Principal Commissioner Of Incometax-1, Kolkata v. M/S. Sethia Oil Industries Limited

OD-21 ITAT/16/2021IA No.GA/1/2021IA No.GA/2/2021 IN THE HIGH COURT AT CALCUTTASpecial Jurisdiction (Income Tax)ORIGINAL SIDE PRINCIPAL COMMISSIONER OF INCOMETAX-1, KOLKATA -Versus- M/S. SETHIA OIL INDUSTRIES LIMITED Appearance:Ms. Smita Das De, Adv....for the appellant. Mr. S. M. Surana, Adv.Mr. Anil Kumar Dugar, Adv.Mr. Rajarshi Chatterjee, Adv....for the respondent. BEFORE: The Hon’ble JUSTICE T.S. SIVAGNANAM -And- The Hon’ble JUSTICE HIRANMAY BHATTACHARYYA The Court : We have heard Ms. Smita Das De, learnedstanding counsel for the appellant/revenue and Mr. S. M. Surana,learned counsel assisted by Mr. Anil Kumar Dugar and Mr. RajarshiChatterjee, learned Advocates for the respondent/assessee. There is a delay of 1178 days in filing the appeal. Therespondent/assessee has filed an affidavit-in-opposition and thelearned advocate for the respondent would vehemently oppose the delay. An affidavit-in-reply to the affidavit-in-opposition hasbeen filed by the department in Court today which is taken onrecord. On perusal of the affidavit-in-reply we find that if theappeal had been filed prior to 3[rd] September, 2017 it would havebeen within time. However, the appeal was filed on 25[th] January,2021 resulting in a delay of 1178 days. Though there isabsolutely no explanation given in the affidavit in support of theapplication for condonation of delay, in the reply an attempt hasbeen made by the department to explain the delay. We find such anattempt is absolutely futile. In paragraph 3 of the reply, thedepartment has given a tabulated statement giving certain datesand events. It may not be necessary for us to take into all thedates and events post 14[th] September, 2018 as the period oflimitation for filing the appeal expired on 3[rd] September, 2017.Therefore, if the department has to make out a case, they shouldexplain the delay from 3[rd] September, 2017 and the department hassought to explain the delay after 14[th] September, 2018.The reasons given by the department is that the case wastransferred from Central Circle-3(3), Kolkata to DCIT, Circle –9(2), Kolkata as per the order dated 17[th] May, 2018 passed underSection 127 of the Income Tax Act, 1961. The affidavit-in-replyproposes to explain the events which took place after 14[th]September, 2018. However, in absence of any explanation from 3[rd]September, 2017 to 14[th] September, 2018 we have no option except to hold that the delay cannot be condoned. Even going by the datesand events after 14[th] September, 2018 we find that there areseveral periods during which the delay remained unexplained. In arecent decision of the Hon’ble Supreme Court in Union of India vs.Central Tibetian School Administration & Ors. reported in 2020(21) SCC Online SC 119 the delay of 532 days in filing the appealwas refused to be condoned as the Hon’ble Supreme Court took noteof its earlier decision in the State of Madhya Pradesh vs.Bherulal, reported in [2020] 10 SCC 654 wherein the Courtdiscouraged the State Government and public authorities inadopting an approach that they can walk into the Hon’ble Supremecourt as and when they please ignoring the period of limitationprescribed by the statute as if the limitation statute does notapply to them. In the said decision, the celebrated decision inthe case of ChiefPost Master General vs. Living Media India Ltd.reported in 2012 (3) SCC 563 was also taken note of. In anyevent, the facts of each case has to be examined to see whethersufficient cause has been shown for condonation of delay. In thecase on hand, there is a delay of 1178 days. As pointed outearlier for more than two years there is absolutely no explanationand in the department who is presently pursuing the appeal wouldstate that it is the assessment Circle which is handling the fileprior to its transfer and they have no opinion about the delaywhich had occurred prior to the files which were transferred to them. This cannot be taken to be an explanation for condonationof delay. Thus, for the above reasons, we are not inclined to them. This cannot be taken to be an explanation for condonationof delay. Thus, for the above reasons, we are not inclined to condone the inordinate delay in filing the appeal. Accordingly,the application for condonation of delay (IA No.GA/1/2021) isdismissed. Consequently, the appeal (ITAT/16/2021) stands rejected. (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.) A/s/S.Das