M.G. Saraf vs Joint Commissioner of Income Tax

The Notice of Motion No. 2635 of 2011 in Income Tax Appeal (L) No. 1119 of 2011 has been taken out by a HUF, for seeking condonation of delay of 2745 days in filing an appeal from the order of dated 11th October, 2004 of the Income Tax Appellate Tribunal (Tribunal) in respect of Assessment Year 1997-98.

The Notice of Motion No. 2636 of 2011 in Income Tax Appeal (L) No. 1120 of 2011 has been taken out by an individual, seeking condonation of delay of 2286 in filing an appeal from the order dated 30th December, 2004 of the Income Tax Appellate Tribunal (Tribunal) in respect of Assessment Year 1997-98.

We find that the affidavits in support of both the Notices of Motion have been filed by the same Constituted Attorney and are identically worded, save and except, number of days of delay sought to be condoned. The impugned order of Tribunal was passed in the year 2004. The present Appeals and the Notice of Motions have been filed in 2011. The reasons set out in the affidavits for the delay is that the Appellant was under the erroneous impression that not having agitated an issue before the Tribunal, it was not entitled to agitate the issue thereafter before this Court. Therefore, no appeal was filed. It states that Appellant has now been advised that an appeal should be filed so that all aspects of the matter relating to the true character of the payment in the hands of the Appellant are before this Court in the context of the character of the expenditure in the hands of M/s. Saraf Chemicals Pvt. Ltd. (the Company). It is stated that in the hands of the Company, this expenditure is treated as capital, while the receipts in the hands of the Applicant is treated as revenue. It is submitted that the delay in filing the Appeals was caused due to the mistaken/erroneous impression of the Appellant that not having agitated the issue before the Tribunal, it was not entitled to agitate the said issue, thereafter. The affidavits state that it has now received advise that an appeal should be filed by the Appellants for uniform and consistent view in the nature of expenditure in the hands of the Company and receipts in the hands of Appellants.

We find the affidavits in support are bereft of any particulars, save and except that they have been now advised to file an Appeal to this Court to be considered along with the Appeal filed by the Company. The affidavits do not indicate the date when the advise was given, nor who advised, nor the circumstances in which the advise was given. It is settled position of law that application for condonation of delay should have sound and cogent reasons for explaining the delay with particulars which caused the delay. We find that the affidavits in support have not set out particulars which resulted in the delay.

We find no reason to condone the delay sought by the applicants in both the Notices of Motion.

Accordingly, both the Motions are dismissed. Appeals also stand disposed of.