Skip to main content

Condonation of delay caused due to human error

Prashanth Projects Ltd vs. DCIT

Human interaction is influenced by human nature. Inherent in human nature is the likelihood of error. Therefore, the adage “to err is human”. Thus, the power to condone delay while applying the law of limitation. This power of condonation is only in view of human fallibility. The laws of nature are not subject to human error, thus beyond human correction. In fact, the Apex Court in State of Madhya Pradesh Vs. Pradip Kumar 2000(7) SCC 372 has observed to the effect that although the law assists the vigilant, an unintentional lapse on the part of the litigant would not normally close the doors of adjudication so as to be permanently closed, as it is human to err

Condonation of delay: An appeal wrongly filed before the AO and not CIT(A) is an unintentional lapse of the assessee. The AO ought to have returned the appeal to enable the assessee to take corrective steps. The likelihood of error is inherent in human nature The power of condonation is in view of human fallibility and must be exercised in cases of bona fide lapses
(i) It is an undisputed position that the appeal from order dated 31st December, 2007 of the Assessing Officer was prepared and filed in the prescribed Proforma viz. Form No.35. It was addressed to CIT(A). However, by mistake the same was tendered to the office of the Assessing Officer and the office of the Assessing Officer also accepted the same. In fact, as the appeal pertained to the CIT(A) and not its office, the Assessing Officer ought to have immediately returned the appeal which was filed in the office of the Assessing Officer. This would have enabled the appellant to take appropriate steps and file the appeal with the office of the CIT(A). It is not the case of the Revenue that the appeal addressed to the CIT(A) was not filed with the Office of the Assessing Officer on 8th February, 2008 i.e. within the period of limitation. In case, the Assessing Officer had returned the appeal immediately to the appellant or had forwarded it to the office of the CIT(A) as would be expected of the State no delay would have taken place. This would have resulted in the appeal being considered on merits. Further, from the application made for stay on 19th August, 2008 as well as from the order dated 12th November, 2008 passed thereon, it is very clear that the appellant as well as the department bonafide proceeded on the basis that its appeal before the CIT(A) is pending. The lapse on the part of the assessee was unintentional. Further, the analogy made in the impugned order with nature is inappropriate. Human interaction is influenced by human nature. Inherent in human nature is the likelihood of error. Therefore, the adage “to err is human”. Thus, the power to condone delay while applying the law of limitation. This power of condonation is only in view of human fallibility. The laws of nature are not subject to human error, thus beyond human correction. In fact, the Apex Court in State of Madhya Pradesh Vs. Pradip Kumar 2000(7) SCC 372 has observed to the effect that although the law assists the vigilant, an unintentional lapse on the part of the litigant would not normally close the doors of adjudication so as to be permanently closed, as it is human to err. In this case, we have found that it is an unintentional lapse on the part of the appellant. We are, therefore, of the view that the impugned order is not sustainable and the question as framed is answered in favour of the appellant assessee.

(ii) However, the appellant should have taken care to ensure that the appeal is correctly filed with the office of the CIT(A). Although, we are satisfied that there was a mistake / error on the part of appellant in filing it with the wrong office, the appellant has not been able to explain the delay between 23rd March, 2010 to 12th May, 2011 i.e. the period when it addressed a communication to the CIT(A) for hearing of its appeal till the date it requested the Assessing Officer to transfer the appeal to CIT(A). The explanation stated across the bar is that it was pursuing its appeal but no particulars are given. Therefore, although we set aside orders dated 4th September, 2013 of the Tribunal and 4th August, 2011 of the CIT(A) and restore the appeal to the file of the CIT(A) for fresh disposal in accordance with law, it is subject to the appellant paying all tax dues payable for the subject Assessment Year, if not already paid and additionally on payment of costs of Rs.10,000/by a pay order drawn in the name of “The Principal Commissioner of Income Tax15, Mumbai” within a period of four weeks from today.

Comments

Popular posts from this blog

MACT - Permanent disability - calculate - compensation - Supreme Court - Part 2

1) C. K. Subramonia Iyer vs. T. Kunhikuttan Nair - AIR 1970 SC 376 2) R. D. Hattangadi vs. Pest Control (India) Ltd. - 1995 (1) SCC 551 3) Baker vs. Willoughby - 1970 AC 467 4) Arvind Kumar Mishra v. New India Assurance Co.Ltd. - 2010(10) SCALE 298 5) Yadava Kumar v. D.M., National Insurance Co. Ltd. - 2010 (8) SCALE 567) 5. The heads under which compensation is awarded in personal injury cases are the following : Pecuniary damages (Special Damages) (i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising : (a) Loss of earning during the period of treatment; (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General Damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) Loss of ...

SARFAESI-Right of tenant/lessee - Supreme Court

Cited: 1)  M/s Trade Well, a Proprietorship Firm, Mumbai & Anr. v. Indian Bank & Anr. [2007 CRI. L.J. 2544]   2)  C.B. Gautam v. Union of India & Ors. [(1993) 1 SCC 78] 3)  ICICI Bank Ltd. v. SIDCO Leathers Ltd. & Ors. [(2006) 10 SCC 452] 4) D elhi High Court in Shri Sanjeev Bansal v. Oman International Bank SAOG & Anr. 131 (2006) DLT 729  5) Madras High Court in Sree Lakshmi Products v. State Bank of India (AIR 2007 Madras 148) 6)  Sunita Jugalkishore Gilda v. Ramalal Udhoji Tanna (dead) through LRs. & Ors. [(2013) 10 SCC 258], Supreme Court 7)  Central Bank of India v. State of Kerala and Others [(2009) 4 SCC 94], Supreme Court  8) Authorised Officer, Indian Overseas Bank and Another v. Ashok Saw Mill [(2009) 8 SCC 366] , Supreme Court 9) United Bank of India v. Satyawati Tondon & Others [(2010) 8 SCC 110] , Supreme Court   10)  Oriental Bank of Commerce in Civil Appeal arising out of S.L.P. (C) ...

An order of attachment before judgment ends if a suit is dismissed

An order of attachment before judgment passed under Order XXXVIII Rule 5 of the Code will not survive the dismissal of a suit and it ends when the suit is dismissed after trial. Contents 1 (i) Whether an order of attachment before judgment under Order XXXVIII Rule 5 of the Code of Civil Procedure, 1908 (“the Code”, for short) made in a suit for recovery of money will survive the dismissal of the suit on merits? 2 (ii) If the appellate court reverses the decree of the trial court and allows the suit claim, will it result in an automatic revival of the order of attachment before judgment? 3 (iii) Whether the ratio in the decision by Full Bench in Thampi Muhammad Abdul Kadir v. Padmanabha Pillai Parameswaran Pillai (1952 KLT 264) holds good in view of the change in the precedential law and insertion of Order XXXVIII Rule 11A to the Code? 3.1 “11A. Provisions applicable to attachment.- 3.2 “57. Determination of attachment.- 3.3 Arumuhom Ammal v. Nayanar Panicker (1962 KLT 264) 3.4...