South Eastern Coalfields Ltd., Seepat Road, Bilaspur, Chhattisgarh v. Pr. Commissioner Of Income Tax, Aaykar Bhawan, Vyapar Vihar,Bilaspur, Chhattisgarh

NAFR HIGH COURT OF CHHATTISGARH BILASPUR Judgment reserved on 17.07.2020Judgment delivered on 22.07.2020 Tax Case No.16 of 2020 (Arising out of order dated 05.11.2019 passed in MA No.41/RPR/2019by the Income Tax Appellate Tribunal, Raipur Bench, Raipur) South Eastern Coalfields Ltd., Seepat Road, Bilaspur, Chhattisgarh ---- Appellant Versus Pr. Commissioner of Income Tax, Aaykar Bhawan, Vyapar Vihar,Bilaspur, Chhattisgarh ---- Respondent For AppellantFor Respondent : Shri S. Rajeswara Rao, Advocate.: Smt. Naushina Afrin Ali Advocate on behalf of Shri Amit Chaudhari, Advocate. Hon'ble Shri P. R. Ramachandra MenonHon'ble Shri Parth Prateem Sahu, Judge , Chief Justice C A V Judgment P. R. Ramachandra Menon, Chief Justice 1.This appeal has been filed along with an IA for condonation of delay,however pointing out that, the limitation for filing the appeal virtuallyhad ended only on 30.03.2020 and that it was only because of'COVID-19 pandemic', that the appeal could not be filed on time. Butthe fact remains that, the Apex Court, as per order dated 23.03.2020in Suo Motu Writ Petition (Civil) No.3 of 2020 has held that theperiod of limitation will not be applicable during the period of 'lock-down' and hence, non-filing of the appeal during the period of lock-down cannot invite any adverse consequence with reference to thehowever pointing out that, the limitation for filing the appeal virtuallyhad ended only on 30.03.2020 and that it was only because of'COVID-19 pandemic', that the appeal could not be filed on time. Butthe fact remains that, the Apex Court, as per order dated 23.03.2020in Suo Motu Writ Petition (Civil) No.3 of 2020 has held that theperiod of limitation will not be applicable during the period of 'lock-down' and hence, non-filing of the appeal during the period of lock-down cannot invite any adverse consequence with reference to the 2. 3. law relating to limitation. This aspect has been rightly noted by theRegistry and no delay has been noted. As such, the IA does notrequire consideration and stands closed, as the appeal is noted asfiled 'within time'. This appeal is at the instance of the Assessee, under Section 260Aof the Income Tax Act, 1961, challenging the order dated 05.11.2019passed by the Income Tax Appellate Tribunal, Raipur Bench, Raipurin MA No.41/RPR/2019 (filed by the Assessee for restoration of theappeal with a petition to condone delay of '1924' days). The MA forrestoration was dismissed holding that the delay has not beenexplained, nor has the chronology of events pertaining to suchinordinate delay has been given by way of any affidavit. The case put up by the Appellant/Assessee is that, the Assessee is aPublic Sector Undertaking and a subsidiary of the Coal India Limited,which is engaged in the development of mines, mining activities andtrading of coal. The return for the assessment year 2007-08 was filedon 31.10.2007, which came to be revised and enhanced as per therevised return filed later. The Assessing Authority proceeded withfurther steps and the assessment was completed under Section143(3) of the Income Tax Act, 1961, making various additions andeffecting disallowances under some heads, as borne by AnnexureA/2 Assessment Order. Being aggrieved of the assessment, theAssessee preferred an appeal before the Commissioner of IncomeTax, Bilaspur, vide Annexure A/3, which came to be partly allowed asper Annexure A/4. Met with the situation, the Assessee preferredAnnexure A/5 appeal before the Income Tax Appellate Tribunal, to 4. the extent the Assessee was aggrieved. A similar appeal was filedfrom the part of the Revenue as well, insofar as the issue wasdecided against them. 4. the extent the Assessee was aggrieved. A similar appeal was filedfrom the part of the Revenue as well, insofar as the issue wasdecided against them. When the matters were considered by the Tribunal, it was found thatthe appeals were filed without obtaining the approval of the HighPower Committee in terms of the verdict passed by the Apex Courtin Oil and Natural Gas Commission and Another v. Collector ofCentral Excise reported in (1992) 104 CTR Reports 31.Accordingly, both the appeals were dismissed as not maintainable asper Annexure A/6 order dated 03.06.2010; however, leaving it opento the parties to file applications for revival of the appeals afterobtaining clearance. It is pointed out that the Apex Court had subsequently made it clearin Electronics Corporation of India Limited v. Union of India andOthers reported in (2011) 238 CTR Reports 353 that the provisionsrelating to COD approval had outlived their utility. In the saidcircumstance, the Revenue had filed an MA to get their appealrestored. After hearing both the sides, the Revenue's appeal wasrestored as per Annexure A/7 order dated 21.10.2011, though suchrestoration was opposed from the part of the Assessee. No furthersteps were pursued from the part of the Assessee with regard totheir appeal for several years and it was only in September 2019,that the Assessee chose to file MA as borne by Annexure A/8 torestore their appeal dismissed on 03.06.2010, with a petition tocondone the delay of 1924 days. The reason stated for theinordinate delay was that, because of the transfer/retirement of the 6. 7. concerned officers-in-charge and the change in income taxconsultant, it could not be filed on time. This was considered andheld as not a satisfactory explanation to condone the inordinatedelay; more so, in the absence of any affidavit and it wasaccordingly, that the said MA was dismissed as per Annexure A/1order dated 05.11.2019, correctness of which is put to challenge. Shri S. Rajeswara Rao, the learned counsel for theAppellant/Assessee was required to demonstrate the “substantialquestion of law” involved, so as to entertain the appeal preferredbefore this Court, particularly, since the order under challenge(Annexure A/1) has been passed on a factual aspect as to theinordinate delay in filing the MA and not on merits. According to thelearned counsel, the Tribunal was not justified in dismissing theappeal merely based on the verdict of the Apex Court in ONGC(supra) and that in view of subsequent ruling of the Apex Court inElectronics Corporation of India Limited (supra), the appeal hadto be restored. Smt. Naushina Afrin Ali, the learned standing counsel representingthe Respondent-Revenue submits that there is absolutely no merit orbonafides in the appeal preferred by the Assessee. The dismissal ofthe appeals filed by the Assessee and the Revenue as per AnnexureA/6 order passed on 03.06.2010 was based on the law that prevailedas on that date. However, in view of subsequent ruling rendered bythe Apex Court and by virtue of the liberty granted by the Tribunalitself while dismissing the appeals as per Annexure A/6 order dated03.06.2010, to file MA on getting COD clearance; the Revenue filed 8. 9. an MA for restoration of the appeal, which was allowed after hearingboth the sides vide Annexure A/7 dated 21.10.2011. Instead of takingany similar step by the Assessee to get their appeal restored, theywere sleeping over the issue for near 7-8 years and it was thereafter,that the MA was filed in September 2019 with a petition to condonethe inordinate delay of 1924 days; that too, without offering anysatisfactory explanation. In the said circumstance, dismissal of thesaid MA as per Annexure A/1 order, holding that the delay was notcondonable, is purely a question of fact and it does not involve anysubstantial question of law. 8. 9. an MA for restoration of the appeal, which was allowed after hearingboth the sides vide Annexure A/7 dated 21.10.2011. Instead of takingany similar step by the Assessee to get their appeal restored, theywere sleeping over the issue for near 7-8 years and it was thereafter,that the MA was filed in September 2019 with a petition to condonethe inordinate delay of 1924 days; that too, without offering anysatisfactory explanation. In the said circumstance, dismissal of thesaid MA as per Annexure A/1 order, holding that the delay was notcondonable, is purely a question of fact and it does not involve anysubstantial question of law. There is no dispute with regard to the sequence of events. Asmentioned already, the challenge before this Court in not against theoriginal order passed on 03.06.2010, vide Annexure A/6, dismissingthe appeal preferred by the Assessee, but against the order dated05.11.2019 (Annexure A/1) dismissing the MA for restoration-because of the refusal to condone the inordinate delay of 1924 days.Does it involve any substantial question of law, is the point to beconsidered in this appeal. The primary point to be noted is that the verdict passed by the ApexCourt in Electronics Corporation of India Limited (supra) was verymuch known to the Appellant/Assessee. There is also no disputethat, as per Annexure A/6 order, at the time of dismissing the appealfor want of COD approval, the Tribunal had reserved the right of theparties to file MA for restoration of the appeal on getting CODclearance. 10.In view of the ruling rendered by the Apex Court in ElectronicsCorporation of India Limited (supra), it was quite open for theAppellant/Assessee as well, to file MA for restoration then and there,which was never done. At the same time, the Revenue who wasprudent enough in pursuing their rights had filed MA for restoration oftheir appeal, which came to be allowed as per Annexure A/7 orderdated 21.10.2011.Corporation of India Limited (supra), it was quite open for theAppellant/Assessee as well, to file MA for restoration then and there,which was never done. At the same time, the Revenue who wasprudent enough in pursuing their rights had filed MA for restoration oftheir appeal, which came to be allowed as per Annexure A/7 orderdated 21.10.2011. 11.There is no case for the Appellant/Assessee that the Annexure A/7order was passed by the Tribunal (allowing the MA preferred by theRevenue and restoring their appeal) without notice to theAppellant/Assessee. On going through Annexure A/7 order dated21.10.2011, it is seen that the Appellant/Assessee was very muchrepresented through their counsel, but the stand of theAppellant/Assessee was something else, who virtually opposed therelief sought for by the Revenue in the MA, contending that the ApexCourt decision in Electronics Corporation of India Limited (supra)was not applicable to the case. This is discernible from paragraph-2of Annexure A/7 order, which is reproduced below for easyreference:order was passed by the Tribunal (allowing the MA preferred by theRevenue and restoring their appeal) without notice to theAppellant/Assessee. On going through Annexure A/7 order dated21.10.2011, it is seen that the Appellant/Assessee was very muchrepresented through their counsel, but the stand of theAppellant/Assessee was something else, who virtually opposed therelief sought for by the Revenue in the MA, contending that the ApexCourt decision in Electronics Corporation of India Limited (supra)was not applicable to the case. This is discernible from paragraph-2of Annexure A/7 order, which is reproduced below for easyreference: “2. On the other hand, the Ld. Counselfor the assessee Ms. Sushamu Basu andMr. Subhasis De read out the relevantportions from page 3 of the SupremeCourt and mentioned that the assessee'scase falls under exceptions andtherefore, the said apex court decision inthe case of ECIL (supra) is not applicableto the facts of the case. Accordingly, shefor the assessee Ms. Sushamu Basu andMr. Subhasis De read out the relevantportions from page 3 of the SupremeCourt and mentioned that the assessee'scase falls under exceptions andtherefore, the said apex court decision inthe case of ECIL (supra) is not applicableto the facts of the case. Accordingly, she argued with the prayer that the appeal ofthe revenue should be dismissed.” The Tribunal held in paragraph-3 that the learned counsel for theAssessee failed to demonstrate that their case was falling underexceptions to avoid retrospective operation of the judgmentsmentioned therein and it was accordingly, that the MA filed by theRevenue was allowed as per the said order. 12. This clearly shows the course and conduct pursued by theAssessee. In spite of having sufficient knowledge about the ApexCourt's judgment, they had contended before the Tribunal that thesaid decision was not applicable. At least, on allowing the MA filed bythe Revenue as per Annexure A/7 order dated 21.10.2011, theAppellant/Assessee could have filed a similar MA to get their appealas well to be restored, which course was not pursed by them. It wasafter waiting for nearly 7-8 years, that they had some second thoughtand have come up on some revelation, that similar MA could be filedwith a petition to condone the inordinate delay of '1924 days' asdiscernible from Annexure A/1. It is in the said circumstance that, themerit of the so-called explaination to condone the delay wasconsidered, leading to an adverse finding. 13.It will be worthwhile to examine the reasons stated for the inordinatedelay as given in paragraphs-5 and 6 of the MA, which arereproduced below: “5. That the applicant could not file saidMiscellaneous Application due to bonafide reasons of transfer/retirement of concerned officers-in-charge and changein its Tax Consultants resulting in loss oftrack of proceedings as there were morethan 50 appeals pending before thisHon'ble Tribunal. 6. That the mistake is traced now whilereconciling pendency of appeals andpresent application is filed immediatelyafter detecting the bona fide lapse.” 14.The acceptability of the said 'reason' was considered by the Tribunalin Annexure A/1 order dated 05.11.2019. The finding and reasoningare discernible from paragraphs-6 and 7, which are reproducedbelow:in Annexure A/1 order dated 05.11.2019. The finding and reasoningare discernible from paragraphs-6 and 7, which are reproducedbelow: “6. We have head the rival submissionsand perused the material on record. It isan undisputed fact the Assessee ispraying for recalling of the Tribunal'sorder dated 03.06.2010 for which theMiscellaneous Application has been filedby the Assessee on 09.09.2019 which isdelayed by 1924 days. The fact is thereis an inordinate delay in filing the presentMiscellaneous Application. We find thatapart from making a general statmetnthat on account of bona fide reasons oftransfer/retirement, no affidavit has beenfiled by the Assessee explaining thereasons for delay. We find that Hon'bleApex Court in the case of EshaBhattacharjee vs. Managing Committeeof Raghunathpur, Nafar Academy &Others, 2013 (5) CTC 547 has laid downthe principles involved and the approachneeded while considering the application of delay, the relevant portion is as under:“15. From the aforesaid authoritiesthe principles that can broadly beculled out are : ….................... of delay, the relevant portion is as under:“15. From the aforesaid authoritiesthe principles that can broadly beculled out are : ….................... vii) The concept of liberal approachhas to encapsule the conception ofreasonableness and it cannot beallowed a totally unfettered free play.viii) There is a distinction betweeninordinate delay and a delay of shortduration or few days, for to theformer doctrine of prejudice isattracted whereas to the latter it maynot be attracted. That apart, the firstone warrants strict approachwhereas the second alls for a liberaldelineation. ix) The conduct, behaviour andattitude of a party relating to itsinaction or negligence are relevantfactors to be taken intoconsideration. It is so as thefundamental principle is that thecourts are required to weigh thescale of balance of justice in respectof both parties and the said principlecannot be given a total go by in thename of liberal approach. x) If the explanation offered isconcocted or the grounds urged inteh application are fanciful, the courtsshould be vigilant not to expose theother side unnecessarily to face sucha litigation.” 7. In the present case, we find that the inordinate delay in filing theMiscellaneous Application has not beenexplained nor has explained thechronology of events pertaining to suchinordinate delay by way of affidavit. Inview of the aforesaid facts and afterrelying on the aforesaid decision ofHon'ble Apex Court, we are of the viewthat the inordinate delay cannot becondoned. We dismiss the MiscellaneousApplication of the assessee.” 15.Ongoing through the order passed by the Tribunal, we are quiteconvinced, that absolutely no tenable reason or explanation hasbeen offered by the Appellant/Assessee for condoning the inordinatedelay of '1924 days'; much less any satisfactory explanation. Thefinding was rendered by the Tribunal that the inordinate delay cannotbe condoned, led to dismissal of the MA for restoration of the appeal.It is quite relevant to note that the merit of the case was notconsidered by the Tribunal, as the MA for restoration of the appealcame to be dismissed for want of any satisfactory explanation ofdelay. The finding rendered by the Tribunal is well supported by thereasons; which is more evident from the course and conductpursued by the Assessee by approbating and reprobatingsimultaneously; initially by contending before the Tribunal (when MApreferred by the Revenue was allowed years ago in 2011) that theApex Court ruling in Electronics Corporation of India Limited(supra) was not applicable to their case and now seeking to placereliance on the same. convinced, that absolutely no tenable reason or explanation hasbeen offered by the Appellant/Assessee for condoning the inordinatedelay of '1924 days'; much less any satisfactory explanation. Thefinding was rendered by the Tribunal that the inordinate delay cannotbe condoned, led to dismissal of the MA for restoration of the appeal.It is quite relevant to note that the merit of the case was notconsidered by the Tribunal, as the MA for restoration of the appealcame to be dismissed for want of any satisfactory explanation ofdelay. The finding rendered by the Tribunal is well supported by thereasons; which is more evident from the course and conductpursued by the Assessee by approbating and reprobatingsimultaneously; initially by contending before the Tribunal (when MApreferred by the Revenue was allowed years ago in 2011) that theApex Court ruling in Electronics Corporation of India Limited(supra) was not applicable to their case and now seeking to placereliance on the same. Anu Anu 16.In the above facts and circumstances, we hold that Annexure A/1order dated 05.11.2019 passed by the Tribunal is well within the four-walls of the law. The appeal preferred by the Appellant/Assesseedoes not contain any 'question of law'; much less any 'SubstantialQuestion of Law' so as to call for interference under Section 260A ofthe Income Tax Act, 1961. Appeal fails. It is dismissed accordingly.order dated 05.11.2019 passed by the Tribunal is well within the four-walls of the law. The appeal preferred by the Appellant/Assesseedoes not contain any 'question of law'; much less any 'SubstantialQuestion of Law' so as to call for interference under Section 260A ofthe Income Tax Act, 1961. Appeal fails. It is dismissed accordingly. Sd/- Sd/- (P. R. Ramachandra Menon) (Parth Prateem Sahu) Chief JusticeJudge