY OUT OF STATION BETWEEN MARCH TO JUN E 2008. IN THESE CIRCUMSTANCES ESPECIALLY WHEN LACK OF BONA FIDES I S EVIDENT WE ARE OF THE OPINION THAT IT IS NOT SUFFICIENT TO MAKE A PERFUNC TORY AND GENERAL STATEMENT THAT THE ASSESSEE WAS OUT OF STATION OR THAT ORDER SERV ED UPON A FAMILY MEMBER WAS MISPLACED. EVEN OTHERWISE THE ASSESSEE HAS NOT EXP LAINED AS TO WHY THE APPEAL COULD NOT BE FILED IMMEDIATELY AFTER HIS RET URN . 3.1 IN THE LIGHT OF AFORESAID FACTS THE RE BEING NO SUFFICIENT CAUSE FOR DELAY IN FILING THE APPEAL THERE IS NO ALTERNATIVE BUT T O REJECT THE APPLICATION OF THE ASSESSEE FOR CONDONATION OF DELAY IN FILING THE APP EAL BY 64 DAYS. REGARDING SUFFICIENT CAUSE IN THE CASE OF GOPAL FILMS VS. C IT AND OTHERS 237 ITR 655(KAR) IT WAS HELD BY THE HONBLE COURT THAT WHENEVER A PARTY WANTS DELAY TO BE CONDONED HE SHOULD SHOW SUFFICIENT CAUSE. IF NO CAUSE IS SHOWN AT ALL THE ONLY ITA NO.2685/AHD/2008 FOR AY 2004-05 SHRI KALPESHBHAI C PATEL 3 CONCLUSION THAT CAN BE REACHED IS THAT THE DELAY CA NNOT BE CONDONED PARTICULARLY WHEN LACK OF BONA FIDES IS E VIDENT. 3.2 THE RECENT JUDICIAL APPROACH SHOWS THAT THE COURTS HAVE ADOPTED LIBERAL APPROACH IN ENTERTAINING THE APPLICATION FOR CONDON ATION OF DELAY . HOWEVER WHILE DECIDING THE PRAYER FOR CONDONATION OF DELAY THE C OURT CANNOT IGNORE OR GIVE A GO-BY TO THE BASIC PRINCIPLE THAT THE ONUS IS ALWAY S ON THE ASSESSEE TO PROVE THE EXISTENCE OF SUFFICIENT CAUSE AND THERE IS NO PRESU MPTION THAT THE DELAY OCCASIONED IN THE FILING OF THE APPEAL IS ALWAYS BO NA FIDE . THE LAW OF LIMITATION PRESCRIBED IN THE PROVISIONS OF SECTION 253(5) OF T HE ACT ENVISAGES THAT THERE SHOULD HAVE BEEN A SUFFICIENT CAUSE FOR NOT PRESENT ING THE APPEAL WITHIN THE PERIOD AS PRESCRIBED. WHERE THE ASSESSEE APPLICANT HAS FAILED TO SHOW SUFFICIENT CAUSE FOR CONDONATION OF DELAY THE APPLICATION FOR CONDONATION OF DELAY IS LIABLE TO BE REJECTED. IN THE CASE IN HAND THE STATEMENT S MADE BY THE ASSESSEE IN THEIR APPLICATION FOR CONDONATION OF DELAY ARE NOT CORROB ORATED BY ANY EVIDENCE AT ALL . RATHER INACTION AND NEGLIGENCE GALORE. EVEN THOUGH A LIBERAL APPROACH HAS TO BE ADOPTED BUT THAT DOES NOT MEAN THAT ANY PLEA WITHO UT ANY PLAUSIBLE OR ACCEPTABLE BASIS AND NOT EVEN HAVING SEMBLANCE OF RATIONALITY HAS TO BE ACCEPTED AND DELAY HAS NECESSARILY TO BE CONDONED. THAT SHALL BE AGAINST THE VERY SPIRIT OF LAW. PRESCRIPTION OF TIME-LIMIT FOR FILING APPEALS BECOMES MEANINGLESS IN SUCH EVENT. AT THE SAME TIME THE AS SESSEE MUST SHOW THAT HE WAS DILIGENT ALL ALONG IN TAKING APPROPRIATE STEPS AND THE DELAY WAS CAUSED NOTWITHSTANDING HIS DUE DILIGENCE. IT IS THE PARTY CONCERNED TO SUBSTANTIATE THE REASONS FOR DELAY AND IT IS NOT THE FUNCTION OF THE APPELLATE AUTHORITY TO FIND THE CAUSE OF THE DELAY. THE APPELLATE AUTHORITY HAS TO EXAMINE WHETHER SUFFICIENT CAUSE HAS BEEN SHOWN BY THE PARTY FOR CONDONING THE DELAY AND WHETHER SUCH CAUSE IS ACCEPTABLE OR NOT. THE WORD 'SUFFICIENT CA USE' AS ENUMERATED IN SECTION 253(5) OF THE ACT IN THE CONTEXT OF CONDONATION OF DELAY SHOULD BE GIVEN A LIBERAL CONSTRUCTION SO AS TO GIVE SUBSTANTIAL JUSTICE BUT ONLY WHEN NO NEGLIGENCE OR INACTION OR WANT OF BONA FIDE IS IMPUTABLE TO THE P ARTY CONCERNED. THE DECISION OF THE HONBLE APEX COURT IMPROVEMENT TRUST. LUDHIANA (SUPRA) WOULD NOT COME TO THE RESCUE OF THE ASSESSEE SINCE THE ASSESSEE HAS N OT ESTABLISHED SUFFICIENT ITA NO.2685/AHD/2008 FOR AY 2004-05 SHRI KALPESHBHAI C PATEL 4 CAUSE OR HIS BONAFIDES. IN THE PRESENT CASE NOT O NLY THAT REASONS HAVE NOT BEEN SUBSTANTIATED RATHER FOR MORE THAN 64 DAYS THE AS SESSEE REMAINED NEGLIGENT AND DID NOT INITIATE ANY STEPS AT ALL. INACTION AND WANT OF DILIGENCE ON THE PART OF THE APPLICANT WOULD NOT ENTITLE THE APPLICANT TO TH E BENEFIT OF THE PROVISIONS OF SECTION 253(5) OF THE ACT. 3.3. IN THE CASE OF SITARAM RAM CHARAN [1959-60] 17 FJR 379 ; AIR 1960 SC 260 THE HONBLE SUPREME COURT OBSERVED THA T THE WHOLE OF THE PERIOD OF DELAY WAS REQUIRED TO BE EXPLAINED WHICH WOULD INDICATE EVEN THE PERIOD PRESCRIBED BY THE LAW OF LIMITATION. HON'BLE SUPREM E COURT IN THE CASE OF VEDABAI ALIAS VAIJAYANATABAI BABURAO PATIL V. SHANTARAM BAB URAO PATIL [2002] 253 ITR 798 MADE A DISTINCTION BETWEEN THE CASE WHERE THERE IS INORDINATE DELAY AND WHERE THE DELAY IS OF A FEW DAYS. THE HON'BLE APEX COURT HELD AS UNDER: IN EXERCISING DISCRETION UNDER SECTION 5 OF T HE LIMITATION ACT THE COURTS SHOULD ADOPT A PRAGMATIC APPROACH. A DISTINCTION MUST BE MADE BETWEEN A CASE WHERE THE DELAY IS INORDINATE A ND A CASE WHERE THE DELAY IS OF A FEW DAYS. WHEREAS IN THE FO RMER CASE THE CONSIDERATION OF PREJUDICE TO THE OTHER SIDE WI LL BE A RELEVANT FACTOR SO THE CASE CALLS FOR A MORE CAUTIO US APPROACH BUT IN THE LATTER CASE NO SUCH CONSIDERATION MAY AR ISE AND SUCH A CASE DESERVES A LIBERAL APPROACH. NO HARD AND FAST RULE CAN BE LAID DOWN IN THIS REGARD. THE COURT HAS TO E XERCISE THE DISCRETION ON THE FACTS OF EACH CASE .............. .. 3.4 IN THE CASE OF COMMISSIONER O F INCOME-TAX.VS RAM MOHAN KABRA(257 ITR 773(PB) IT WAS OBSERVED BY THE HONB LE COURT THE PROVISIONS RELATING TO PRESCRIPTION OF LIMI TATION IN EVERY STATUTE MUST NOT BE CONSTRUED SO LIBERALLY THAT IT WOULD HAVE THE EFFECT OF TAKING AWAY THE BENEFIT ACCRUING TO THE O THER PARTY IN A MECHANICAL MANNER. WHERE THE LEGISLATURE SPELLS OUT A PERIOD OF LIMITATION AND PROVIDES FOR POWER TO CONDONE THE DE LAY AS WELL THERE SUCH DELAY CAN BE CONDONED ONLY FOR SUFFICIEN T AND GOOD REASONS SUPPORTED BY COGENT AND PROPER EVIDENCE. NO W IT IS A SETTLED PRINCIPLE OF LAW THAT THE PROVISIONS RELATI NG TO SPECIFIED PERIOD OF LIMITATION MUST BE APPLIED WITH THEIR RIG OUR AND EFFECTIVE CONSEQUENCES. IN THIS REGARD REFERENCE CAN BE MADE TO THE LATEST LAW IN THE CASE OF P.K. RAMACHANDRAN V. STATE OF KERALA AIR 1 998 SC 2276. THE RELEVANT PORTION READS AS UNDER: ITA NO.2685/AHD/2008 FOR AY 2004-05 SHRI KALPESHBHAI C PATEL 5 LAW OF LIMITATION MAY HARSHLY AFFECT A PARTICULAR PARTY BUT IT HAS TO BE APPLIED WITH ALL ITS RIGOUR WHEN T HE STATUTE SO PRESCRIBES AND THE COURTS HAVE NO POWER TO EXTEND T HE PERIOD OF LIMITATION ON EQUITABLE GROUNDS. THE DISCRETION EXERCISED BY THE HIGH COURT WAS THUS NEITHER PROPER NOR JUDIC IOUS. THE ORDER CONDONING THE DELAY CANNOT BE SUSTAINED. THIS APPEAL THEREFORE SUCCEEDS AND THE IMPUGNED ORDER IS SET A SIDE. CONSEQUENTLY THE APPLICATION FOR CONDONATION OF DE LAY FILED IN THE HIGH COURT WOULD STAND REJECTED AND THE MISCELL ANEOUS FIRST APPEAL SHALL STAND DISMISSED AS BARRED BY TIM E. NO COSTS.' 3.5 IN THE CASE OF STATE OF WEST BENG AL VS. ADMINISTRATOR HOWRAH MUNICIPALITY AIR 1972 SC 749(SC) IT WAS OBSERVED THAT THE EXPRESSION SUFFICIENT CAUSE SHOULD BE GIVEN A LIBERAL CONSTR UCTION SO AS TO ADVANCE SUBSTANTIAL JUSTICE WHEN NO NEGLIGENCE OR INACTION OR WANT OF BONAFIDES IS IMPUTABLE TO A PARTY. 3.6 THE ITAT IN THE CASE OF SRI VENKATESA PAPER AND BOARDS LTD. VS. DCIT 98 ITD 200 HELD THAT IN GRANTING INDULGE NCE AND CONDONATION OF DELAY APPELLATE AUTHORITY MUST BE SATISFIED THAT THERE H AD BEEN DILIGENCE ON THE PART OF THE APPELLANT. IN THE INSTANT CASE THERE IS NO MAT ERIAL BEFORE US ESTABLISHING DILIGENCE ON THE PART OF THE ASSESSEE EVEN WHEN RE ASONS GIVEN IN THE APPLICATION REMAINED TO BE SUBSTANTIATED. 3.7 IN THE CASE OF VINAY EXTRACTION (P) LTD. V. VIJAY KHANNA [2004] 271 ITR 450 (GUJ) IT WAS HELD BY THE HONBLE JURISDICTIONAL H IGH COURT THAT IT IS TRUE THAT THE APEX COURT HAS HELD THAT THE COURT SHOULD ADOPT A LIBERAL APPROACH IN CONSIDERING THE APPLICA TION FOR CONDONATION OF DELAY AND THAT SUBSTANTIAL JUSTICE D ESERVES TO BE PREFERRED OVER TECHNICAL CONSIDERATIONS. HOWEVER I T IS EQUALLY WELL SETTLED THAT A PERSON INVOKING THE DISCRETION OF TH E APPELLATE OR REVISIONAL AUTHORITY BEYOND THE PRESCRIBED PERIOD O F LIMITATION IS REQUIRED TO SHOW SUFFICIENT CAUSE WHICH WOULD INCLU DE SHOWING THAT THE PETITIONER/APPELLANT WAS EITHER BONA FIDE PURSU ING HIS REMEDIES OR WAS PREVENTED BY SUFFICIENT CAUSE FROM PURSUING HIS REMEDIES. WHETHER SUFFICIENT CAUSE IS MADE OUT OR NOT IS ALWA YS A QUESTION OF FACT DEPENDING UPON THE FACTS AND CIRCUMSTANCES OF EACH CASE AND HAS TO BE ESTABLISHED ON RECORD. AN APPLICATION SEE KING CONDONATION OF DELAY HAS ALSO TO ESTABLISH THAT THERE WAS NO ITA NO.2685/AHD/2008 FOR AY 2004-05 SHRI KALPESHBHAI C PATEL 6 NEGLIGENCE OR INACTION OR WANT OF BONA FIDES AND TH AT THE RIGHT GRANTED UNDER LAW TO CHALLENGE THE ORDER WAS NOT AB ANDONED . IT CANNOT BE OVERLOOKED THAT ON EXPIRY OF THE PERIOD O F LIMITATION PRESCRIBED FOR SEEKING LEGAL REMEDY A CORRESPONDIN G RIGHT ACCRUES IN FAVOUR OF THE OTHER PARTY AND THE SAME SHOULD NO T BE LIGHTLY INTERFERED WITH. 3.8 IN SAURASHTRA CEMENT AND CHEMICAL INDUSTRIES LTD. V. CIT [1978] 115 ITR 27 (GUJ) THE COMMISSIONER OF INCOME -TAX REFUSED TO CONDONE THE DELAY IN FILING REVISION APPLICATION ALTHOUGH THE P ETITIONER HAD EXPLAINED THAT DURING THE INTERVENING PERIOD THE PETITIONER WAS PU RSUING HIS REMEDIES OF APPEAL BEFORE THE APPELLATE ASSISTANT COMMISSIONER AND THE REAFTER BEFORE THE INCOME- TAX APPELLATE TRIBUNAL. HONBLE GUJRAT HIGH COURT F OLLOWING THE DECISIONS OF THE APEX COURT IN DINABANDHU SAHU V. JADUMONI MANGARAJ AIR 1954 SC 411 AND RAMLAL V. REWA COALFIELDS LTD. AIR 1962 SC 361 HE LD THAT THE WORDS SUFFICIENT CAUSE (IN SECTION 5 OF THE LIMITATION ACT) SHOULD RECEIVE A LIBERAL CONSTRUCTION SO AS TO ADVANCE SUBSTANTIAL JUSTICE WHEN NO NEGLIGENCE NOR INACTION NOR WANT OF BONA FIDE IS IMPUTABLE TO THE APPELLANT. IT WAS FURTHER HELD THAT WHILE CONSIDERING SUCH AN APPLICATION WHAT IS TO BE SEEN IS WHETHER NEGLIGENCE OR INACTION OR WANT OF BONA FIDES IS IMPUTABLE TO THE PARTY CONCERNED AND WHETHER SUBSTANTIAL JUSTICE WOULD BE ADVANCED BY CONDONING THE DELAY AND AGAIN IN EXERCISING THE JUDICIAL DISCRETION IN CONDONING THE DELAY THIS DISCRETION LIKE THE OTHER JUDICIAL DISCRETIONS MUST BE EXERCISED WITH V IGILANCE AND CIRCUMSPECTION ACCORDING TO JUSTICE COMMONSENSE AND SOUND JUDGMEN T. 3.9 HON'BLE MADHYA PRADESH HIGH COURT IN THE CA SE OF NIHALKARAN V. CWT [1989] 175 ITR 14 HAS HELD AS UNDER: 'THE BURDEN IS ON THE PARTY CLAIMING CONDONATION OF DELAY TO PLACE BEFORE THE COURT IN CLEAR AND EXPLICIT TERMS ALL FACTS ON WH ICH THE PARTY RELIES SO THAT THE COURT CAN COME TO THE CONCLUSION THAT IT IS NOT A C ASE OF WANT OF DILIGENCE OR INACTION ON THE PART OF THE APPLICANT. IN THE INSTA NT CASE THE APPLICANT HAS FAILED TO PLACE ON RECORD ALL THESE FACTS. INACTION OR WAN T OF DILIGENCE ON THE PART OF THE APPLICANT WOULD NOT ENTITLE THE APPLICANT TO THE BE NEFIT OF THE PROVISIONS OF SECTION 5 OF THE LIMITATION ACT. IN OUR OPINION THEREFORE THE APPLICANT HAS FAILED TO MAKE OUT A CASE THAT THERE WAS SUFFICIENT CAUSE FOR DELA Y IN FILING THE APPLICATION UNDER SECTION 27(3) OF THE ACT. THE APPLICATION FOR CONDO NATION OF DELAY IS ACCORDINGLY ITA NO.2685/AHD/2008 FOR AY 2004-05 SHRI KALPESHBHAI C PATEL 7 REJECTED. AS THE APPLICATION UNDER SECTION 27(3) OF THE ACT IS BARRED BY LIMITATION IT DESERVES TO BE REJECTED ON THIS GROUND ALONE.' IN THE AFORESAID CASE THE QUES TION THAT AROSE FOR CONSIDERATION WAS WHETHER THE APPLICANT HAS MADE OUT A CASE FOR CONDO NATION OF THE DELAY. THE ONLY GROUND URGED IN SUPPORT OF THE APPLICATION UNDER SE CTION 5 OF THE LIMITATION ACT WAS THAT THE CLERK OF THE APPLICANT HAD TAKEN THE C ASE PAPERS TO THE OFFICE OF THE COUNSEL BUT THOSE PAPERS 'GOT MIXED UP IN THE DISPO SED OF FILES'. IN SUPPORT OF THIS GROUND AN AFFIDAVIT HAS BEEN FILED BY THE CLERK OF THE APPLICANT. THE RELEVANT PORTION OF THAT AFFIDAVIT WAS AS FOLLOWS : 'THAT I OBTAINED THE CASE PAPERS FROM R. D. JOSHI A ND CO. FOR BEING TAKEN TO COUNSEL AND ACCORDINGLY HAD TAKEN THE SAME TO TH E COUNSEL'S OFFICE. HOWEVER THE FILE GOT MIXED UP IN THE 'DISPOSED OF' FILES. T HIS REFERENCE SHOULD HAVE BEEN FILED BY JULY 11 1984 BUT WHEN ON OR ABOUT JULY 1 THE PAPERS WERE SOUGHT THE FILE COULD NOT BE TRACED IN SPITE OF DILIGENT SEARC H IN THE OFFICE OF THE APPLICANT AND ALSO COUNSEL. IT WAS LOCATED ONLY ON OR ABOUT OCTOB ER 8 1984 WHEN THE DISPOSED OF FILES WERE INSPECTED FOR THE RECORD OF ANOTHER C ASE IN WHICH AN EXECUTION HAD TO BE FILED.'. THE HONBLE COURT OBSERVED THE AFORESAID AFFIDAVIT DOES NOT DISCLOSE WHETHER THE PAPERS WERE HANDED OVER BY THE CLERK OF THE APPLICANT TO THE CO UNSEL. THE COUNSEL HAS NOT FILED ANY AFFIDAVIT. THE AFFIDAVIT OF THE APPLICANT'S CLERK DOES NOT ALSO DISCLOSE WHAT STEPS WERE BEING TAKEN BY THE APPLICANT FOR FILING AN APPLICATION UNDER SECTION 2 7(3) OF THE ACT FROM JULY 11 WHEN THE APPLICATION SHOULD HAVE BEEN FILED TILL OCTOBER 8 WHEN THE PAPERS ARE ALLEGED TO HAVE BEEN LOCATED. 3.10 IN MADHU DADHA VS THE ASSISTANT COMMISSIONE R HONBLE MADRAS HIGH COURT IN THEIR DECISION DATED 23.6.2009 IN TC(A). NO. 421 OF 2009 WHILE REFERRING TO THE AFORESAID DECISION OF THE HONBLE APEX COURT IN P.K. RAMACHANDRAN V. STATE OF KERALA OBSERVED THAT 14. AT THIS JUNCTURE WE HAVE TO BE GUIDE D BY THE JUDGMENT REPORTED IN [1990] 1 LLN 457 IN THE CASE OF T.N.M. BANK LTD. V. APP. AUTY. SHOPS ACT. IN THAT PARTICULAR CASE THE DIVISION BENCH OF THIS COURT HAS HELD THAT '.................. WE ARE OF THE VIEW THAT THE QUE STION OF LIMITATION IS NOT MERELY A TECHNICAL CONSIDERATION. RULES OF LIMITATION ARE BASED ON PRINCIPLES OF SOUND POLICY AND PRINCIPLES OF EQUITY. IS A LITIGAN T LIABLE TO HAVE A DAMOCLES' SWORD HANGING OVER HIS HEAD INDEFINITELY FOR A PERIOD TO BE DETERMINED AT THE WHIMS AND FANCIES OF THE OPPONENT ?' IN THAT DECISION ITA NO.2685/AHD/2008 FOR AY 2004-05 SHRI KALPESHBHAI C PATEL 8 THIS COURT HAS HELD THAT THE DELAY OF 285 DAYS IN P REFERRING THE APPEAL COULD NOT BE CONDONED. IT WAS HELD THAT THE CONDONA TION OF DELAY WAS NOT JUSTIFIED ON FACTS AND EVIDENCE OF THE CASE. AS RIG HTLY POINTED OUT THAT THE RULES OF LIMITATION ARE BASED ON PRINCIPLES OF SOUN D PUBLIC POLICY AND PRINCIPLES OF EQUITY. THOUGH THERE IS NO PRESUMPTIO N THAT THE DELAY IS OCCASIONED DELIBERATELY OR ON ACCOUNT OF CULPABLE N EGLIGENCE IF THE ADMITTED FACTS IN THAT CASE ARE TAKEN NOTE OF THER E IS NO DOUBT THAT THE DELAY ON THE PART OF THE APPELLANT IS DELIBERATE AN D THE APPELLANT IS CLEARLY GUILTY OF CULPABLE NEGLIGENCE. SUCH NEGLIGENT ATTIT UDE OF THE APPELLANT WAS NOT TAKEN CARE TO PRESERVE THE RIGHT OF APPEAL AND HAVING BEEN SLEPT OVER FOR MORE THAN 558 DAYS AND NOT EXPLAINED THE DELAY WITHOUT ANY REASONABLE DOUBT THE APPELLANT CANNOT AVAIL SYMPAT HY OR DISCRETION OF THIS COURT 3.11 IN VIEW OF THE AFORESAID OBSERVATIONS HONBL E HIGH COURT CONCLUDED THAT THE DISCRETION HAVING BEEN RIGHTLY REFUSED BY THE T RIBUNAL THERE WAS NO SUFFICIENT REASON OR CAUSE TO INTERFERE WITH THE ORDER PASSED BY THE TRIBUNAL. IN THIS CASE THE ASSESSEE FAILED TO EXPLAIN THE SUFFICIENT CAUSE OR REASON BY GIVING NECESSARY DETAILS AS TO HOW THE DELAY OF 558 DAYS FROM JANUAR Y 2007 TO THE DATE OF FILING THE APPEAL HAD OCCURRED. HONBLE HIGH COURT IN THIS C ASE QUOTED THE FOLLOWING FINDINGS OF THE ITAT . FROM THE FACTS IT SEEMS THAT THE ASSEESSEE WA S NEGLIGENT BY NOT TAKING THE NECESSARY STEP FOR FILING THE APPEAL WITHIN TH E TIME PRESCRIBED BY THE STATUTE AND THEREBY FROM THE CONDUCT OF THE ASSESSEE IT SE EMS THAT THE ASSESSEE TAKES THE CONDONATION OF DELAY PROVISION AS GRANTED. IT I S WELL SETTLED LAW THAT THE COURT HELPS THE VIGILANT AND NOT INDOLENT. WE ARE THEREFO RE OF THE VIEW THAT THE ASSEESEE HAS NOT MADE OUT SUFFICIENT CAUSE FOR COND ONING THE DELAY IN THE PRESENT APPEAL. THE CAUSE SHOWN BY THE ASSESSEE IS MUCH LESS THAN THE SUFFICIENT CAUSE AS TO WHY THE APPEAL WAS NOT FILED WITHIN THE LIMITATION PERIOD AND EVEN AFTER THE EXPIRY OF LIMITATION PERIOD. SIN CE THE ASSESSEE HAS NOT GIVEN ANY DETAILS AS TO WHAT STEP SHE TOOK FOR FILING THE APPEAL WITHIN THE LIMITATION PERIOD OR AS EARLY AS POSSIBLE THEREFORE THE EXPLA NATION FOR DELAY OF 558 DAYS APPEARS TO BE TOO INSUFFICIENT UNSATISFACTORY AND UNREASONABLE FOR CONDONING THE INORDINATE DELAY. FROM THE AFFIDAVIT IT REFLECTS TH AT AVERMENTS ARE QUITE VAGUE AS NO DATES HAVE BEEN SPECIFIED AS TO WHEN THE PAPERS WERE HANDED FOR DRAFTING AN APPEAL AND ON WHAT OCCASION THE ENQUIRIES WERE MADE FOR PREPARATION AND FILING OF APPEAL. MOREOVER WHEN THE ASSESSEE NEVER WENT F OR SIGNING THE APPEAL HOW IT COULD HAVE BEEN FILED AS PRESUMED BY THE ASSESSE E. EVEN THE CONDUCT OF THE ASSESSEE BEFORE THIS TRIBUNAL IS ALSO NOT APPRECIAB LE AS VARIOUS NOTICE WERE SENT TO THE ASSESSEE AND FIRST TIME THE ASSESSEE APPEARE D ON 3.3.2008 WHEN THE APPEAL WAS HEARD. WE THEREFORE DECLINE TO CONDONE T HE DELAY OF 558 DAYS IN FILING THE PRESENT APPEAL. ACCORDINGLY THE PRAYER FOR CON DONATION OF DELAY IS REJECTED.' ITA NO.2685/AHD/2008 FOR AY 2004-05 SHRI KALPESHBHAI C PATEL 9 4. IN THE INSTANT CASE ALSO THE ASSEESSEE SEEMS TO BE QUITE NEGLIGENT BY NOT TAKING THE NECESSARY STEPS FOR FILING THE APPEAL W ITHIN THE TIME PRESCRIBED BY THE STATUTE .THE CONDUCT OF THE ASSESSEE REVEALS THAT THE ASSESSEE TAKES THE CONDONATION OF DELAY PROVISION AS GRANTED. THE ASS ESSEE HAS NOT GIVEN THE EXACT DATES OR THE CIRCUMSTANCES LEADING TO HIS BE ING OUT OF STATION CONTINUALLY FOR THE PERIOD MARCH TO JUNE 2008 NOR EVEN INDICAT ED THE PLACE OF HIS VISIT. THE EXPLANATION FOR DELAY OF 64 DAYS IS TOO INSUFFICI ENT UNSATISFACTORY AND UNREASONABLE FOR CONDONING THE INORDINATE DELAY. AS ALREADY MENTIONED EVEN THE STATEMENTS IN THE APPLICATION ARE QUITE VAGUE AS NO DATES HAVE BEEN SPECIFIED NOR THESE HAVE BEEN SUBSTANTIATED. THE LAW ASSIST S THOSE WHO ARE VIGILANT AND NOT THOSE WHO SLEEP OVER THEIR RIGHTS. THIS PRINCIP LE IS EMBODIED IN THE DICTUM : VIGILANTI -BUS NON DORMIENTIBUS JURA SUBSVENIUNT. I N GRANTING THE INDULGENCE AND CONDONING THE DELAY IT MUST BE PROVED BEYOND THE S HADOW OF DOUBT THAT THE ASSESSEE WAS DILIGENT AND WAS NOT GUILTY OF NEGLIGE NCE WHATSOEVER. THE SUFFICIENT CAUSE WITHIN THE CONTEMPLATION OF THE LIMITATION PR OVISION MUST BE A CAUSE WHICH IS BEYOND THE CONTROL OF THE PARTY INVOKING THE AID OF THE PROVISIONS. IN THE CASE OF RAMLAL V. REWA COALFIELDS LTD. (AIR 1962 SC 361) T HE HON BLE APEX COURT HELD THAT THE CAUSE FOR THE DELAY IN FILING THE APPEAL WHICH BY DUE CARE AND ATTENTION COULD HAVE BEEN AVOIDED CANNOT BE A SUFFICIENT CAU SE WITHIN THE MEANING OF THE LIMITATION PROVISION. T HE RULE OF LIMITATION ALSO CONTAINS A RULE OF JUSTI CE ESPECIALLY WHERE A PERSON CHOOSES NOT TO TAKE UP REQUISITE LEG AL REMEDIES FOR AN INORDINATE LENGTH OF TIME AND WITHOUT REASONABLE CAUSE THE TR IBUNAL SHOULD APPLY THE RULE OF LIMITATION. SEEKERS OF JUSTICE MUST COME WITH CLEAN HANDS. IN THE INSTANT CASE WE DO NOT FIND ANY REASONABLE CAUSE FOR CONDONING THE DELAY. 5.. IN THE LIGHT OF AFORESAID DECISIONS THE BURDEN IS ON THE PARTY CLAIMING CONDONATION OF DELAY TO PLACE BEFORE THE COURT IN CLEAR AND EXPLICIT TERMS ALL FACTS ON WHICH THE PARTY RELIES SO THAT THE COURT CAN CO ME TO THE CONCLUSION THAT IT IS NOT A CASE OF WANT OF DILIGENCE OR INACTION ON THE PART OF THE APPLICANT. INACTION OR WANT OF DILIGENCE ON THE PART OF THE APPLICANT WOUL D NOT ENTITLE THE APPLICANT TO THE BENEFIT OF THE PROVISIONS OF SECTION 253(5) OF THE ACT. IN THE CASE UNDER ITA NO.2685/AHD/2008 FOR AY 2004-05 SHRI KALPESHBHAI C PATEL 10 CONSIDERATION ADMITTEDLY THE ASSESSEE HAS NOT SH OWN ANY ACTION OR VIGILANCE FOR A PERIOD OF MORE THAN 64 DAYS AFTER THE IMPUGNED O RDER WAS SERVED UPON . IN THE FACTS OF THE PRESENT CASE THE ASSESSEE HAS NOT PROVED ANY INACTION OR NEGLIGENCE ON THE PART OF A THIRD PARTY MUCH LESS HAVE THEY PLEADED ANY ACTION OR VIGILANCE ON THEIR OWN PART. THE ASSESSEE DID NOT C ARE TO FILE AN APPEAL FOR 124 DAYS WHILE THE AVERMENTS MADE IN THE APPLICATION FOR CONDONATION OF DELAY ARE NOT CORROBORATED BY ANY EVIDENCE. 6. IN VIEW OF THE FOREGOING ESPECIAL LY WHEN THE ASSESSEE HAS NOT COME WITH CLEAN HANDS BEFORE US AND HAS ALSO FAILED TO ESTABLISH WITH COGENT AND PROPER EVIDENCE THAT THERE EXISTED SUFFICIENT CAUSE FOR NOT PRESENTING THE APPEAL WITHIN THE STIPULATED PERIOD AND HAS NOT ALSO SUBST ANTIATED HIS STATEMENTS IN THE APPLICATION FOR CONDONATION OF DELAY DELAY OF 64 DAYS IN FILING APPEAL CAN NOT BE CONDONED. ACCORDINGLY THE APPLICATION FOR CONDONAT ION OF DELAY IN FILING THE APPEAL IS REJECTED. AS THE APPEAL IS BARRED BY LIMI TATION IT DESERVES TO BE REJECTED ON THIS GROUND ALONE. THEREFORE WE DECLINE TO ADM IT THE APPEAL. 7 IN THE RESULT APPEAL IS DISMISSED IN LIMINE. ORDER PRONOUNCED IN THE COURT TODAY ON 9-09-2010 SD/- SD/- (BHAVNESH SAINI) JUDICIAL MEMBER (A N PAHUJA) ACCOUNTANT MEMBER DATE : 9-09-2010 COPY OF THE ORDER FORWARDED TO: 1. SHRI KALPESHBHAI CHHAGANBHAI PATEL 130-VIJAYAJN AGAR DISTRICT: BHAVNAGAR 2. THE ITO WARD-1(1) BHAVNAGAR 3. CIT CONCERNED 4. CIT(A)-XX AHMEDABAD 5. DR ITAT C BENCH AHMEDABAD 6. GUARD FILE BY ORDER DEPU TYREGISTRAR/ASSISTANT REGISTRAR ITAT AHMEDABAD