High Court Of Gauhati
CIT vs. Williamson Tea (Assam) Ltd.
Assessment Year : 2002-03
Section : 260A
Amitava Roy And K. Meruno, JJ.
M.C. No. 1029 Of 2009
May 27, 2011
JUDGMENT
Amitava Roy, J. – The miscellaneous cases have been registered on applications filed under section 5 of the Limitation Act, 1963, (for short hereafter referred to as “the Limitation Act”) seeking condonation of delay of 290/287 days in filing the accompanying appeals. These applications, at the first instance, were rejected by the order dated October 28, 2009, of another Division Bench of this court sustaining the objection raised on behalf of the opposite party that the prayer for condonation of delay under section 5 of the Act, 1963, in filing the aforementioned appeals under section 260A of the Income-tax Act, 1961 (for short also referred to as “the Act”) was untenable in law, there being no provision therefor. Placing reliance on the decision of the hon’ble apex court, rendered in CC & CE v. Hongo India (P.) Ltd. [2009] 315 ITR 449, the applications were rejected considering the then state of section 260A of the Act.
2. The Revenue took the matter to the hon’ble apex court and, by its order dated January 24, 2011, passed in petition(s) for Special Leave to Appeal (Civil) No. 2611 of 2011, the order impugned was interfered within face of an amendment, vide Finance Act No. 14 of 2010 in section 260A of the Act. Thereby, this issue has been remitted to this court for a fresh disposal on the merits on a scrutiny of the cause offered by the applicants for condonation of delay.
3. We have heard Mr. U. Bhuyan, senior advocate assisted by Mr. B Chakraborty, advocate for the applicant and Dr. A. K. Saraf, senior advocate assisted by Ms. N. Hawelia, advocate, for the opposite party.
4. The factual background in both the miscellaneous cases is identical and the grounds enumerated seeking condonation of delay, are also same. The pleaded stand of the party logically is also common in both the miscellaneous cases. It would thus suffice to record the versions of the parties as available in the pleadings of M. C. No. 1029 of 2009.
5. According to the applicant, the certified/authenticated copies of the orders dated August 31, 2007, passed by the Income-tax Appellate Tribunal, Guwahati Bench, Guwahati, rendered in I. T. A. No. 44 (Gauhati) of 2004 and I. T. A. No. 51 (Gauhati) of 2004 for the assessment year 2000-01 (in M. C. No. 1029) and in I. T. A. No. 7 (Gauhati) of 2001 and CO No. 7 (Gauhati) of 2006 for the assessment year of 1996-97 (in M. C. No. 1654 of 2009 were received by the office of the Commissioner of Income-tax, Guwahati-II on September 20, 2007, and September 24, 2007, respectively. On receipt thereof, a tentative view was taken to file an appeal against the same. The Assessing Officer was directed to forward all relevant documents with his comments through the office of the Additional Commissioner of Income-tax, Range-3, Guwahati, which was received by him (Assessing Officer) on October 9, 2007. It was averred that the Assessing Officer, meanwhile, got seriously preoccupied in the work for “completing 99 time barring assessments arising out of search and seizure cases by December 31, 2007”. As the exercise was voluminous and complex in nature, there was a considerable delay in processing the same, the situation being compounded by acute shortage of staff in the office of the Assessing Officer. As the situation was beyond his control, the Assessing Officer, eventually, dispatched the relevant documents for filing the appeals as contemplated to the office of the Commissioner of Income-tax, Guwahati-II (for short referred to as “the applicant”), which was received by him on January 11, 2008. The applicant has stated that immediately, thereafter, his office wrote to the standing counsel of the Department on the same date seeking his opinion regarding the advisability of filing an appeal under section 260A of the Act. The advice was sought in this regard vis-a-vis five years of the Tribunal order relating to the assessment years, i.e., 1996-97, 1997-98, 1998-99, 2000-01 and 2002-03. According to the applicant-Revenue, the learned standing counsel, though submitted his opinion January 16, 2008, it was qua the assessment years 2002-03 only. This when detected, the office of the applicant reverted to the standing counsel on January 22, 2008, seeking his opinion for the other assessment years and the latter by his letter dated January 25, 2008, communicated that his earlier opinion be taken to be also for the other assessment years. On receipt of this letter on January 29, 2008, the approval of the Chief Commissioner of Income-tax, Guwahati, was sought for and the same having been received on January 30, 2008, all relevant papers and documents were forwarded to the learned standing counsel on January 30, 2008, and the same were received by the latter on February 1, 2008. The applicant has asserted on solemn affirmation that subsequent thereto, details of the authorized officers were furnished to the learned standing counsel on February 6, 2008, whereafter, additional instructions were provided to him on February 26, 2008, and March 24, 2008. Meanwhile, admittedly, the period of limitation for filing the related appeal had expired on January 22, 2008.
6. The application discloses that thereafter, the learned standing counsel due to a series of personal difficulties, as detailed therein, could not attend to his professional engagements regularly. His mother suffered a stroke resulting in her hospitalization and that thereafter the long vacation of this court intervened. According to the applicant, the mother-in-law of the learned standing counsel met with an accident on October 22, 2008, requiring her hospitalization and surgery. The applications were, eventually, filed on November 3, 2008. In the meantime, a delay of 290/287 days had occurred. Contending that, in the facts and circumstances of the case, it had not been guilty of willful laches or intentional lapses in approaching this court with the appeals, condonation of the aforementioned delay has been prayed for indicating as well that as substantial revenue is involved, rejection of the appeal without adjudicating the same on the merits would result in serious prejudice and loss to the Revenue.
7. In its affidavit-in-opposition, the opposite party (filed before the initial disposal of the miscellaneous cases on October 29, 2010), apart from contending against the maintainability of the application, has insistently asserted that the reasons cited do not disclose any sufficient cause for condoning the delay that had occurred. It has been strenuously averred that the applicant from the very beginning had adopted a cavalier attitude as would be evident from greater importance ascribed to the assessment proceedings than to the appeals proposed to be filed. While, generally denying the correctness of all the averments bearing on the explanation for the delay, the opposite party has maintained that the applicant being demonstratively guilty of willful laches and inaction, the Revenue is not entitled to the equitable relief as prayed for.
8 Mr. Bhuyan has argued that in the face of the progression of events, as narrated in the application, the applicant can by no means be charged of being deliberately indifferent, negligent or callous and, thus, instrumental for the delay and that as the grounds offered constitute sufficient cause in law, it is a fit case in which the same (delay) ought to be condoned. Underlining the indispensability of official formalities and bureaucratic compulsions as unavoidable impediments in furthering such process at the required levels, the learned standing counsel, the Revenue contended that a liberal approach ought to be adopted by the courts, lest meritorious matters as these be summarily jettisoned at the threshold to the prejudice of greater public interest. In support of his submission, Mr. Bhuyan has placed reliance on the decision in Collector, Land Acquisition v. Mst. Katiji [1987] 167 ITR 471 (SC) and in State of Haryana v. Chandra Mani, AIR 1996 SC 1623.
9. As against this, Dr. Saraf assiduously urged that as would be apparent from the disclosures made in the application, the applicant had been consistently incautious in the matter of filing the appeals, presented belatedly. The fact that the Assessing Officer did not forward the necessary documents for preferring the appeals for long three months being purportedly engaged in other official works unassailably testify to this effect, he urged. The learned senior counsel contended that the ground of providing a series of instructions is not only vague but also is unconvincing. Though Dr. Saraf, in his usual fairness did not dispute the correctness of the facts bearing on the personal difficulties of the learned counsel for the Revenue, he emphasised on want of bona fide of the Revenue and its deliberate negligence disentitling it to the grant of such discretionary relief. Dr. Saraf to reinforce his arguments placed reliance on the decision of the apex court in Balwant Singh (Dead.) v. Jagdish Singh [2010] 8 SCC 685 and of this court in State of Manipur v. All Manipur Regular Post Vacancies Substitute Teacher’s Association [1995] 2 GLR 102 and in Indian Oil Corporation Ltd. v. Subrata Borah Chowlek [2010] 3 GLR 312.
10. We have extended our thoughtful consideration to the rival projections. Before adverting to the facts, it would be appropriate to recapitulate the law as adumbrated by the judicial pronouncements cited at the Bar.
11. In Mst. Katiji (supra), the apex court enunciated that the expression “sufficient cause” employed by the Legislature is adequately elastic to enable the courts to apply the law in a meaningful manner to subserve the ends of justice that being the life-purpose for the existence of the institution of courts. Their Lordships observed that such a liberal approach is justified, amongst others, on the consideration that refusal to condone the delay can result in a meritorious matter being thrown out at the very threshold and the cause of justice being defeated. It was propounded that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice done because of a non-deliberate delay. Their Lordships underlined that there is no presumption that delay is occasioned deliberately, or on account of culpable negligence or on account of mala fide and that a litigant does not stand to benefit by resorting to delay but to the contrary runs a serious risk. It was held in particular in the context of delay vis-a-vis the State that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve and, thus, certain amount of latitude is not impermissible. Noting that the State represents the collective cause of the community, their Lordships observed that if the appeals brought by the State are lost for such default, which is generally in view of its officers/agencies as well as the encumbered process of pushing the files from table to table, no person is individually affected but public interest is a casualty.
12. The above view was reiterated in Chandra Mani (supra) to propound that the expression “sufficient cause” should, therefore, be considered with pragmatism in justice-oriented approach rather than to warrant explanation for every day’s delay. Their Lordships ruled that the factors which are peculiar to and characteristic of the functioning of the Governmental institutions would require adoption of pragmatic approach and that the courts should decide the matters on the merits unless the case is hopelessly bereft thereof.
13. In Balwant Singh (Dead.) (supra), the apex court was in seisin of a prayer for condonation of delay of 778 days in bringing the legal heirs of the appellant on record in the appeal before it. The facts thereof disclosed that the application therefor was of one page wherein, the applicants contended that they were not aware of the pendency of the appeal earlier and that they had come to know of it only in the month of March, 2010, whereafter, the application was filed on April 15, 2010. Their Lordships noticed contradictions in the stand taken to explain the delay and concluded that the applicants had acted irresponsibly and with negligence and, thus, there was an ex facie lack of bona fide. It was held that the conduct of the legal representatives of the sole deceased evinced that they had acted with callousness and that they had not even stated true facts, which made the exercise of discretionary power in their favour difficult. It was in that factual context, that the apex court on an exhaustive survey of its earlier decisions on the issue declined to condone the delay. While emphasizing that the expression “sufficient cause”, implies the presence of legal and adequate reasons to advance substantial justice, which presupposes no negligence or inaction on the part of the applicant, it was enunciated that the word “sufficient” signified adequacy to answer the purpose intended. Their Lordships were of the view that the sufficient cause should be such as it would persuade the court, in the exercise of its judicial discretion, to treat the delay as an excusable one. In conclusion, while culling out the quintessentials of the law applicable, their Lordships reiterated that the word “sufficient cause” should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts, circumstances and the type of the case. That these words ought to receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fide, deliberate inaction or negligence on the part of the applicant, was reemphasized. That the decisive factor in condonation of delay is not its length but the sufficiency of a satisfactory explanation was indicated in clear terms. It was held that the extent and degree of leniency to be shown by a court would depend on the nature of the application and facts and circumstances of the case.
14. In All Manipur Regular Post Vacancies Substitute Teacher’s Association (supra), the delay involved was about 1 year 11 months and the explanation centered around developments suggesting lack of co-ordination and consistence in views at different institutional levels ensuing in the late filing of the appeal. A Division Bench of this court on a survey of the authorities laid before it, including the decision in Mst. Katiji (supra), affirmed that in assessing sufficient cause, factors which are peculiar to and characteristic of the functioning of the Government ought not to be excluded from consideration. It was observed that Government decisions are proverbially slow, encumbered as they are by a considerable degree of procedural red-tape in the process of their making and thus a certain amount of leeway is permissible. The necessity, however, of proving a sufficient cause was underlined adding that a liberal approach is essential to advance substantial justice where no gross negligence or deliberate inaction or lack of bona fide is imputable to the party seeking the relief. It was noticed in the contextual facts that the applicant had not made any attempt to disclose why during the period prescribed, the appeal could not be preferred. The applications for condonation of delay were, thus, rejected in the above factual premise.
15. In Indian Oil Corporation Ltd. (supra), the delay involved was of 59 days and the explanations furnished revealed, amongst others, that not only the applicant whiled away time at various intervening stages even after the expiry of the period of limitation, they waited for the summer vacation of the hon’ble Supreme Court of India and the Delhi High Court to be over to have the matter attended to by their learned counsel from whom a second opinion was solicited. The following observations were made in the above factual background to reject the prayer for condonation of delay :
“13. Condonation of delay, it is no longer res integra, is not a matter of right, the essential pre-condonation whereof is a sufficient cause satisfactorily explaining the same. There is no strait jacket formula to adjudge a sufficient cause, an appraisal whereof has to be logically individualistic contingent on the attendant facts and circumstances. By no means, if sufficient cause in wanting, delay can be condoned merely on equitable or sympathetic considerations. Though a liberal approach in analysing the cause is generally adopted, it cannot displace the imperative essentiality of a convincing and rational explanation to avail of the discretionary relief.”
16. The primary legal precepts invocable for assessing an explanation to be sufficient or not vis-a-vis a prayer for condonation of delay are thus no longer res integra. The cause offered has to be essentially analysed in the facts of each case and cannot be cast in a rigid mould incapable of any transigence. An explanation is a must, though, in scrutinizing the same a liberal approach has been consistently permitted so as to ensure that an otherwise genuine cause of justice is not defeated by adherence to technical precedence. Condonation of delay, though an equitable relief, however, cannot be accorded merely on sympathy or compassion and the grounds offered have to be evaluated to test whether the party in default had been guilty of conscious and deliberate inaction, culpable negligence and inexcusable indifference to the period of limitation mandatorily prescribed by law.
17. Reverting to the facts except for the time consumed by the assessing authority in completing the assessment in 99 cases, which was in the process of getting time barred on December 31, 2007, the Revenue, having regard to the steps taken from time to time, cannot be criticized of being either sluggish, indifferent or causal in its approach to the requirement of filing the accompanying appeals. The last date thereof being January 22, 2008, the Assessing Officer might have diverted his attention to the assessment cases, which were to get time barred prior thereto, i.e., December 31, 2007. There is no overwhelming material on record to negate the correctness or authenticity of this averment as well as of the acute shortage of the staff in his office adding to the delay in processing the exercise undertaken. The response of the Assessing Officer in forwarding the relevant papers and documents noticeably had been on January 11, 2008, i.e., before the expiry of the period of limitation. The clarification sought for from the learned standing counsel as to his opinion rendered with regard to the assessment year 2002-03, also cannot be repudiated as unwarranted. Merely because instructions were provided to the learned standing counsel by the Revenue on more than one occasion, the same is not demonstrative of unnecessary wastage of time by it. More so, there is nothing to the contrary to even infer the same. The personal problems plaguing the learned standing counsel, as referred to hereinabove, have not been controverted by the opposite party so as to discard the same as untrue. The preparation of the appeals, all these notwithstanding and the filing thereof within a reasonable time of the subsidence of the learned standing counsel unforeseen tribulations persuades us to conclude that the causes enumerated to explain the delay ought to be construed as sufficient. To reiterate, the Revenue in the facts and circumstances of the case, cannot be held guilty of any deliberate inaction, negligence, indifference or a detached attitude vis-a-vis the appeals, so as to penalize it with rejection of its prayer for condonation of delay.
18. On a totality of the considerations hereinabove, we are, thus, of the unhesitant opinion that the applications have considerable merit and ought to succeed. Ordered accordingly. The delay of 290/287 days in preferring the accompanying appeals is hereby condoned. The miscellaneous cases are allowed.
[Citation : 346 ITR 328]
