Litigant Is Not Allowed To Use Process Of Law To Achieve Ulterior Purpose In Under Hand Way By Filing Appeal Belatedly: Indore ITAT

On finding that the assessee has failed to make out a case of reasonable cause much less sufficient cause for an abnormal delay of more than six years in filing the appeal, the Indore ITAT declined to condone the inordinate delay in filing of appeal and consequently dismissed the appeal filed against the revision order passed u/s 263 of Income Tax Act, being barred by limitation.

The Bench of the ITAT comprising of Vijay Pal Rao (Judicial Member) and B.M. Biyani (Accountant Member) observed that “Though, the expression “sufficient cause” for delay in filing the appeal must be construed liberally in favour of the litigant approached the court belatedly so that the dispute could be decided as far as possible on merits and not on technicalities. However, at the same time the litigant is not allowed to use the process of law to achieve an ulterior purpose in under hand way by filing the appeal belatedly. Therefore, the concept of liberal interpretation of expression “sufficient cause” would not mean that the requirement of some reasonable cause to justify the delay particularly an inordinate delay be ignored. Therefore, the concept of liberal interpretation cannot be applied by overlooking the apparent unacceptable and unsatisfactory reasons and when it is found that there is absolutely no justification for inordinate delay. The applicant cannot take shelter of liberal interpretation without explaining the satisfactory cause of delay.” (Para 7)

“It is pertinent to note that after passing the impugned order a consequential order in pursuant to the order passed u/s 263 must have been passed long ago and even the appeal against the said order might have been passed by the CIT(A). Therefore, when the proceedings did not stop on passing of the impugned order but the consequential proceedings before the AO as well as CIT(A) must be going on during these years then the assessee cannot take a plea of lapse on the part of counsel”, added the Bench.

As per the brief facts of the case, the assessee filed an appeal against the revision order of Pr. Commissioner of Income Tax u/s 263, but there is a delay of 2353 days (6-1/2 years) in filing the present appeal. The assessee has applied for condonation of delay by stating that the impugned order was served on the counsel of the assessee as the assessee shifted from the earlier address given on the record of the department. The Counsel of the assessee failed to comply in time and, more so, the order intermingled with other papers in the chamber of counsel. As a result, there was a delay on the part of the counsel. An affidavit of delay was also submitted stating the cause of delay due to wrong advice given by the counsel. However, there was no evidence in support of such reasons.

The Bench noted that the reason provided in the affidavit by the assessee for the delay in filing the appeal is completely different from the reason provided in the application.

The Bench observed that apart from taking two entirely different stands one in the application for condonation of delay and another in the affidavit the assessee has also narrated vague reasons for inordinate delay of about 6-1/2 years in filing present appeal.

The Bench further observed that neither in the application for condonation of delay nor in the affidavit the assessee has given any detail of date on which the order was received by the counsel and thereafter when the assesse has contacted his counsel for taking further steps.

The Bench also observed that the assessee has not filed any authority appointing any counsel or representative to appear in the present proceedings before the Tribunal and therefore, the reasons explained by the assessee in the application for condonation of delay as well as in the affidavit are not supported with any record or details to show that the assessee was actually advised not to file the appeal.

Therefore, on finding the assessee's appeal indefensible, the ITAT dismissed the appeal.

Counsel for Appellant/ Assessee: None

Counsel for Respondent/Department: Simran Bhullar

Case Title: Shri Abhishek Singh verses Pr. CIT

Case Number: ITA No.443/Ind/2023

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