By K. B. Bhujle
Advocate
CIT(Exemption)
vs. Lata Mangeshkar Medical Foundation; [2018] 92 taxmann.com 80 (Bom); Date of
Order: 18/03/2018:
A.
Ys. 2008-09 and 2009-10:
Section
260A
For the A.
Ys. 2008-09 and 2009-10, the Department had filed appeal to the High Court u/s.
260A of the Income-tax Act, 1961 against the order of the Tribunal. There was
delay of 318 days in filing the appeals. An application was made for
condonation of delay. Sequence of events were narrated during the period of
delay. It was stated that the tax effect involved was over Rs. 6 crore for A.
Y. 2009-10 and over Rs. 3.4 crore for A. Y. 2008-09.
The Bombay
High Court refused to condone the delay and held as under:
“i) There is no proper explanation for the delay
on the part of the Commissioner. In fact, the affidavit, dated 16-9-2017 states
that, he handed over the papers to his subordinate i.e. the Deputy
Commissioner. This is also put in as one of the reasons for the delay. This
even though when they appear to be a part of the same office. In any case, the
date on which it was handed over to the Deputy Commissioner (Exemptions),
Circle, Pune is not indicated. Further, the affidavit dated 16-9-2017 also does
not explain the period of timse during which the proposal was pending before
the Chief Commissioner, Delhi for approval. The Chief Commissioner is also an
Officer of the department and there is no explanation offered by the Chief
Commissioner at Delhi or on his behalf, as to why such a long time was taken in
approving the proposal. In fact, there is even no attempt to explain the same.
The Commissioner being a Senior Officer of the revenue would undoubtedly be
conscious of the fact that the time to file the appeals was running against the
revenue and there must be averment in the application of the steps he was
taking to expedite the approval process.
Further,
there is no proper explanation for the delay after having received the approval
from the Chief Commissioner of Delhi on 29-5-2017. No explanation was offered
in the affidavits dated 16-9-2017 for having filed the appeal on 20-7-2017 i.e.
almost after two months. The additional affidavits also does not explain the
delay except stating that the Advocate to whom the papers were sent for
drafting asked for some document without giving particulars. Thus, the reasons
set out in the Affidavits and additional Affidavits in support were not
sufficient so as to condone the delay in filing the accompanying Appeal.
ii) The officers of the revenue were conscious
of the time for filing the appeal. This is particularly so as on an average
over 2000 appeals every year from the order of the Tribunal is filed by it
before this Court. Inspite of the above said callous delay. Thus, the delay
could not be condoned.
iii) The reasons that come out from the Affidavits
filed is, that the work takes time and, therefore, the period of limitation
imposed by the State should not be applied in case of revenue’s appeal where
the tax effect involved is substantial. Such a proposition could not be
accepted as it would be contrary to the law laid down by the Apex Court that
there is no different period of limitation for the State and the citizen.
iv) One more submission made on behalf of the
revenue is that, the assessee have been served and they have chosen not to
appear. Therefore, it must necessarily follow that they have no objection to
the delay being condoned and the appeal being entertained. Thus, it is
submitted that the delay be condoned and the appeal be heard on merits. This
submission ignores the fact that the object of the law of limitation is to
bring certainty and finality to litigation. This is based on the Maxim ‘interest
reipublicae sit finis litium’ i.e. for the general benefit of the community
at large, because the object is every legal remedy must be alive for a
legislatively fixed period of time. The object of law of limitation is to get
on with life, if you have failed to file an appeal within the period provided
by the Statute; it is for the general benefit of the entire community so as to
ensure that stale and old matters are not agitated and the party who is
aggrieved by an order can expeditiously move higher forum to challenge the
same, if he is aggrieved by it. As observed by the Apex Court in many cases,
the law assists those who are vigilant and not those who sleep over their
rights as found in the Maxim ‘Vigilantibus Non Dormientibus Jura Subveniunt’.
Therefore, merely because the assessee does not appear, it cannot follow that
the revenue is bestowed with a right to the delay being condoned.
v) The period of limitation should not come as a
hindrance to do substantial justice between the parties. However, at the same
time, a party cannot sleep over its right ignoring the statute of limitation
and without giving sufficient and reasonable explanation for the delay, expect
its appeal to be entertained merely because it is a State. Appeals filed beyond
a period of limitation have been entertained, where the delay has been sufficiently
explained such as in cases of bona fide mistake, mala fide action
of the Officer of the State etc; however, to seek that the period of
limitation provided in the statute be ignored in case of revenue’s appeals
cannot be accepted. The appeals which are filed by the revenue in this Court
u/s. 260A of the Act are very large in number and on an average over 2000 per
year from the orders of the Tribunal. Thus, the officers of the revenue should
be well aware of the statutory provisions and the period of limitation and
should pursue its remedies diligently and it cannot expect their appeals be
entertained, because they are after all the State, notwithstanding the fact
that delay is not sufficiently explained.”
