IT APPEAL NOS. 352 TO 356 (CHD.) OF 2015
[ASSESSMENT YEARS 1994-95 TO 1998-99]

H.L. KARWA, VICE-PRESIDENT

Parikshit Aggarwal for the Appellant. 
S.K. Mittal, DR for the Respondent.

ORDER

1. These appeals are filed by the assessee under section 253 of the Income Tax Act, 1961 (in short 'the Act') challenging the separate orders of the learned Commissioner of Income Tax (Appeals)-2, Chandigarh, all dated 16.1.2015 for assessment years 1994-95 to 1998-99, raising the following common ground:

"2. That on the facts, circumstances and legal position of the case, Worthy CIT(A) has erred in not allowing the condonation of delay, if any, in filing the present appeal by the appellant and has also erred in dismissing the appeal in limine which was against the principles of natural justice and also against the provisions of Income Tax Act."

The facts in a nutshell are as under :

2. The assessee is an individual and was a Government employee during the period relevant to the assessment years under consideration. During the course of inquiry proceedings on the basis of some information received by the Department to the effect that the assessee had taxable income during the previous years relevant to the assessment years under consideration, notices under section 148 of the Act were issued to the assessee, which were duly served upon him. In response to the said notices, the assessee filed the returns of income. Thereafter, statutory notices under sections 142(1) and 143(2) of the Act were issued to the assessee, which were duly served upon the assessee. According to the Assessing Officer, the summons issued by him were not complied with by the assessee, nor any adjournment was sought. Under these circumstances, the Assessing Officer was constrained to complete the assessment under section 144 r.w.s. 147 of the Act. Ultimately, the Assessing Officer passed the assessment orders on 26.12.2000 for the assessment years 1994-95 to 1997-98; and made certain additions/disallowances in the said orders. For the assessment year 1998-1999, the assessee submitted his original return of income on 8.2.1999 declaring the taxable salary income at Rs.89,657/-. This return was processed under section 143(1) of the Act on 18.1.2000. Subsequently, on the basis of information received by the Department, inquiries were conducted and it came to the notice of the Assessing Officer that the assessee had sold his House No.116, Sector 38-A, Chandigarh for a consideration of Rs.11 lacs on 4.4.1997 to Shri Surjit Singh and his wife Smt.Rajinder Kaur. The assessment was, therefore, reopened under section 147 of the Act by issuing a notice under section 148 of the Act on 26.12.2000, which was duly served upon the assessee on 4.1.2001. As per the Assessing Officer, the assessee did not file return of income in response to the notice under section 148 of the Act and, therefore, the Assessing Officer issued notice under section 142(1) of the Act calling for the bank accounts, passport, information in respect of investment in the House No.116, Sector 38-A, Chandigarh and evidence of the sources of expenditure on the education of the daughter. The assessee did not comply with the notice, nor sought any adjournment. According to the Assessing Officer, summons under section 131 of the Act were issued to the assessee on 27.2.2002. After affording due and reasonable opportunity of being heard to the assessee, the Assessing Officer framed assessment under section 144 r.w.s. 147 of the Act on 22.3.2002 and made certain additions/disallowances in the said order.

3. Aggrieved by the assessment orders passed by the Assessing Officer for the assessment years under consideration, the assessee filed appeals before the learned CIT (Appeals) on 17.1.2013 which were barred by limitation. The assessee did not file any application for condonation of delay alongwith Form No.35. So, the appeals preferred by the assessee were dismissed in limine by the learned CIT (Appeals) vide his order dated 23.5.2013. The assessee preferred the appeals against the orders of the learned CIT (Appeals) dated 23.5.2013 before the Tribunal and the Tribunal vide its order dated 7.11.2013 set aside the orders of the learned CIT (Appeals) and remanded the matter to him with a direction to give an adequate opportunity to the assessee to explain the delay as well as explain the merits of the appeals. In pursuance to the order of the Tribunal dated 7.11.2013, the learned CIT (Appeals) passed a fresh order on 16.1.2015 stating that the assessee has not explained properly inordinate delay in filing the appeals and so he declined to condone the delay and the appeals were dismissed in limine, and hence the assessee has filed these appeals before the Tribunal.

4. Shri Satbarg Singh, assessee and his counsel Shri Parikshit Aggarwal appeared before me at the time of hearing of the appeals. Shri S.K. Mittal, learned D.R argued the case on behalf of the Revenue. Shri Parikshit Aggarwal, learned counsel for the assessee reiterated the submissions made before the learned CIT (Appeals) and submitted that the jurisdiction to condone the delay should be exercised liberally. The matter relating to condonation of delay should be judged broadly and not in a pedantic manner. He further submitted that the learned CIT (Appeals) dismissed the appeals of the assessee as time barred without proper application of mind to the cause shown by the assessee in regard to the delay in filing the appeals. He further submitted that the impugned orders dismissing the appeals in limine are liable to be set aside. He accordingly, submitted that the delay may be condoned in filing the appeals before the learned CIT (Appeals).

5. Shri S.K. Mittal, learned D.R. on the other hand, submitted that for all the assessment years under consideration, the demand notices and assessment orders were served upon the assessee immediately and, therefore, there was no reason for late filing of the appeals before the learned CIT (Appeals). He further submitted that in granting the indulgence and condoning the delay the appellate authority must be satisfied that there had been diligence on the part of the appellant and the latter was not guilty of negligence whatsoever. He further submitted that the delay in filing the appeals cannot be extended simply because the assessee's case is hard and calls for sympathy. Further more, the assessee could not establish that there was sufficient cause for delay in filing the appeals before the learned CIT (Appeals). He further submitted that the assessee, after about 12 years, filed the appeals for the assessment years 1994-95 to 1997-98 and the appeal for 1998-99 was filed after about 10 years. He, therefore, submitted that the learned CIT (Appeals) was fully justified in not condoning the inordinate delay in filing the appeals before him. Accordingly, it was submitted that all the appeals may be dismissed with costs.

6. The question arises in this case for determination is as under :
"Whether, on the facts and in the circumstances of the case, the CIT (Appeals)-2, Chandigarh was right in holding that the appeals filed by the assessee were barred my limitation?"

7. Now, there is no dispute that the assessment orders (for the assessment years 1994-95 to 1997-98) were passed on 26.12.2000. However, the Assessing Officer passed the assessment order for the assessment year 1998-99 on 22.3.2002. In all the assessment orders framed under section 144 r.w.s. 147 of the Act, the Assessing Officer made certain additions/disallowances. Section 249(2) of the Act provides the period of limitation within which the assessee is entitled to exercise his right of appeal. Section 249(2) of the Act reads as under :

"249. (2) The appeal shall be presented within thirty days of the following date, that is to say,—

8. From the above, it is clear that where the appeal relating to any assessment order, the appeal has to be presented within 30 days of the date of service of the notice of demand relating to that assessment order. It is an admitted fact that the appeals filed by the assessee against the aforesaid assessment orders were time barred. When the Tribunal remanded the matter to the learned CIT (Appeals) for a fresh decision, the assessee filed an application for condonation of delay in filing the appeals before the CIT (Appeals), which reads as under :

9. The learned CIT (Appeals) rejected the aforesaid application of the assessee for the following reasons (the orders of the CIT (Appeals) are similar for all the assessment years under consideration):

'3. I have considered the application of the appellant regarding condonation of delay in filing the present appeal. The appeal has been filed late by more than eleven years and the reason given is that the appellant was not keeping good health, was in severe depression due to various issues and that the appellant was in hiding, since the lenders were asking for money, but these reasons do not explain such a long delay in filing appeal.

3.1 The appeal has to be filed within thirty days of the receipt of the order, which is clearly mentioned in the demand notice. The issue of condonation of delay had come up before Hon'ble Orissa High Court in the case of Brijbandhu Nanda (44 ITR 688). The facts in this case were that the assessee had sent three appeals on 2nd April 1954, the 56th day of the receipt of order, by registered post to Income Tax Tribunal, then at Bombay, in one packet. These appeals were received by the Tribunal on 7th April, 1954. The last date by which the appeals were to be filed was 6th April, 1954 and so the appeals were out of time by one day. The delay was not condoned by the Tribunal and on further appeal, the Hon'ble High Court had held that there is no justification for the delay as under:

"Even assuming that the questions referred are questions of law, I am of opinion that there was no error on the part of the Tribunal in not condoning the delay in its discretion. In fact, as appears from the assessee's own petition for condonation of delay in IT.A. Nos. 85, 86 and 87 of 1954-55 dated May 5, 1955, the assessee does not appear to have explained why he waited for 56 days after he received the order on February 5, 1954, as aforesaid. It further appears from a letter dated April 9, 1954, from the Assistant Registrar of the Appellate Tribunal, Bombay, that the appeals were received by him on April 7, 1954, that is to say, one day beyond the period of limitation. In view of sub-rule (2) of rule 7, which provides that a memorandum of appeal, sent by post, shall be deemed to have been presented to the Registrar or to the officer authorised by the Registrar, on the day on which it is received in the office of the Tribunal at Bombay, it is clear that the appeals were received by the Registrar out of time. We have discussed the general mandatory aspect of the provisions of the Act and the rules thereunder in our decision in Govinda Chowdhury v. Commissioner of Income-taxreferred to above.

In the present case, the assessee appears to have no justification for the delay in sending the appeals not until the 56th day from the date of receipt of the order of the Appellate Assistant Commissioner. There is no question of error of fact or misapprehension as to the position in law which could have been some explanation for the delay. The Madras High Court in Krishna v. Chathappan observed that the court is not prepared to hold that a mistake in law is under no circumstances a sufficient cause within the meaning of section 5 of the Limitation Act. The learned counsel for the assessee in course of his argument relied on the said Madras case, which, in my opinion, has also no application to the facts and circumstances of the present case. There is no question of mistake in law in the present case."

3.2 Thus, even the delay of one day was not condoned by the Hon'ble Orissa High Court. There is sanctity attached to the limitation prescribed under the law, since the finality of a decision is a valuable right which vests in a party not aggrieved by the order and the expiry of period of limitation acts as an assurance that the order has become final. Hence, the question of condonation of delay cannot be decided in a casual manner. Hon'ble Punjab and Haryana High Court has also held in the case of Ram Mohan Kabra (257 ITR 773) that the delay can be condoned only for good and sufficient reasons, supported by cogent and proper evidences. The appellant has not explained properly the large delay in filing the present appeal and so the delay in filing the present appeal is not condoned u/s 249(3) of the Act and the appeal is dismissed in-limine.

4. In the result, the appeal is dismissed.'

10. On perusal of the application for condonation of delay, it would be clear that the appeals have been filed late by almost 12 years and the reason is stated to be that the assessee was not keeping up good health, was in severe depression due to various issues and the lenders were asking for money. On failure of the assessee to repay, the criminal elements were behind him due to which he remained in hiding and ultimately went into depression. These are the reasons given by the assessee for condonation of delay in filing the appeals before the learned CIT (Appeals). The assessee has submitted a Paper Book before the Tribunal. Pages 3 to 51 of the Paper Book are stated to be the copies of medical record of the assessee submitted before the learned CIT (Appeals). I have carefully perused the copies of so-called medical record of the assessee submitted before the learned CIT (Appeals). At the outset, I may point out that the medical reports available at pages 44 to 51 of the Paper Book are dated 18/19.11.2014. These documents relate to HBA, Hemogram tests. These reports are not relevant because the appeals were filed before the learned CIT (Appeals) on 17.1.2013. The documents placed at pages 3 to 13 of the Paper Book are reports of Sugar/Blood tests, and these reports pertain to the years 2003 and 2004. The documents placed at pages 14 to 17 of the Paper Book are Diabetic Diet Chart. The papers placed at pages 18 to 22 of the Paper Book relate to prescription slip dated 15.7.2006 of Dr. T.S. Sandhu, Eye Surgeon. The documents placed at pages 23 to 43 of the Paper Book are reports of clinical tests and these tests were done in the years 2006, 2009 and 2012. It appears that the assessee has obtained the above reports in the course of routine medical check-up. These reports are mainly about BP and sugar level. There is no evidence on record to show that the assessee was in severe depression due to various issues. There is no evidence on record to show that the assessee has ever taken a treatment from Psychiatrist. There is nothing on record to show that the assessee was admitted for a single day in the hospital. The assessee has also failed to prove that the lenders were asking for money. He has not mentioned the name and address of a single lender. In my considered opinion, the reasons stated by the assessee are not tenable for want of supporting evidence. During the course of appellate proceedings before this Tribunal, the assessee was directed to file an affidavit regarding his job history. In this regard, the assessee submitted an affidavit dated 25.6.2015, wherein he has stated that he is a permanent resident of Flat No.5003, Pancham Cooperative Housing Society, Sector 68, Mohali. He has joined service with the Punjab Civil Secretariat as clerk on 1.2.1968 and regularly joined as clerk w.e.f. 4.10.1968 in the Department of Industries & Commerce Punjab. Later on, he was promoted as Assistant in the year 1983, further promoted as Superintendent Grade-II on 19.3.2002 and then promoted as Superintendent Grade-I on 11.12.2008 and finally he retired from the above office as Superintendent Grade-I on 31.3.2009. From the aforesaid affidavit, it is clear that he was in active service with the Department of Industries & Commerce, Punjab. The assessee has worked as Assistant from 1983 to March, 2002. He was promoted as Superintendent-II on 19.3.2002 and then promoted as Superintendent Grade-I on 11.12.2008. It shows that the assessee was regularly performing his duties in his Department. It is true that in case of illness, the proof is needed that the assessee/appellant was utterly disabled to attend to any work. He is also required to show that he was unfit to assist his legal representative or advocate. Admittedly, the assessment orders were passed on 26.12.2000. It is true that the illness must be at the time of expiry of limitation. If the assessee/appellant was ill but got alright, there cannot be any excuse for delay in filing the appeal. At this stage, it would be worthwhile to refer to the decision of the Hon'ble Supreme Court in the case of Ajit Singh Thakur Singh v. State of Gujarat AIR 1981 SC 733, 735, wherein the Hon'ble Supreme Court has made following important observations :

"It is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause. There may be events or circumstances subsequent to the expiry of limitation which may further delay the filing of the appeal. But that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation."

11. In the instant case, the assessee has miserably failed to prove the sufficient cause to the effect that because of some event or circumstance arising before limitation expired, it was not possible to file appeals before the learned CIT (Appeals) within time. It is relevant to observe here that the assessee was retired from the government service after attaining the age of superannuation. He has not taken retirement on medical grounds. He has retired as Superintendent Grade-I. There is no evidence on record to show that the assessee was prevented by sufficient cause from filing the appeals within time. Section 249(3) of the Act provides that the learned CIT (Appeals) may, on good and sufficient cause for the delay being shown, admit an appeal after the expiry of the period of limitation. Thus, the appellant/assessee has to show that he had "sufficient cause" for not preferring the appeal within the period of limitation. It is well settled law that in essence, the phrase "sufficient cause" is not a question of principle, but is a question of fact. Hence, whether to condone the delay, or not depends upon the fact and circumstances of each case as "sufficient cause" for condonation of delay depends only on the fact placed by the applicant before the authority concerned. Thus, it is clear that it is required to be taken in the facts of individual case whether the said circumstances constitute a "sufficient cause" for condoning the delay. In the facts and circumstances of the present case, I am of the considered opinion that the delay in filing the appeals before the learned CIT (Appeals) can not be condoned. Accordingly, I do not see any valid ground for interfering with the orders of the learned CIT (Appeals) on the issue at hand. In view of the above discussion, I uphold the orders of the learned CIT (Appeals) and reject the common ground of appeals.

12. The remaining grounds of appeal do not arise out of the orders of the learned CIT (Appeals), and hence no findings are required to be given.

13. In the result, all the appeals of the assessee are dismissed.