Itta/74/2018 Of Kakinada Sez Lilmited v. Assistant Comissioner Of Income Tax

IN THE HIGH COURT FOR THE STATE AT HYDERABAD TUESDAY ,THE FIRST DAY OF AUGUSTTWO THOUSAND AND TWENTY THREE PRESENT THE HON'BLE SRI JUSTICE P.SAM KOSHYAND THE HON'BLE SRI JUSTICE LAXMI NARAYANA t.A. NO. 1 0F 20'18IN/AND INCOME TAX TRIBUNAL APPEAL NO: 74 OF [2018] (lncome Tax Tribunal [.Appeal ]Under Section 260 A of the lncome [Tax ]Act [1961]against the order of the lncome Tax Appellate [Tribunal, ][Hyderabad ][Bench ][' ] [',]Hyderabad in ITA No.213 I Hyd I 2012 [( ][Assessment ][Year ][2008-09) ][dated]1 8-01-2013 [prefened ]against the Order of [the ][Commissioner ][of ][lncome ][Tax]( Appeals ) -lll, Hyderabad in ITA No. 0254 / CIT [(A) ]-lll/10-1 1 [dated ][25-11-2011]prefened against the Order of the Assistant Commissioner of lncome Tax, [Cir.cle ][-]2(2) ,Hyde@bad PAN/GIR [No. ]AACCK567 [OR dated 24-12-2010.)] Between: M/s. Kakinada SEZ Limited, [(Formerly known ][as ][Kakinada SEZ Private Limited) ][4h]floor GMR Aero Towers, Rajiv Gandhi [lnternational Airport Shamshabad, ][Hyderabad]-500 108 ...APPELLANT AND Assistant Commissioner Of lncome [Tax, ][Circle ][2(2)Hyderabad ][...RESPONDENT] lA NO: I OF2018 Petition under Section 5 of Limitation [Act ] [praying ][that ][in ][the]circumstances stated in the affidavit [filed ][in support ][of ][the ][petition, ][the ][High Court]may be pleased to condone delay of [1729 days in ][filing the above ][appeal against]the orders [passed ]in lTA.No. [2 ][1 ]3/HYD [21 ][2 Dated.l ][8 ][lO1 1201 ][3] Counse! for the Appellant: SRl. CHALLA Counsel for the Respondent: Ms. K. S.C. FOR I.T. DEPT The Court delivering the following: [Judgment] THE HONOURABLE SRI JUSTICE P.SAM KOSHYANDTHE HON'BLE SRI JI'STICE LAXMI NARAYANA ALISHETTY LA.NO.1 [()F ]2()14IN/ANDI.T.T.A.No.74 OF 2()18 JUDGMENT: (per Hort'ble Sn Justice Laxmi Naragana Alishettg) The present Appeal is filed by the appellant under Section 260- A oi the lncome Tax Act, 196 l, assailing the Order of the Income TaxAppellate Tribunal (lTA'l'), Bench-B, Hyderabad in I.T.A.No.2 I 3 I Hyd /2O12, dated 18.01.2013, for the Assessment Year 2OO8-2OO9. Astherc is dela5, 66 1729 days in preferring the Appeai, the appellantlilt'r1 I A.No 1 of 2O1l] r.o condone ti-re delay. 2. We have hear<l learned counsel Sri Challa Gunaranjan lor theappcllant and learned counsel Ms. K.Mamata for the rcspondent. 3 Without referring to the merits of the appeal, it is appropriateto first consider the I.A.No. I of 2018 filed for condonation of delay ofI729 days in preferrir:g the appeal. 4. As pcr tht-' pcr tht-' tht-' perragraphs-4 & 5 of thc afhdavir filecl in support of5 of thc afhdavir filecl in support ofof thc afhdavir filecl in support ofthc afhdavir filecl in support offilecl in support ofin support ofsupport ofl.A N<.r. 1 of 2O 18, the deponcnt i.e., Chief Financial Officer of thepetitioner-company states thert petitioner-company had preierrecisccond appeal to lhe lncome Tax Appellate Tribunal inI.'l'.A.No.213/l'lydll2O12, for thc Assessment Year 2008-O9 an<l the As pcr tht-' pcr tht-' tht-' perragraphs-4 & 5 of thc afhdavir filecl in support of5 of thc afhdavir filecl in support ofof thc afhdavir filecl in support ofthc afhdavir filecl in support offilecl in support ofin support ofsupport of same was disposed of vide order dated 19.01.2013 following theearlier judgment in I.T.A.No.t2t}lHl 20tO dated 29.t2.2OtO.Aggrieved by the said order, the petitioner-company hled Appeal videI.T.T.A.No.327 of 2O11 before this Hon,bte Court and the same wasadmitted and is pending for hnal hearing.admitted and is pending for hnal hearing. 5. In paragraphs-7 & 8 of the affidavit filed in support of I.A.No. 1of 2O18, the deponent further stated that the Associate GeneralManager of the petitioner-company had left the petitioner-companyon 11.O3.2O13 without informing the case details. same was disposed of vide order dated 19.01.2013 following theearlier judgment in I.T.A.No.t2t}lHl 20tO dated 29.t2.2OtO.Aggrieved by the said order, the petitioner-company hled Appeal videI.T.T.A.No.327 of 2O11 before this Hon,bte Court and the same wasadmitted and is pending for hnal hearing.admitted and is pending for hnal hearing. 5. In paragraphs-7 & 8 of the affidavit filed in support of I.A.No. 1of 2O18, the deponent further stated that the Associate GeneralManager of the petitioner-company had left the petitioner-companyon 11.O3.2O13 without informing the case details. 6. Secondly, the Oflice of the petitioner-company was changedfrom GMR HAIL Airport Office, Rajiv Gandhi International Airport,Shamshabad, Hyderabad to 4ft floor, GMR Aero Towers, Rajiv GandhiInternational Airport, Shamshabad Hyderabad. He further statesthat due to the above reasons, the petitioner-company couid notlocate the case file and that the petitioner-company is under theimpression that the Appeal ITTA No.327 of 2OI I filed before thisCourt is only the Appeal. 7. Thirdly, he stated that petitione r-company was underimpression that appeals were preferred for the Assessment year2OO7 -OB and 2008-O9. But when contacted, their counsel informedthat the appeal was preferred only for the Assessment Year 2OO7-OB.On realizing the mistake committed by them, they have immediately taken steps to hle the above appeal for the Assessment year 2OOg_Og.Thus, the delay is occurred only due to the above facts and it isneither wilful nor wanton. Therefore, learned counsel for thepetitioners prays the Court to condone the delay in preferring theappeal. 8. Per contra, according to learned counsel for respondent, thereis inordinate deiay of 1729 days in preferring the appeal and theappeal is liable to be dismissed on that ground alone. 9. The reason stated in the aflidavit the aflidavit aflidavit are vague, unsatisfactory vague, unsatisfactory unsatisfactory andthe reasons offered by the petitioner is that an employee i.e.,Associate General Manager of the company left the company onI 1.03.2013 without informing the case details. The reason stated in the aflidavit the aflidavit aflidavit are vague, unsatisfactory vague, unsatisfactory unsatisfactory and 10. Secondly', rhe company changed the Office from GMR HAILAirport Office, Rajiv Gandhi Intemational Airport, Shamshabad,Hyderabad to 4h floor, GMR Aero Towers, Rajiv Gandhi InternationalAirport, Shamshabad Hyderabad. I 1. The averments made in the affidavit that the employee left thepetitioner-company without informing the case details and thecompany came to kno,*, about non_filing of the appeal for theAssessment Year 2OO7-0g, cannot be valid, proper explanation, thattoo when ,the1-e is an inordinate delay of 1729 days in preferring thepetitioner-company without informing the case details and thecompany came to kno,*, about non_filing of the appeal for theAssessment Year 2OO7-0g, cannot be valid, proper explanation, thattoo when ,the1-e is an inordinate delay of 1729 days in preferring the appeal. It is pertinent to note that petitioner is a company and notan individual, therefore, the contention of the petitioner that one ofthe employees i.e., Associate General Manager had left the petitionercompany on 11.03.2013 without informing the case details andfurther the peLitioner-company chalged their Ofhce, does not inspirethe confrdence of this Court, more so, in the light of compliance ofstatutory requirements, such as, hling of half yearly balance sheet,annual returns, statutory audit etc. Therefore, it is neither expectednor assumed that petitioner-company would depend on one employeeof the company. 12. Condonation of delay is not a matter of routine, more so whenthere is huge inordinate delay and, therefore, the [petitioner ]ought tohave offered detailed, cogent reasons, plausible explanation for suchdelay. 13. In Basawaraj and another v. Special Land [Acquisition]Oflicerl, the Hon'ble Supreme Court held as under: 12. Condonation of delay is not a matter of routine, more so whenthere is huge inordinate delay and, therefore, the [petitioner ]ought tohave offered detailed, cogent reasons, plausible explanation for suchdelay. 13. In Basawaraj and another v. Special Land [Acquisition]Oflicerl, the Hon'ble Supreme Court held as under: "11. The expression "sufficient cause" should [be given ][a ][liberal]interpretation to ensure that substantial [justice ][is ][done, but only]so long as negligence, inaction or lack of bona frdes [cannot ][be]imputed. to tlE partg concemed, whether or not sufllcrent [cause]has been furnished, can be decided on the [facts of ][a ]Particularcase and no straitjacket formula is possible. [pide ][Madanlal ][v.] ' [zotl ][(ra) ][scc ][gt] ShgamLal I(2OO2\ | SCC 535 : AIR 2OO2 SC 10Ol and Ram NathSaov. GobardlLan Sao [(20O2) 3 SCC 195 : AIR 2002 SC 1201] .)Saov. GobardlLan Sao [(20O2) 3 SCC 195 : AIR 2002 SC 1201] .) 12. It is a settled legal proposition that law of limitation mayharshll affecr a particular party but it has to be applied with allits rigour when the statute so prescribes. The court has nopower to extend the period of limitation on equitable grounds. "Aresult flowing from a statutory provision is never an evil. A courthas no power to ignore ttrat provision to relieve what it considersa distress resultrng from its operation." The statutory provisionmay causc hardship or inconvenience to a particular party butthe court has no choice but to enforce it giving fuU effect to thesame. Tho lcgal maxim dura lex sed lex which means'the law ishard but it is tlre taw", stands attracted in such a situation. Ithas consistentll, been held that, "inconvenience is not" a decisivefactor to be corrsiclered while interpreting a statute. 15. The law on the issue can be summarised to the effect that\vher€ a case has been presented in the court beyond limitation,the applicanr has to explain the court as to what was the\vher€ a case has been presented in the court beyond limitation,the applicanr has to explain the court as to what was the"su[fi(]ieDL caust " u,hich means an adequate and enough reasonrr hrc h preventccl him to approach the court within limitation. In(ase a part\ rs lbund to be negligent, or for want of bona lide onhis perrr rn rhe facts and circumstances of the case, or found tohave not acted drligentty or remained inactive, there cannot be aIustified [ground ][ro ][condone ]the delay. No court could be justihedrn condonrng such an inordinate delay by imposing anycorldnron u'hatsoever. The apptication is to be decided onlywithirr the parameters laid down by this Court in regard to the(ase a part\ rs lbund to be negligent, or for want of bona lide onhis perrr rn rhe facts and circumstances of the case, or found tohave not acted drligentty or remained inactive, there cannot be aIustified [ground ][ro ][condone ]the delay. No court could be justihedrn condonrng such an inordinate delay by imposing anycorldnron u'hatsoever. The apptication is to be decided onlywithirr the parameters laid down by this Court in regard to thecondonation of delay. [n case there was no sulficient cause toprevenr a litigant to approach the court on time condoning thedelay without any justification, putting any conditiondelay without any justification, putting any conditionwhatsoever, amounts to passing an order in violation of thestatutorl.' provrsions and it tantamounts to showing utterdisregard to thc legrslaturestatutorl.' provrsions and it tantamounts to showing utterdisregard to thc legrslature 14. In Postmaster General and others vs. Living Media IndiaLimited and another2, Hon'ble Apex Court having considered catenaof decisions, including Pundlik Jalam Patil (deadf by LRs. Vs.Executive Engineer, Jalgaon Medium Project and another3,wherein it was held that, 14. In Postmaster General and others vs. Living Media IndiaLimited and another2, Hon'ble Apex Court having considered catenaof decisions, including Pundlik Jalam Patil (deadf by LRs. Vs.Executive Engineer, Jalgaon Medium Project and another3,wherein it was held that, "17....... Th.e evidence on record suggests neglect of its own rightfor long time in preferring app€als. The court cannot [enquire into]belated and stale claims on the [ground ]of equity. [Delay ][defeats]equity. The court helps those who are [vigilant ]and ['do ][not]slumber over their rights". and observed that taking very lenient [view ]in condoning [thc ][delay,]paJticularly, on the part of the Government and CovernmentUndertaking, would not be proper and observed as [under:-] "29. It needs no restatement at our [hands ][that ][the ][object ][for ][fxing]time-limit for titigation is based on [pubtic policy ][fixing ][a lifespan ][for]legal remedy for tl.e [purpose ]of [general ][welfare. They ][are ][meant to]see that the parties do not resort to ditatory tactics [but ][avail their]legal remedies promptly. Salmond in his Jurisprudence [states ][that]the taws come to the assistance of the [vigilant and not ][of ][the ][sleepy.] 3O- Public interest undoubtedly is a [paramount consideratlon ][In]exercising the courts' discretion [wherever conferred ][upon ][it ][by ][thc]relevant statutes. Pursuing stale claims [and ][muttipticity ][of]proceedings in no manner subserves [public ]interest. [Prompt ][and]timely payment of compensation [to the landlosers ][facilitating their]rehabititation/resettlement is equalty an [integral ][part ][of ][public]poticy- Public interest demands that the [State ]or the [beneficiary of]acquisition, as the case may [be, ][should not ][be ][allowed to indulge in]any act to unsettle the settled legal [riShts accrued ][in ][larv ][by]resorting to avoidable titigation unless [the claimants are ][guilty ][of]deriving benefit to which they are otherwise [not ][entitled, ][in ][any]fraudulent manner. One should not [forget ][the ][basic fact ][that ][l^'hat]is acquired is not the land but the livelihood [of ][the ][landlosers]These public interest [parameters ]ought [to ][b€ ][kept ][in ][mind ][by ][the]courts while exercising the discretion [dealing ][with ][the ][application]filed under Section [5 ]of [the ][Limitation ][Act. Dragging the landlosers]to courts of law [years ]after [the ][termination ][of ][legat ][proceedings]would not serve any [public ][interest. Settled ][rights ][cannot ][be ][lightly]interfered with by [condoning ][inordinate ][delay ][without ][there ][being] ? (2012) 3 scc 563' lzooay [tz ][sc aa8]' lzooay [tz ][sc aa8] I anv proper explanation of such delay on the ground of involvementof public revenue. It serves no public interest." 15. In Government of Maharashtra (Water ResourcesDepartmentl rep.by Executive Engineer vs. Borse BrothersEngineers and Contractors Private Limiteda, Hon'ble Supreme Court held as under: "63. ...... [n a ht case ir.r which a party has otherwise actedbona fide and not in a negligent manner, a short deiaybeyond such period can, in the discretion of the court, becondoned, always beanng in mind that the other side of thepicture is that the opposite party may have acquired both inequity and justice, what may now be lost by the first party'sinaction. negligence or laches." 16. Considering the facts of the case and the legal position and also in view of the fact that the reasons for condonation of inordinatedelav o[ 1729 days in preferring appeal are not properly explainedand no sulficrent cause has been shown for such delay, the I.A.No. Iof 20 18 deserves to be dismissed and is accordingly dismissed.Consequently, the LT.'l'.A.No 74 of 20l8 stands dismissed. 17. Pending miscellaneous applications if any shall stand closed. (202r)6 SCC 460 Sd/.B.S.CHIRANJEEVIJOINT REGISTRARI [t'!]SECTION OFFICER //TRUE COPY// To 1. The lncome Tax Appellate [Trubunal Hyderabad ] [Bench,]Hyderabad. [(with ]record, if anY)Hyderabad. [(with ]record, if anY) 16. Considering the facts of the case and the legal position and also in view of the fact that the reasons for condonation of inordinatedelav o[ 1729 days in preferring appeal are not properly explainedand no sulficrent cause has been shown for such delay, the I.A.No. Iof 20 18 deserves to be dismissed and is accordingly dismissed.Consequently, the LT.'l'.A.No 74 of 20l8 stands dismissed. 17. Pending miscellaneous applications if any shall stand closed. (202r)6 SCC 460 Sd/.B.S.CHIRANJEEVIJOINT REGISTRARI [t'!]SECTION OFFICER //TRUE COPY// To 1. The lncome Tax Appellate [Trubunal Hyderabad ] [Bench,]Hyderabad. [(with ]record, if anY)Hyderabad. [(with ]record, if anY) 2. The Commissioncr of lncome [Tax ][( ][Appeals ]) -III, [Hyderabad] 3. The Assistant Commissioner [of ][Income ][Tax ], [Circle ][-2(2) ], [Hyderabad] , 4. One CC to SRl. [Advocate ] 5. One CC to Ms. K [CHOUDARY, ][Advocate ] 6. Two CD Copies HIGH COURT DATED:01 10812023 JUDGMENT|.A.NO. 1 0F 2018IN/ANDlTTA.No.74 of 2018 DISMISSING THE ITTA + S TA I€'1'^E (Ju2 [s ][[lJB2m]a.-1,1i.;,,i [i ][r]