Income-Tax Officer, ... v. Agra Public Educatio...

Bhavnesh Saini, J.M:— This appeal by the Revenue is directed against the order of ld. CIT(A)-II, Agra dated 17.03.2010 on the following effective ground of appeal:

“1. That the CIT(A)-II, Agra has erred in law and on the facts of the case in allowing the depreciation u/s. 32 of the Income Tax Act, 1961 without appreciating the facts on records that the assessee has not claimed the depreciation in the return of income for A.Y 2006-2007.”

2. The departmental appeal is filed in the office of the Tribunal on 02.07.2012 Thus, it was found that the departmental appeal is time barred by 735 days. The department filed two applications for condonation of delay dated 02.07.2012 and 26.11.2012

3. The ld. Representatives of both the parties have been heard on the point of condonation of delay only.

4. Briefly stated, the facts of the case are that the Revenue earlier filed appeal before the Tribunal in ITA No. 313.Agra/2010 for the same assessment year 2006-2007 against the same impugned order dated 17.03.2010 The appeal of the Revenue was dismissed being defective vide order dated 28.06.2011 by the Tribunal. The Tribunal found that the appeal was filed by the department, challenging the order of the ld. CIT(A) in deleting the additions by holding that the assessee-society is educational institution as provided u/s. 10(23C)(iiiad) of the IT Act. However, the ld. Commissioner has authorized the Assessing Officer to file the departmental appeal in order to challenge his order in allowing the depreciation u/s. 32 of the IT Act. Since the AO filed the appeal on a different grounds, which was not authorized by the ld. Commissioner, therefore, the appeal of the department was found defective and the same was dismissed with liberty to department, if so desired, to file an appeal as per authorization given by the ld. CIT-I, Agra. The Tribunal passed this order on dated 28.06.2011 in ITA No. 313.Agra/2010. The Revenue department instead of filing the fresh appeal, preferred to move miscellaneous application No. 01.Agra/2012 for recalling of the earlier order of the Tribunal dated 28.06.2011, which was also dismissed vide order dated 16.03.2012 because the M.A of the Revenue was not maintainable because instead of filing miscellaneous application, the revenue should have filed the fresh appeal as was earlier observed by the Tribunal. In the background of these facts, the Revenue preferred the present fresh appeal and prayed that the delay in filing the appeal may be condoned.

5. The ld. DR submitted that sequence of events may be considered and delay in filing the appeal may be condoned. On the other hand, the ld. Counsel for the assessee submitted that the Revenue was gross negligent in moving the miscellaneous application and remained silent for taking proper steps in the matter and no valid explanation has been given for delay in filing of appeal beyond the period of limitation.

6. We have considered rival submissions and gone through the earlier orders of the Tribunal and the facts contained in the applications for condonation of delay. Hon'ble Supreme Court recently in the case of Office of the Chief Post Master General v. Living Media India Ltd., 348 ITR 7 (SC) considered the delay in filing the petitions before the Supreme Court by the Government Departments. In this case, the Postal Department preferred the appeals to the Hon'ble Supreme Court by way of special leave with delay of 427 days with application for condonation of delay in filing the petition for special leave. Hon'ble Supreme Court considering the issue in the light of several decisions, dismissed the appeal on the ground of delay. It was held-

“Held, dismissing the applications, the Department had itself mentioned in its affidavit and was aware of the date of the judgment of the Division Bench of the High Court as September 11, 2009. Even, according to the deponent, its counsel had applied for the certified copy of the judgment only on January 8, 2010 and the copy was received by the Department on the very same day. There was no explanation for not applying for certified copy of the judgment on September 11, 2009, or at least within a reasonable time. The fact remains that the certified copy was applied for only on January 8, 2010, i.e, after a period of nearly four months. Neither the Department nor the person in-charge had filed an explanation for not applying for the certified copy within the prescribed period. The other dates mentioned in the affidavit clearly showed that there was delay at every stage and there was no explanation as to why such delay had occasioned. The department or the person concerned had not evinced diligence in prosecuting the matter to the court by taking appropriate steps. The persons concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in the Supreme Court. In the absence of plausible and acceptable explanation, the delay could not be condoned mechanically merely because the Government or a wing of the Government was a party before the court. Though in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fide, a liberal concession had to be adopted to advance substantial justice, in the facts and circumstances, the claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes could not be accepted in view of the modern technologies being used and available. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, the Department had failed to give acceptable and cogent reasons sufficient to condone such a huge delay.

BY THE COURT: Unless government bodies, their agencies and instrumentalities have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months or years due to considerable degree of procedural red-tape in the process. Government Departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for Government Departments. The law shelters every-one under the same light and should not be swirled for the benefit of a few. The law of limitation binds everybody including the Government.”

6.1 Considering the facts of the case in the light of above principles laid down by Hon'ble Supreme Court in the above case, we do not find any justification to condone the delay in filing the departmental appeal beyond the period of limitation. Earlier, the Revenue challenged the impugned order in ITA No. 313.Agra/2010 before the Tribunal and instead of raising proper grounds of appeals as authorized by the Commissioner, the departmental appeal was filed on different grounds of appeals. The departmental appeal was dismissed. However, liberty was given to file the appeal as per authorization given by the Commissioner, if so desired. This order was passed by the Tribunal on 28.06.2011 It is, therefore, clear that the AO was most negligent in filing the improper appeal before the Tribunal. The department instead of filing fresh appeal immediately after the order dated 28.06.2011, filed M.A No. 01/2012, which was also dismissed by the Tribunal finding no mistake apparent on record vide order dated 16.03.2012 Again the department was most negligent in not taking proper steps as per earlier order dated 28.06.2011 Despite final order passed in M.A on 16.03.2012, no steps have been taken by the Revenue department to file the departmental appeal immediately in the office of the Tribunal. The departmental appeal is only preferred on 02.07.2012 and no valid explanation of delay has been given from 16.03.2012 to 02.07.2012 Even in the applications for condonation of delay, no explanations have been given as to why the department remained negligent in not filing the departmental appeal immediately after the order of the Tribunal dated 16.03.2012 In the absence of any explanation, we are not inclined to condone the delay in filing the departmental appeal before the Tribunal. At the most, the department could contend that there was some explanation for condonation of delay when the appeal of the department was dismissed considering to be defective on passing the order on 28.06.2011 Further, from 28.06.2011 onwards, no explanation has been giving seeking condonation of delay. It is well settled law that the delay can be condoned only for sufficient and good reasons supported by cogent and proper evidence. It a settled principle of law that the provisions relating to the specified period of limitation must be applied with their rigor and effective consequences. However, in the present case, the Revenue department has not been able to give any sufficient good reasons seeking condonation of delay in the matter. We, therefore, hold that the Revenue has failed to explain that the delay in filing the appeal was due to sufficient cause. The departmental appeal is accordingly dismissed in limine on the ground of delay.

7. In the result, the departmental appeal is dismissed in limine.