Examining The Legal Position Relating To Condonation Of Delayunder Section 5 Of The Limitation Act, 1963 (In Short, The “1963 Act’) Itmay Be Observed That The S v. Gujarat Industrial Development Corporation And

ITA No. 147 of 2014 (O&M) =|. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ITA No. 147 of 2014 (O&M) Date of Decision: 28./.2014 | M/s Punjab Heritage and Tourism Promotion Board, Chandigarh 4!,$)$ ...Appellant Commissioner of Income lax, Chandigarn ... Respondent CORAM:-HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.HON'BLE MR. JUSTICE JASPAL SINGH. PRESENT: Ms. Radhika Suri, Senior Advocate withMr. Tey Mohan Singh Gulati, Aavocate for the appellant. AJAY KUMAR MITTAL, J. 1]Delay of 7 days in re-tiling the appeal is condoned.2.This order shall disoose of a bunch of four appeals bearingITA Nos. 147 to 150 of 2014 as according to the learned counsel for theappellant, the facts involved therein are similar and the grounds seekingcondonation of delay before the Tribunal are identical. For brevity, thefacts are being taken from ITA No. 147 of 2014. 3 This appeal has been filed by the assessee under Section260A of the Income Tax Act, 1961 (in short “the Act’) against the orderdated 22.8.2012 passed by the Income Tax Appellate Tribunal,Chandigarh Bench “B’, Chandigarh, in ITA No. 1095/Chd/2011, for theassessment year 2008-09, claiming the following substantial question of law:- Whether in the facts and circumstances of the case,the Income Tax Appellate Tribunal has fallen in error ITA No. 147 of 2014 (O&M)=2= In upholding the order passed by the AssessingOfficer for Assessment Year 2007-08 by refusing toexercise Its powers for condoning the delay undersection 253(5) of the Income Tax Act in appeal filedagainst the order passed by the Commissioner ofincome lax dated 2./.2008 even thougn the Appellantnad demonstrated tnat It nad been pursuing theremeay of rectification erroneously and tnus hadbonatidely failed to tile the appeal before tne [ribunal’4A few facts necessary for adjudication of the instant appealas narrated therein may be noticed. Ine assessee Is a Boardconstituted by the State Government and applied for registration undersection 1Z2AA of the Act vide application dated 18.12.2006. IneCommissioner of Income lax vide letter dated 22.6.200/ objected to thedissolution clause in the Trust Deed of the appellant-Board. However, noorder on the said application was passed. in the meantime, theassessee amended the dissolution clause and filed amended bye-lawsalong with amended application on 15.4.2008. The Commissioner ofIncome Tax vide order dated 2.7.2008 (Annexure A-1) grantedregistration with effect from assessment year 2009-10. The AssessingOfficer vide order dated 23.11.2010 (Annexure A-2) assessed theincome of the assessee for the assessment year 2008-09 withoutgranting the benefit of registration under Section 12A of the Act. Theassessee filed an application for rectification of the order dated 2.7.2008(Annexure A-1). The said application was rejected vide order dated4.12.2009 (Annexure A-3) which was served upon the assessee on¢.2.2011. The assessee filed appeal before the Tribunal on 15.3.2011 ITA No. 147 of 2014 (O&M)a ITA No. 147 of 2014 (O&M)a challenging order dated 2./.2008. The assessee filed an appeal beforethe Commissioner of Income lax (appeals) [for brevity “the CIT(A)|against the order of the assessment. Ine CII(A) vide order dated6.9.2011 (Annexure A-4) upheld the order of the Assessing Officer andalso affirmed the additions made by the Assessing Officer as theexemption granted to the assessee was for assessment year 2009-10onwards. Since the assessee was pursing the remedy of rectificationagainst the order dated 2./.2008 before the Commissioner of incomeTax, a delay of 921 days had occurred in Tiling the appeal before theTribunal. Accordingly, the assessee filed an application (Annexure A-5)under Section 253(5) of Act for condonation of delay in filing the appeal.The Tribunal vide order dated 22.8.2012 (Annexure A-6) dismissed theappeal being time barred holding that no sufficient cause nad beenmade out to condone the delay. Hence, the present appeals. Since theappeals filed before this Court were also barred by time, applicationsunder Section 5 of the Limitation Act, 1963 (in short, the “1963 Act’) havebeen filed for condonation of delay of 3/9 and 426 days in filing theappeals. — 5.We have heard learned counsel for the appellant. 6,The primary question that arises for consideration in theseappeals is whether there was sufficient cause for condonation of delay infiling the appeals before the Tribunal as also before this Court which arepelated. [.Examining the legal position relating to condonation of delayunder Section 5 of the Limitation Act, 1963 (in short, the “1963 Act’) itmay be observed that the Supreme Court inOriental Aroma ChemicalIndustries Ltd. v. Gujarat Industrial Development Corporation and ITA No. 147 of 2014 (O&M) another, (2010) 5 SCC 459laying down the broad principles foragjudicating the Issue of condonation of delay, in paras 14 & 15oposerved as under: "14.We nave considered the ~ respectiveSubmissions. The law of limitation is founded onpublic policy. Ine legislature aoes not prescribelimitation with the object of destroying the rights of theparties but to ensure tnat they do not resort to ailatorytactics and seek remeay without delay. Ihe idea Isthat every legal remeay must be kept alive for aperiod fixed by the legislature. To put it differently, thelaw of limitation prescribes a period within which legalremedy can be availed for redress of the legal injury.At the same time, the courts are bestowed witn thepower to condone the delay, If sufficient cause Isshown for not availing the remedy within the stipulatedtime. 15.The expression “sufficient cause’ employed inSection 5 of the Indian Limitation Act, 1963 andsimilar other statutes Is elastic enough to enable thecourts to apply the law in a meaningful manner whichsub serves the ends ofjustice. Although, no hard andfast rule can be laid down in dealing with theapplications for condonation of delay, this Court hasjustifiably advocated adoption of a liberal approach incondoning the delay of short duration and a stricterapproach where the delay Is_ inordinate-Collector ITA No. 147 of 2014 (O&M) (L.A.) v. Katy! N. Balakrishnan v. M. Krishnamurthyana Vedabal v. Snantaram Baburao Patil.” 8.it was Turtner noticed by the Apex Court In|R.B. Ramlingam v. R.B. Bhavaneshwari 2009(1) RCR (Civil) 892as under:- 15.The expression “sufficient cause’ employed inSection 5 of the Indian Limitation Act, 1963 andsimilar other statutes Is elastic enough to enable thecourts to apply the law in a meaningful manner whichsub serves the ends ofjustice. Although, no hard andfast rule can be laid down in dealing with theapplications for condonation of delay, this Court hasjustifiably advocated adoption of a liberal approach incondoning the delay of short duration and a stricterapproach where the delay Is_ inordinate-Collector ITA No. 147 of 2014 (O&M) (L.A.) v. Katy! N. Balakrishnan v. M. Krishnamurthyana Vedabal v. Snantaram Baburao Patil.” 8.it was Turtner noticed by the Apex Court In|R.B. Ramlingam v. R.B. Bhavaneshwari 2009(1) RCR (Civil) 892as under:- “salt IS NOt necessary at this stage to discuss eacnand every judgment cited before us for the simpiereason that Section 5 of the Limitation Act, 1963 doesnot lay down any standard or objective test. Ihe testof ‘sufficient cause’ Is purely an individualistic test. ItIs not an objective test. Inerefore, no two cases canoe treated alike. [ne statute oT limitation nas lett theconcept of ‘sufficient cause’ delightfully undefined,thereby leaving to the Court a_ well-intentionedaiscretion to adaecide tne Individual cases whnetnercircumstances exist establishing sufficient cause,There are no categories of sufficient cause. Thecategories of sufficient cause are never exhausted.Eacn case spells out a unique experience to be dealtwith by the Court as such.” It was also recorded tnat:- “For the aforestated reasons, we hold that in each andevery case the Court has to examine whether delay infiling the special leave petition stands properlyexplained. Ihnis is the basic test wnicn needs to beapplied. The true guide Is wnether the petitioner nasacted with reasonable diligence in the prosecution ofhis appeal/petition...." ITA No. 147 of 2014 (O&M) -6- Q|From the above, it emerges that the law of limitation nasbeen enacted whicn Is based on public policy so as to prescribe timelimit tor availing legal remeay for redressal of the Injury caused. Ihepurpose behind enacting law of limitation is not to destroy the rights ofthe parties but to see that the uncertainty should not prevail for unlimitedperiod. Under Section 5 of the 1963 Act, the courts are empowered tocondone the delay where a party approacning tne court belatedly snowssufficient cause for not availing the remeay within the prescribed period.The meaning to be assigned to the expression ‘sufficient cause”occurring in Section 5 of the 1963 Act should be such so as to dosubstantial justice between the parties. The existence of sufficient causedepends upon facts of each case and no hard and fast rule can beapplied In deciding such cases. | 10.The Apex Court in-Oriental Aroma Chemical IndustriesLtd. and R.B. Ramlingam’'s cases (supra)noticed tnat tne courtsshould adopt liberal approach where delay is of short period whereas theproof required should be strict where the delay is inordinate. Further, Itwas also observed that judgments dealing with the condonation of delaymay not lay aown any standard or objective test but Is purely anindividualistic test. Ine court is required to examine while aqjudicatingthe matter relating to condonation of delay on exercising judicialdiscretion on individual facts involved therein. There does not exist anyexhaustive list constituting sufficient cause. The applicant/petitioner isrequired to establish that inspite of acting with due care and caution, thedelay nad occurred due to circumstances beyond his control and wasinevitable. | 11.Adverting to the factual matrix in the present cases, we do ITA No. 147 of 2014 (O&M) =/- 11.Adverting to the factual matrix in the present cases, we do ITA No. 147 of 2014 (O&M) =/- not find any merit in the appeals. [ne question regarding whether thereIs sufficient cause or not depends upon each case and primarily is aquestion of fact to be considered taking Into totality of events wnicn nadtaken place in a particular case. According to the learned counsel for theappellant, the assessee had filed an application for rectification of theorder dated 2.7.2008 (Annexure A-1) on the ground that the registrationwas to be granted from assessment year 2007-08 whereas It wasallowed from assessment year 2009-10. [ne said application wasdismissed on 4.12.2009 and according to the assessee, the said orderwas served on it on 7.2.2011. In this view of the matter, the assesseefailed to file the appeals within the stipulated period of limitation. It wasurged that the delay, if any, has occurred in the aforesaid circumstancesIn Tiling the appeals before the I[ridunal as well as before tnis CourtLearned counsel further argued that the delay was unintentional and dueto the circumstances beyond the control of the appellant, 12.In the present case after appreciating the matter it cannot besaid that there was sufficient cause for condonation of delay. The ordergranting registration was passed by the Commissioner of Income Tax on2.f/.2008 and the application filed under Section 154 of the Act forectification of order dated 2.7.2008 was rejected on 4.12.2009.However, the appeal before the Tribunal was required to be filed withinthe stipulated period of limitation of sixty days from the date of service oforder dated 2./.2008. But the appellant filed the appeals before theTribunal on 15.3.2011, after a delay of 921 days. Even the appeals filedbefore this Court are also barred by time which is more than one year.In fact, the perusal of Annexure A-11 filed in ITA No. 148 of 2014 showsthat the copy of order dated 4.2.2009 was sent to the assessee in ITA No. 147 of 2014 (O&M)-8- pursuance to Its application No. PHTPB/313 dated 25.1.2011 by It on¢.2.2011. Tnere is nothing on record on the basis of which it could beconcluded that the order on rectification application was never served onthe assessee before /7.2.2011. The appellant has not been able toestablish that there existed ‘sufficient cause’ for the delay in filing theappeals before the Tribunal. Further, the appellant took a plea beforethis Court that the Tiles relating to the years In question were misplacedand tnerefore, the appeals in the Hign Court also could not be filed Intime. Such pleas do not stand substantiateaq in tne facts andcircumstances of the present case. There has been an inordinate delayin filing the appeals before the Tribunal as well as before this Court. Thenarration of facts as noticed hereinabove clearly demonstrates that theapproacn of the appellant Is totally casual and beretit of bonafides. 13.in view of the above, no question of law mucn less asubstantial question of law arises in these appeals. Accordingly, theappeals as well as the applications filed under Section 5 of the LimitationAct for condonation of delay in filing the appeals before this Court areaismissed. (AJAY KUMAR MITTAL) JUDGE July 28, 2014-+$ (JASPAL SINGH) JUDGE ITA No. 147 of 2014 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M. Nos. 14885-86-Cl] of 2014 &ITA No. 148 of 2014 (O&M) Date of Decision: 28./.2014 M/s Punjab Heritage and Tourism Promotion Board, Chandigarh 4!,$)$ ...Appellant Commissioner of Income lax, Chandigarn ... Respondent CORAM:-HON BLE MR. JUSTICE AJAY KUMAR MITTAL.HON'BLE MR. JUSTICE JASPAL SINGH. PRESENT: Ms. Radhika Suri, Senior Advocate withMr. Tey Mohan Singh Gulati, Aavocate for the appellant. AJAY KUMAR MITTAL, J. C.M. No. 14885;Cll of 2014 Allowed as prayed for. C.M. No. 14886;Cll of 2014 Application is allowed and Annexures A-6 to A-11 filed along witn the application are taken on record. ITA No. 148 of 2014 (O&M) JUDGE July 28, 2014-+$ (JASPAL SINGH) JUDGE ITA No. 147 of 2014 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M. Nos. 14885-86-Cl] of 2014 &ITA No. 148 of 2014 (O&M) Date of Decision: 28./.2014 M/s Punjab Heritage and Tourism Promotion Board, Chandigarh 4!,$)$ ...Appellant Commissioner of Income lax, Chandigarn ... Respondent CORAM:-HON BLE MR. JUSTICE AJAY KUMAR MITTAL.HON'BLE MR. JUSTICE JASPAL SINGH. PRESENT: Ms. Radhika Suri, Senior Advocate withMr. Tey Mohan Singh Gulati, Aavocate for the appellant. AJAY KUMAR MITTAL, J. C.M. No. 14885;Cll of 2014 Allowed as prayed for. C.M. No. 14886;Cll of 2014 Application is allowed and Annexures A-6 to A-11 filed along witn the application are taken on record. ITA No. 148 of 2014 (O&M) For orders, seeITA No. 147 of 2014 (M/s Punjab Heritage and Tourism Promotion Board, Chandigarh v. Commissioner of Income Tax, Chandigarh) (AJAY KUMAR MITTAL) JUDGE July 28, 2014 -+$ (JASPAL SINGH) JUDGE ITA No. 147 of 2014 (O&M) -10- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ITA No. 149 of 2014 (O&M)|Date of Decision: 28./7.72014 | M/s Punjab Heritage and Tourism Promotion Board, Chandigarh 4!,$)$ ...Appellant Commissioner of Income lax, Chandigarn ... Respondent CORAM:-HON BLE MR. JUSTICE AJAY KUMAR MITTAL.HON BLE MR. JUSTICE JASPAL SINGH. PRESENT: Ms. Radhika Suri, Senior Advocate withMr. Tey Mohan Singh Gulati, Aavocate for the appellant. AJAY KUMAR MITTAL, J. Delay of / days in refiling the appeal is condoned, For orders, seeITA No. 147 of 2014 (M/s Punjab Heritage and Tourism Promotion Board, Chandigarh v. Commissioner of Income Tax, Chandigarh) (AJAY KUMAR MITTAL) JUDGE July 28, 2014-+$ (JASPAL SINGH) JUDGE ITA No. 147 of 2014 (O&M) =11- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ITA No. 150 of 2014 (O&M)| Date of Decision: 28./.2014 | M/s Punjab Heritage and Tourism Promotion Board, Chandigarh 4!,$)$ ...Appellant Commissioner of Income lax, Chandigarn ... Respondent CORAM:-HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.HON'BLE MR. JUSTICE JASPAL SINGH. PRESENT: Ms. Radhika Suri, Senior Advocate withMr. Tey Mohan Singh Gulati, Aavocate for the appellant. AJAY KUMAR MITTAL, J. Delay of / days In refilling the appeal is condoned For orders, seeITA No. 147 of 2014 (M/s Punjab Heritage and Tourism Promotion Board, Chandigarh v. Commissioner of Income Tax, Chandigarh) (AJAY KUMAR MITTAL) JUDGE July 28, 2014-+$ (JASPAL SINGH) JUDGE