D.b. Income Tax Appeal v. I.t.o. Ward-2, Bhilwara

D.B. Income Tax Appeal No. 95/2012 Manohar Lal vs I.T.O. Ward-2, Bhilwara DATE OF ORDER: 2[nd] July 2014HON’BLE MR. JUSTICE DINESH MAHESHWARIHON’BLE MR. JUSTICE BANWARI LAL SHARMA Mr. Vineet R. Dave for the appellant. <><><> Though a request for adjournment is made but in the given setof facts and circumstances of the case, we are not persuaded togrant any further indulgence in the matter. This appeal wasdismissed in default on 25.02.2013. However, the belated restorationapplication was allowed on 25.04.2014. But, when the matter waslisted again before the Court on 12.05.2014, nobody appeared forthe appellant and the matter stood adjourned. Request for furtheradjournment stands declined. The assessee seeks to maintain this appeal under Section260A of the Income Tax Act, 1961 against the order passed by theIncome Tax Appellate Tribunal, JodhpurBench, Jodhpur (‘ITAT’)on17.04.2009 for the Assessment Year 2004-05. This appeal, filed on 03.10.2012, is reportedly time-barred by1110 days i.e., nearly a period of three and a half years. Anapplication seeking condonation of delay has been filed, the contents thereof could be usefully reproduced as under:- “1.That the appellant-assessee has filed an IncomeTax Appeal before the Hon'ble Rajasthan High Court, JaipurBench against the order passed by the ld. Income Tax AppellateTribunal, Jaipur Bench, Jaipur (for short “the ld. ITAT”).Tax Appeal before the Hon'ble Rajasthan High Court, JaipurBench against the order passed by the ld. Income Tax AppellateTribunal, Jaipur Bench, Jaipur (for short “the ld. ITAT”). 2.That the certified copy of order dated 17.04.2009was received on dated 01.05.2009 and appeal could be filedbefore the Hon'ble Rajasthan High Court, Jaipur Bench on dated24.09.2009 with the delay of 25 days (as against the last datewas received on dated 01.05.2009 and appeal could be filedbefore the Hon'ble Rajasthan High Court, Jaipur Bench on dated24.09.2009 with the delay of 25 days (as against the last date 2 being 30.08.2009). 3. That the said delay of 25 days occurred due to adecision of filing of a Miscellaneous Application u/s 254(2) of theIncome Tax Act, 1961 first, against the impugned order dated17.04.2009, in as much there are certain apparent mistakes whichcould be got rectified from the ld. ITAT. Under the aforesaidbackground, the humble appellant-assessee was advised by hisCounsel that it is better to wait for the decision of the ld. ITAT onthe aforesaid Miscellaneous Application where from the desiredrelief can be expected looking to the nature of the matter, insteadof burdening the Hon'ble High Court. Accordingly, the humbleappellant-assessee remained under a bonafide belief that he willbe informed whenever further action was required. 4.That unfortunately however, nobody could keep atrack on the events and in the meanwhile, the due date of filing ofthe present appeal, lapsed. Thereafter, when the appellant-assessee again discussed the matter with his local Counsel, theyimmediately rushed to the new Counsel at Jaipur for discussionand filing the present appeal. Thereafter, present appeal was filedimmediately. These circumstances were beyond the control of thehumble applicant-assessee. 5.The appellant-assessee is an old income taxassessee and as when need arose and duly advised, heimmediately filed appeal within limitation and in the past no appealwas filed at any stage after limitation. By not filing the presentappeal or by a delayed filing, the humble appellant-assessee wasnot going to gain anything. The conduct of the appellant-assesseewas not therefore contumacious/dishonest. Hence, there was nodeliberate intention on its part to delay the filing of the presentappeal. 5.The appellant-assessee is an old income taxassessee and as when need arose and duly advised, heimmediately filed appeal within limitation and in the past no appealwas filed at any stage after limitation. By not filing the presentappeal or by a delayed filing, the humble appellant-assessee wasnot going to gain anything. The conduct of the appellant-assesseewas not therefore contumacious/dishonest. Hence, there was nodeliberate intention on its part to delay the filing of the presentappeal. 6.That there is a further delay in filing the presentappeal before the principal seat at Jodhpur of this Hon'ble HighCourt in as much as appeal in this case was originally filed beforethe Hon'ble Rajasthan High Court, Jaipur Bench. Jaipur, whichwas registered as DBITA No. 595/2011. However, later on feelingthat in view the fact that the assessment order was framed by theAssessing Officer (“the AO” for short) situated at Bhilwara, theproper and correct place for filing the present appeal may be withthe principal Bench of the Hon'ble Rajasthan High Court, thesame was withdrawn with a liberty to file fresh appeal. TheHon'ble Rajasthan High Court, Jaipur Bench, Jaipur vide its orderdated 16.07.2012 treated the appeal filed before them asdismissed and withdrawn with a liberty to file fresh appeal beforeprincipal seat at Jodhpur. It is under this background, that thepresent appeal is being filed. A certified copy of the said orderwas obtained on dated 24.07.2012. It is, therefore, humbly prayed that this application maykindly be accepted and be allowed in the interest of justice andthe delay may kindly be condoned.” Having gone through the application twice over, we aresatisfied that it remains vague and incomplete on material particularsand in any event, does not make out any sufficient cause forcondonation of delay. It appears from the contents of the application that an appealwas filed by the assessee on 24.09.2009 against the impugned orderdated 17.04.2009, which was time barred by 25 days. However,neither the particulars of the said appeal are stated nor the ultimateresult thereof. This much is from paragraph 2 and 3 of theapplication. However, the contents of the paragraph 4 are to theeffect that nobody could keep a track on the events and, hence thedue date of filing the present appeal lapsed ! What is meant by thesesubmissinos remains anybody’s guess. Then, an appeal was filed at Jaipur Bench in the year 2011,which was withdrawn on 16.07.2012. Even thereafter, this appealhas been filed at Jodhpur only on 03.10.2012. Viewed from any angle, we do not find even a semblance ofcause to entertain this grossly belated appeal. The counsel for the appellant attempted to submit that amiscellaneous application moved before the ITAT remains pending.We have only taken note of the submissions so made by thelearned counsel but would not make any comment in this regard; andwould leave it open for all the concerned to pursue the matter, if at allpending, appropriately and in accordance with law. Accordingly and in view of the above, the application seeking condonation of delay stands rejected. The appeal stands dismissed. (BANWARI LAL SHARMA),J. (DINESH MAHESHWARI),J.