Ita/577/2016 Of Shri Muninaga Reddy v. The Asst. Commissioner Of Income-Tax

IN THR HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23 DAY OF NOVEMBER 2016 PRESENT THR HON’BLE MR.JUSTICE JAYANT PATEL AND THR HON’BLEK MR.JUSTICE PS DINBSH KUMAR. ITA NO.577 OF 2016 BETWEEN: SHRI MUNINAGA REDDYAGED ABOUT 59 YEARS,9/O LATE MUNISWAMY REDDY,NO.45, 3 B MAIN,4TH CROSS, 3RD BLOCK,KALYAN NAGAR,|BANGALORE-560 043| —. APPKRLLANT (BY SRI DINESHA P, ADVOCATE) AND: THE ASST. COMMISSIONER OF INCOME-TAXCIRCLE 6(1)INCOMBE-TAX OFFICESROOM NO.732, BMTC BUILDING,SOFT ROAD, 60TH BLOCKKORAMANGALABANGALORE-560 095 . RESPONDENT (BY SRI K V ARAVIND, ADVOCATE) THIS [TA IS FILED UNDER SEKC.260-A OF INCOMETAXACT1961,ARISINGOUTOH|ORDERDATED:13/01/2015.PASSBHBIN|ITANO.860/BANG/2012, FOR THE ASSESSMENT YEAR|2007-2008 PRAYING TO FORMULATRB THR SUBSTANTIALQUESTIONS OF LAW STATED ABOVE, ALLOW THE|APPEAL|BY|DBLBETINGTHE|PBRNALTYLEVIBHDU/S.271(1)(C) OF THE ACT OF RS.38,12,640/- FOR THE|ASSESSMENT YBAR 200/7-2008 AS CONFIRMED BY THEAPPBLLATE|TRIBUNALIN|ITSORDERIN|ITANO.860/BANG/2012 ARISING OUT OF COMMON ORDER|IN ITA NOS. 859 & 860/BANG/2012 DT:13/01/2015)(ANNEXURE-A) AND PASS SUCH OTHER SUITABLE)ORDBRS AS THIS HON'BLBE COURT DEBMS FIT TOGRANT IN THR FACTS AND CIRCUMSTANCES OF THE|CASE IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR ORDERS THIS DAY,JAYANT PATEL J., DELIVERED THE FOLLOWING: ORDER ].A.No.2/2016 is for condonation of delay of 943days in preferring the appeal against the order passedby the Income Tax Appellate Tribunal dated 13.01.2015,whereby the Tribunal had partly allowed the appeal asmentioned in the said order. 2. We have heard Mr.Dinesha P., learned Counselappearing for the appellant and Mr.K.V.Aravind, learnedCounsel appearing for the respondent. 3. The delay is a long delay of more than 500 daysand therefore cannot be leniently viewed. In theaffidavit filed in supportof the application forcondonation of delay, it has been stated by theapplicant that since in the last portion the appeal was_partly allowed for the assessment year 2007-2008 forstatistical purposes, he misunderstood the same anddid not prefer the appeal. It has been further statedthat when the Assessing Officer called upon theappellant after the order passed by the High Courtdated 21.09.2016, he has instructed his lawyer to filethis appeal and hence, there is a delay in preferring theappeal of 943 days which may be condoned. 4. In our view, it is by now well settled that if theapplication for condonation of delay is not with anybonafidereason but is.malafide, the Court may notexercise the discretion for condonation of delay. Apartfrom the above when the delay is of a longer period, theCourt would take ae strict view ot the matter incomparison to the lenient view which may be taken bythe Court when the delay is for a shorter period. 5. The examination of the facts further shows that|the present appeal is against the common order dated13.01.2015 passed by the Tribunal which pertains totwo assessment years, one of 2006-2007 and anotherfor assessment year of 2007-2008. The impugned orderis a common order for two assessment years and theapplicant-assessee has preferred appeal bearing ITANos.2951 and 390/2016 for the assessment year of2006-2007 and the said appeals vide order dated21.09.2016 passed by this Court have been allowed. Afterhaving|realizedthat|theappeals fortheassessment year of 2006-2007 have been allowed videorder dated 21.09.2016, the present appeal has been preferred on 05.11.2016. 5. The examination of the facts further shows that|the present appeal is against the common order dated13.01.2015 passed by the Tribunal which pertains totwo assessment years, one of 2006-2007 and anotherfor assessment year of 2007-2008. The impugned orderis a common order for two assessment years and theapplicant-assessee has preferred appeal bearing ITANos.2951 and 390/2016 for the assessment year of2006-2007 and the said appeals vide order dated21.09.2016 passed by this Court have been allowed. Afterhaving|realizedthat|theappeals fortheassessment year of 2006-2007 have been allowed videorder dated 21.09.2016, the present appeal has been preferred on 05.11.2016. 6. The aforesaid shows that it is only aiter thedecision of this Court, the applicant with a view to takeundue benefit of the order dated 21.09.2016 in ITA!Nos.291/2016|and390/2016,whereintheVCTy.applicant was a party, has preferred this appeal. Byapplying reasonable prudence, it is unbelievable that ifcommon order is passed in respect of the very assesseeby the Tribunal, when the assessee has preferred theappeal in respect of assessment year of 2000-2007, hewould not prefer the appeal for another assessment yearof 2007-2008 had he been aggrieved by the order of theTribunal at the relevant point of time. On the contrary,the conduct of the applicant shows that there isacquiescence by way of acceptance of the order of the Tribunal, since the appeal was not preferred for theassessment year of 2007-2008. It is only after the view —expressed by the Court in another appeal by the abovereferred order dated 21.09.2016, by way of anaiterthought to take a chance that too on an ingenuineeround, the present appeal has been preferred. 7. The contention sought to be canvassed that theapplicant has misunderstood the operation of the orderof partly allowing the appeal, is not acceptable on theface of it because had it been a separate order, it mayleave some room for misunderstanding, but when theorder was common and the reasoning recorded is a partof the common order for partly allowing of the appeal, ifthe applicant was aggrieved by the said order to theextent it was not allowed, the appeal could not havebeen preferred well in time. 8. In our considered view, the ground of delaysought to be canvassed is not only an aiterthought butis on an ingenuine ground and unbelievable grounds.are sought to be canvassed for invoking the discretion ofthis Court for condonation of delay, that too, for such along period of more than 9SO0O days. Under thecircumstances, we are not inclined to exercise the.discretion for condonation of delay. 9. Hence, the application for condonation of delay1S.dismissed.Resultantly,|theappeal1n ITANo.9///2016 shall also stand disposed of. © Sd/-. JUDGE| Sd/-. JUDGE|