K.t.kunjumon [ Petitioner ] v. The Assistant Commissioner [ Respondent ]Of Income Tax, Corporate Circle 1(5) Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRAS ( Civil Appellate Jurisdiction ) Friday, the Eighth day of April Two Thousand Twenty Two PRESENT THE HON`BLE MR.JUSTICE R.MAHADEVAN AND THE HON`BLE MR JUSTICE J.SATHYA NARAYANA PRASAD CMP.No.16186 of 2021in TCA.SR.No.51482 of 2013 K.T.KUNJUMON [ PETITIONER ]S/O.SHRI K.THOMAS, BUDDHA ST, ASHOK AVENUE, KODAMBAKKAM, CHENNAI 600024 PAN . Vs THE ASSISTANT COMMISSIONER [ RESPONDENT ]OF INCOME TAX, CORPORATE CIRCLE 1(5) CHENNAI 600034. Petition praying that in the circumstances stated therein andin the affidavit filed therewith the High Court will be pleased tocondone the delay of 2423 days in representing the above tax caseappeal [IN CMP.No.16186 of 2021 in TCA.SR.No.51482 of 2013] Order : This Miscellaneous petition coming on this day forhearing upon perusing the petition and the affidavit filed insupport thereof and upon hearing the arguments of MR.R.SIVARAMAN,Advocate for the petitioner and of MR.J.NARAYAN SWAMY, SENIORSTANDING COUNSEL for M/S.K.G.USHA RANI, STANDING COUNSEL on behalfof the Respondent, the court made the following order:- (Order of the court was made by R.MAHADEVAN, J.) This petition is filed by the petitioner / appellant /assessee seeking to condone the delay of 2423 days in representingthe above Tax Case Appeal, which was filed against the order dated31.01.2013 passed by the Income Tax Appellate Tribunal, Chennai 'B'Bench in IT(SS)A.No.21/Mds/2012 relating to the block assessmentperiod from 01.04.1986 to 31.03.1996 and from 01.04.1996 to20.01.1997.https://hcservices.ecourts.gov.in/hcservices/ 2.The learned counsel appearing for the petitioner reiteratingthe averments made in the affidavit filed in support of thispetition, submitted that the petitioner has age related healthissues, including cardio, diabetes, gastro and urology problems andhas been undergoing continuous treatment till date, due to which,he could not run his business successfully and in order tostabilize the same, he borrowed loans, but was unable to repay thesame. As a result, all his immovable properties were attached bythe department. The learned counsel further submitted that thepetitioner after coming to know about the Vivad Se Vishwas Scheme,2020, intended to avail the benefit of the same, but he was unableto mobilise funds to settle the dues. It is also submitted that inthe mean while, the appeal in TCA No.664 of 2019 filed by thedepartment was dismissed in favour of the petitioner andthereafter, he took steps to represent the appeal papers with adelay of 2423 days. Therefore, according to the learned counsel,the delay occasioned is neither wilful, nor wanton, but only due tothe reasons stated hereinabove and the same may be condoned and anopportunity be provided to the petitioner to contest his case onmerits, as he has fair chance of success in this appeal. 3.On the other hand, the learned senior standing counselappearing for the respondent filed a counter affidavit andsubmitted that the Hon'ble Supreme Court has held that Section 5 ofthe Limitation Act is hard task Master and therefore, a litigantwho is not vigilant, must explain each day delay. Whereas, in thiscase, the petitioner has not shown sufficient or reasonable causeand date wise particulars with regard to the exorbitant delay of2423 days in representing the appeal papers. Hence, the learnedcounsel prayed to reject the plea of the petitioner / appellant anddismiss this miscellaneous petition. The learned counsel furthersubmitted that the petitioner / appellant failed to discharge theburden cast upon him, by producing satisfactory materials asregards the borrowal of Rs.60 lakhs from M/s.G.V.Films, eitherbefore the assessing officer or before the CIT(A) or even beforethe Tribunal and hence, there is no infirmity in the order passedby the Tribunal, which is impugned in the tax case appeal. 4.Heard both sides and perused the materials placed beforethis court. 5.Admittedly, the petitioner preferred the tax case appealvide SR.No.51482 of 2013 as against the order of the Income TaxAppellate Tribunal on 19.06.2013. However, the said appeal paperswere returned by the Registry for want of certain compliance. Afterrectifying the defects, the petitioner represented the same on17.09.2021 and in this process, there was a delay of 2423 daysoccasioned. He sought to condone the same citing his health issues,whereas the department raised serious objection for condoning sucha huge and inordinate delay occasioned on the part of thepetitioner. https://hcservices.ecourts.gov.in/hcservices/ 6.Before appreciating the submissions made on either side, itis pertinent to refer to the following decisions, in regard to thecondonation of delay: (i)N. Balakrishnan v. M. Krishnamurthy, [1998(7) SCC 123],wherein, it was observed by the Hon'ble Supreme Court as follows: “The primary function of a court is to adjudicate the disputebetween the parties and to advance substantial justice. The time-limit fixed for approaching the Court in different situations isnot because on the expiry of such time a bad cause would transforminto a good cause. Rules of limitation are not meant to destroy therights of parties. They are meant to see that parties do not resortto dilatory tactics, but seek their remedy promptly. The object ofproviding a legal remedy is to repair the damage caused by reasonof legal injury. The law of limitation fixes a lifespan for suchlegal remedy for the redress of the legal injury so suffered. Thelaw of limitation is thus founded on public policy. It is enshrinedin the maxim interest reipublicae up sit finis litium (it is forthe general welfare that a period be put to litigation). Rules oflimitation are not meant to destroy the rights of the parties. Theyare meant to see that parties do not meant to dilatory tactics butseek their remedy promptly. The idea is that every legal remedymust be kept alive for a legislatively fixed period of time.Condonation of delay is a matter of discretion of the Court.Section 5 of the Limitation Act does not say that such discretioncan be exercised only if the delay is within a certain limit.Length of delay is no matter, acceptability of the explanation isthe only criterion. Sometimes delay of the shortest range may beuncondonable due to a want of acceptable explanation whereas incertain other case, delay of a very long range can be condoned asthe explanation thereof is satisfactory. In every case of delay,there can be some lapse on the part of the litigant concerned. Thatalone is not enough to turn down his plea and to shut the dooragainst him. If the explanation does not smack of mala fides or itis not put forth as part of a dilatory strategy, the court mustshow utmost consideration to the suitor. But when there isreasonable ground to think that the delay was occasioned by theparty deliberately to gain time, then the court should lean againstacceptance of the explanation. A court knows that refusal tocondone delay would result in foreclosing a suitor from puttingforth his cause. There is no presumption that delay in approachingthe court is always deliberate. The words 'sufficient cause" underSection 5 of the Limitation Act should receive a liberalconstruction so as to advance substantial justice.” (ii)In Esha Bhattacharjee v. Raghunathpur Nafar Academy [2013(12) SCC 649], the Hon'ble Supreme Court has culled out theprinciples applicable to an application for condonation of delayand the same are profitably reproduced hereunder: https://hcservices.ecourts.gov.in/hcservices/ “i) There should be a liberal, pragmatic, justice-oriented,non- pedantic approach while dealing with an application forcondonation of delay, for the courts are not supposed to legaliseinjustice but are obliged to remove injustice. (ii)In Esha Bhattacharjee v. Raghunathpur Nafar Academy [2013(12) SCC 649], the Hon'ble Supreme Court has culled out theprinciples applicable to an application for condonation of delayand the same are profitably reproduced hereunder: https://hcservices.ecourts.gov.in/hcservices/ “i) There should be a liberal, pragmatic, justice-oriented,non- pedantic approach while dealing with an application forcondonation of delay, for the courts are not supposed to legaliseinjustice but are obliged to remove injustice. ii) The terms “sufficient cause” should be understood in theirproper spirit, philosophy and purpose regard being had to the factthat these terms are basically elastic and are to be applied inproper perspective to the obtaining fact- situation. iii) Substantial justice being paramount and pivotal thetechnical considerations should not be given undue and uncalled foremphasis. iv) No presumption can be attached to deliberate causation ofdelay but, gross negligence on the part of the counsel or litigantis to be taken note of. v) Lack of bona fides imputable to a party seeking condonationof delay is a significant and relevant fact. vi) It is to be kept in mind that adherence to strict proofshould not affect public justice and cause public mischief becausethe courts are required to be vigilant so that in the ultimateeventuate there is no real failure of justice. vii) The concept of liberal approach has to encapsule theconception of reasonableness and it cannot be allowed a totallyunfettered free play. viii) There is a distinction between inordinate delay and adelay of short duration or few days, for to the former doctrine ofprejudice is attracted whereas to the latter it may not beattracted. That apart, the first one warrants strict approachwhereas the second calls for a liberal delineation. ix) The conduct, behaviour and attitude of a party relating toits inaction or negligence are relevant factors to be taken intoconsideration. It is so as the fundamental principle is that thecourts are required to weigh the scale of balance of justice inrespect of both parties and the said principle cannot be given atotal go by in the name of liberal approach. x) If the explanation offered is concocted or the groundsurged in the application are fanciful, the courts should bevigilant not to expose the other side unnecessarily to face such alitigation. xi) It is to be borne in mind that no one gets away withfraud, misrepresentation or interpolation by taking recourse to thetechnicalities of law of limitation.https://hcservices.ecourts.gov.in/hcservices/ xii) The entire gamut of facts are to be carefully scrutinizedand the approach should be based on the paradigm of judicialdiscretion which is founded on objective reasoning and not onindividual perception. xiii) The State or a public body or an entity representing acollective cause should be given some acceptable latitude.” (iii)It is also useful to extract paragraph Nos.14 and 17 ofthe judgment of this court in Tamilnadu Mercantile Bank Ltd., Vs.Appellate Authority, [(1990) 1 LLN 457], which read as under: xi) It is to be borne in mind that no one gets away withfraud, misrepresentation or interpolation by taking recourse to thetechnicalities of law of limitation.https://hcservices.ecourts.gov.in/hcservices/ xii) The entire gamut of facts are to be carefully scrutinizedand the approach should be based on the paradigm of judicialdiscretion which is founded on objective reasoning and not onindividual perception. xiii) The State or a public body or an entity representing acollective cause should be given some acceptable latitude.” (iii)It is also useful to extract paragraph Nos.14 and 17 ofthe judgment of this court in Tamilnadu Mercantile Bank Ltd., Vs.Appellate Authority, [(1990) 1 LLN 457], which read as under: “14.We are unable to agree with the reasoning of the learnedJudge that no litigant ordinarily stands to benefit by institutinga proceeding beyond time. It is common knowledge that by delaying amatter, evidence relating to the matter in dispute may disappearand very often the party concerned may think that preserving therelevant records would be unnecessary in view of the fact thatthere was no further proceeding. If a litigant chooses to approachthe Court long after the time prescribed under the relevantprovisions of the law, he cannot say that no prejudice would becaused to the other side by the delay being condoned. The otherside would have in all probability destroyed the records thinkingthat the records would not be relevant as there was no furtherproceeding in the matter. Hence to view a matter of condonation ofdelay with a presupposition that no prejudice will be caused by thecondonation of delay to the respondent in that application will befallacious. In our view, each case has to be decided on the factsand circumstances of the case. Length of the delay is a relevantmatter to be taken into account while considering whether the delayshould be condoned or not. It is not open to any litigant to fixhis own period of limitation for instituting proceedings for whichlaw has prescribed period of limitation.” “17.... Once it is held that a party has lost his right tohave the matter considered on merits because of his own inactionfor a long time, it cannot be presumed to be non-deliberate delay,and in such circumstances of the case, he cannot be heard to pleadthat substantial justice deserved to be preferred as againsttechnical considerations. We are of the view that the question oflimitation is not merely a technical consideration. Rules oflimitation are based on principles of sound public policy andprinciples of equity. It is a litigant liable to have a Damocles'sword hanging over his head indefinitely for a period to bedetermined at the whims and fancies of the opponent.” Thus, the legal position discernible from the aforesaid decisionsis that the question of limitation is not based on technicalconsideration, but is on the principles of public policy andequity; and the substantial justice is paramount consideration andpivotal. https://hcservices.ecourts.gov.in/hcservices/ 7.That apart, a Co-ordinate Bench of this court, in similarcircumstances, in CMP.No.12925 of 2021 in CMA.SR.No.61827 of 2021,by order dated 09.09.2021, after taking note of the reasons adducedby the petitioner, which found to be sufficient cause, has condonedthe delay of 3426 days in filing the civil miscellaneous appeal,however, subject to payment of costs of Rs.10,000/- by thepetitioner / appellant. Thus, the legal position discernible from the aforesaid decisionsis that the question of limitation is not based on technicalconsideration, but is on the principles of public policy andequity; and the substantial justice is paramount consideration andpivotal. https://hcservices.ecourts.gov.in/hcservices/ 7.That apart, a Co-ordinate Bench of this court, in similarcircumstances, in CMP.No.12925 of 2021 in CMA.SR.No.61827 of 2021,by order dated 09.09.2021, after taking note of the reasons adducedby the petitioner, which found to be sufficient cause, has condonedthe delay of 3426 days in filing the civil miscellaneous appeal,however, subject to payment of costs of Rs.10,000/- by thepetitioner / appellant. 8.Thus, this court, considering the reasons adduced in theaffidavit filed by the petitioner and also following the aforesaidlegal proposition coupled with the earlier order of this court, isinclined to condone the delay in representing the appeal, subjectto payment of Rs.10,000/- towards costs to the Tamil Nadu Mediationand Conciliation Centre, High Court, Chennai, within a period ofthree weeks from the date of receipt of a copy of this order. Uponcomplying with the aforesaid direction, this petition standsordered. Thereafter, on production of the receipt for payment ofcosts, the Registry shall take further course of action. -sd/- 08/04/2022 / TRUE COPY / TO 1 THE INCOME TAX APPELLATE TRIBUNAL, “B” BENCH, CHENNAI 2 THE ASSISTANT COMMISSIONER OF INCOME TAX,CORPORATE CIRCLE 1(5), CHENNAI 600 034 COPY TO THE TAMIL NADU MEDIATIONAND CONCILIATION CENTRE,HIGH COURT, MADRAS 104. Order CMP.No.16186 of 2021 From 26.2.2001 the Registry is issuing certified copies of the Interim Orders in this formathttps://hcservices.ecourts.gov.in/hcservices/ RA 29/04/2022