Why would a CA advise assessee not to file appeal, ITAT refused to condone delay

Why would a CA dissuade an assessee from filing appeal / pursuing legal remedy granted to him under the statute – ITAT refused to condone the delay in filing appeal.

In a recent judgment, the ITAT Surat has refused to condone the delay in filing appeal on the ground that CA advised not to file appeal before ITAT observing that why would a CA dissuade an assessee from pursuing legal remedy granted to him under the statute?

ABCAUS Case Law Citation:
ABCAUS 4076 (2024) (06) ITAT

Important Case Laws relied upon:
Collector, Land Acquisition vs. Mst. Katiji & Ors (1987) 167 ITR 471 (SC)
K. Ramachandran vs State of Kerala & Anr. (1997) 7 SCC 556
Pundik Jalam Patil vs. Executive Engineers, Jalgaon Medium Project, (2008) 17 SCC 448
Basawaraj and Anr vs. Special Land Acquisition Officer, (2013) 14 SCC 81
Pathapati Subba Reddy (dies) By L. Rs. & Ors. vs the Special Deputy Collector (LA), SLP(C) No.31248 of 2018 (SC)

CA advise condone delay

In the instant case, the assessee had challenged the order passed by the CIT(A), National Faceless Appeal Centre (NFAC), in confirming disallowance of Interest expenses.

The Tribunal observed that there was a delay of 942 days. The assessee had filed an affidavit for condonation of delay in filing of appeal before the Tribunal. In the affidavit, it was stated that the appellant was 50 years old and the appellant has received the CIT(A)’s notice on E-mail Ids which were not in the appellant’s access and therefore he could not comply with the notices

He also contended that the order passed by the CIT(A was not known to the appellant. It was also submitted that notices came in period of Covid-19 pandemic and there was relaxation by the Hon’ble Apex Court.

It was further submitted that when the assessee received the recovery notice he informed to his tax consultant/Chartered Accountant who advised him not to file appeal before ITAT. Hence, the appellant’s mistake not to file appeal after recovery notice was not intentional. The assessee again went to another tax consultant and the new consultant advised him to file the appeal before ITAT for considering the merit of the case.

The assessee relied upon the judgment of the Hon’ble Supreme Court wherein it has been observed 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 being done because of a non-deliberate delay.

The Tribunal noted that there was a considerable delay of more than two and half years and  the simple explanation given that the appellant was that he did not receive the order because E-mail Id was not in his access which was not acceptable justification. Also, even after excluding the period of relaxation granted by the Hon’ble Supreme Court, there was still further delay in filing the appeal.

The Tribunal noted that appellant had stated that the E-mail Ids were not in his access but on Form 35, the appellant had given the same E-mail Id. Form 35 had been verified by assessee himself. Therefore, the appellant cannot take the plea that it was not in his access.

The Tribunal noted that the assessee had stated that his CA advised him not to file the appeal before the Tribunal. However, no supporting evidence in the form of confirmation letter or affidavit of CA was filed to substantiate his claim. The assessee himself had given the E-mail Id in his Form 35 and not given any evidences regarding the change in the E- mail ID to the Department.

Further, the Tribunal noted that in its later decisions, the Hon’ble Supreme Court had held that condonation of delay should not be granted only on the ground that ordinarily a litigant does not stand to benefit by lodging an appeal late.

The Tribunal further noted that Hon’ble Supreme Court in a recent judgment given in 2024 referred to and discussed its various decisions on the principles of condonation and also discussed the case relied upon by the assessee and held that the phrases “liberal approach”, “justice-oriented approach” and “cause of advancement of substantial justice” cannot be employed to defeat the law of limitation.

The Tribunal questioned the plea taken by the assessee and observed that why would a CA dissuade an assessee from pursuing legal remedy granted to him under the statute? Clearly, the appellant was grossly negligent, inactive and casual in filing of appeal. Such negligent, casual and lackadaisical approach to file appeal cannot constitute “sufficient cause” within the meaning of section 253(5) of the Act.

Accordingly, the Tribunal refused to condone the delay and dismissed the appeal. 

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