Guidelines for condonation of delay in appeal filing by Supreme Court and Calcutta High Court. In a recent judgment ITAT Kolkata has condoned delay of 471 days following following these guidelines.
ABCAUS Case Law Citation:
ABCAUS 1175 (2017) (03) ITAT
Assessment Year : 2010-11
Date/Month of Pronouncement: March, 2017
Important Case Laws Cited/relied upon:
Collector Land Acquisition vs Katiji & Others
Indian Oil Corporation Limited vs CEGAT & Others
Contentions of the Appellant assessee:
The assessee had contended that he was a senior citizen aged about 65 years and was suffering form multiple medical ailments since several years. The assessee had been advised bed rest. It was submitted that the spouse of the assessee was also suffering from psychiatric disorder from past several years and is under heavy medication. Thus due to the above facts the assessee was mostly confined to his home.
Observations made by the Tribunal:
The Tribunal after going through the reasons stated in the condonation petition together with its evidences comprising of various medical reports of assessee and his wife observed that the assessee was prevented from looking after his affairs much less taxation affairs. The ITAT felt that the assessee was genuinely prevented from preferring the appeal in time.
The Tribunal referred to a recent judgment of the Coordinate Bench which observed that the Hon’ble Supreme Court and the Hon’ble Calcutta High Court have laid down the following guidelines for evaluating the applications for condonation of such delay:
Guidelines laid down by the Hon’ble Supreme Court
“The legislature has conferred the power to condone delay by enacting Section 51 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on ‘merits’. The expression “sufficient cause” employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice -that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-
“Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period”.
- Ordinarily a litigant does not stand to benefit by lodging an appeal late.
- Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
- “Every day’s delay must be explained” does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s delay? The doctrine must be applied in a rational common sense pragmatic manner.
- 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 being done because of a non-deliberate delay.
- There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
Guidelines laid down by the Hon’ble Calcutta High Court
“11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim ‘interest reipublicae up sit finislitium’ (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. This Court has held that the words “sufficient cause” under Section 5 of the Limitation Act should receive a liberal constitution so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari and State of W.B. v. Administrator, Howrah Municipality.
13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline hat when courts condone the delay due to latches on the part of the applicant, the Court shall compensate the opposite party for his loss”.
The ITAT found that there was also nothing on record to show that such delay was occasioned deliberately or on account of culpable negligence or on account of malafide. There was also nothing to show that the assessee had resorted to dilatory tactics. Keeping in view all these facts of this case and the guidelines laid down by the Hon’ble Supreme court and Hon’ble Calcutta High Court and appreciating the facts and circumstances of the case, the Tribunal condoned the delay of 471 days and admitted the appeal for adjudication.