MC 1029/2009 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY THE HON’BLE MR. JUSTICE K MERUNO Judgment and Order (CAV) AMITAVA ROY , J The miscellaneous cases have been registered on applications filed under section 5 of the Limitation Act, 1963 (for short hereafter referred to as the Limitatio n Act) seeking condonation of delay of 290/287 days in filing the accompanying a ppeals. These applications, at the first instance, were rejected by the order da ted 28.10.2009 of another Division Bench of this Court sustaining the objection raised on behalf of the opposite party that the prayer for condonation of delay under section 5 of the Act, 1963, in filing the aforementioned appeals under sec tion 260 A of the Income Tax Act, 1961 (for short also referred to as the Act) w as untenable in law, there being no provision therefor. Placing reliance on the decision of the Hon’ble Apex Court, rendered in Commissioner of Customs and Cent ral Excise Vs. Hongo India (P) Ltd. and Anr., [2009] 315 ITR 449, the applicatio ns were rejected considering the then state of section 260 A of the Act. 02. The Revenue took the matter to the Hon’ble Apex Court and, by it s order dated 24.01.2001, passed in Petition(s) for Special Leave to Appeal (Civ il) 2611/2011, the order impugned was interfered with in face of an amendment, v ide Finance Act No. 14/2010 in section 260 A of the Act. Thereby, this issue has been remitted to this Court for a fresh disposal on merit on a scrutiny of the cause offered by the applicants for condonation of delay. 03. We have heard Mr. U Bhuyan, Senior Advocate assisted by Mr. B Ch akraborty, Advocate for the applicant and Dr. AK Saraf, Senior Advocate assisted by Ms. N Hawelia, Advocate for the opposite party. 04. The factual background in both the miscellaneous cases is identi cal and the grounds enumerated seeking condonation of delay, are also same. The pleaded stand of the party logically is also common in both the miscellaneous ca ses. It would thus suffice to record the versions of the parties as available in the pleadings of MC No. 1029/1009. 05. According to the Applicant, the certified/authenticated copies o f the orders dated 31.08.2007, passed by the Income Tax Appellate Tribunal, Guwa hati Bench, Guwahati, rendered in ITA No. 44 (Gau)/2004 and ITA No. 51 (Gau)/200 4for the assessment year 2000-01 (in MC No. 1029) and in ITA No. 7(Gau)/2001 and CO No. 7(Gau)/2006 for the assessment year of 1996-1997 (in MC No. 1654/2009 we re received by the office of the Commissioner, Income Tax, Guwahati-II on 20.09. 2007 and 24.09.2007 respectively. On receipt thereof, a tentative view was taken to file an appeal against the same. The Assessing Officer was directed to forwa rd all relevant documents with his comments through the office of the Addl. Comm issioner, Income Tax, Range-3, Guwahati, which was received by him (Assessing Of ficer) on 09.10.2007. It was averred that the Assessing Officer, meanwhile, got seriously preoccupied in the work for completing 99 time barring assessments ar ising out of search and seizure cases by 31.12.2007 . As the exercise was volumi nous and complex in nature, there was a considerable delay in processing the sam e, the situation being compounded by acute shortage of staff in the office of th e Assessing Officer. As the situation was beyond his control, the Assessing Offi cer, eventually, dispatched the relevant documents for filing the appeals as con templated to the office of the Commissioner of Income Tax, Guwahati-II (for shor t referred to as the Applicant), which was received by him on 11.01.2008. The Ap plicant has stated that immediately, thereafter, his office wrote to the Standin g Counsel of the Department on the same date seeking his opinion regarding the a dvisability of filing an appeal under section 260 A of the Act. The advice was s ought in this regard vis-a-vis five years of the tribunal relating to assessment years i.e., 1996-97, 1997-98, 1998-99, 2000-2001 and 2002-2003. According to th e Applicant/Revenue, the learned Standing Counsel, though submitted his opinion 16.01.2008, it was qua the assessment years 2002-03 only. This when detected, th e office of the Applicant reverted to the Standing Counsel on 22.01.2008, seekin g his opinion for the other assessment years and the latter by his letter dated 25.01.2008 communicated that his earlier opinion be taken to be also for the oth er assessment years. On receipt of this letter on 29.01.2008, the approval of Ch ief Commissioner of Income Tax, Guwahati was sought for and the same having been received on 30.01.2008, all relevant papers and documents were forwarded to the learned Standing Counsel on 30.01.2008 and the same were received by the latter on 01.02.2008. The Applicant has asserted on solemn affirmation that subsequent thereto, details of the authorized officers were furnished to the learned Stand ing Counsel on 06.02.2008, whereafter, additional instructions were provided to him on 26.02.2008 and 24.03.2008. Meanwhile, admittedly, the period of limitatio n for filing the related appeal had expired on 22.01.2008. 06. The application discloses that thereafter, the learned Standing Counsel due to a series of personal difficulties, as detailed therein, could not attain to his professional engagements regularly. His mother suffered a stroke resulting in her hospitalization and that thereafter the long vacation of this C ourt intervened. According to the Applicant, the mother-in-law of the learned St anding Counsel met with an accident on 22.10.2008, requiring her hospitalization and surgery. The applications were, eventually, filed on 03.11.2008. In the mea ntime, a delay of 290/287 days had occurred. Contending that, in the facts and c ircumstances of the case, it had not been guilty of wilful laches or intentional lapses in approaching this Court with the appeals, condonation of the aforement ioned delay has been prayed for indicating as well that as substantial revenue i s involved, rejection of the appeal without adjudicating the same on merits woul d result in serious prejudice and loss to the Revenue. 07. In its affidavit-in-opposition, the opposite party (filed before the initial disposal of the miscellaneous cases on 29.10.2010), apart from cont ending against the maintainability of the application, has insistently asserted that the reasons cited do not disclose any sufficient cause for condoning the de lay that had occurred. It has been strenuously averred that the Applicant from t he very beginning had adopted a cavalier attitude as would be evident from great er importance ascribed to the assessment proceedings than to the appeals propose d to be filed. While, generally denying the correctness of all the averments bea ring on the explanation for the delay, the opposite party has maintained that th e applicant being demonstratively guilty of wilful laches and inaction, the Reve nue is not entitled to the equitable relief as prayed for. 08. Mr. Bhuyan, has argued that in the face of the progression of ev ents, as narrated in the application, the applicant can by no means be charged o f being deliberately indifferent, negligent or callous and, thus, instrumental f or the delay and that as the grounds offered constitute sufficient cause in law, it is a fit case in which the same (delay) ought to be condoned. Underlining th e indispensibility of official formalities and bureaucratic compulsions as unavo idable impediments in furthering such process at the required levels, the learne d Standing Counsel, Revenue contended that a liberal approach ought to be adopte d by the courts, lest meritorious matters as these be summarily jettisoned at th e threshold to the prejudice of greater public interest. In support of his submi ssion, Mr. Bhuyan has placed reliance on the decision in COLLECTOR, LAND ACQUISI TION, ANANTNAG & ANR. VS. MST. KATIJI & ORS., 167 ITR 471 and in State of Haryan a Vs. Chandra Mani & Ors., AIR 1996 SC 1623. 09. As against this, Dr. Saraf assiduously urged that as would be ap parent from the disclosures made in the application, the Applicant had been cons istently incautious in the matter of filing the appeals, presented belatedly. Th e fact that the Assessing Officer did not forward the necessary documents for pr eferring the appeals for long three months being purportedly engaged in other of ficial works unassailably testify to this effect, he urged. The learned Senior C ounsel contended that the ground of providing series of instructions is not only vague but also is unconvincing. Though, Dr. Saraf, in his usual fairness did no t dispute the correctness of the facts bearing on the personal difficulties of t he learned counsel for the Revenue, he emphasised on want of bonafide of the Rev enue and its deliberate negligence disentitling it to the grant of such discreti onary relief. Dr. Saraf to reinforce his arguments placed reliance on the decisi on of the Apex Court in BALWANT SINGH (DEAD) VS. JAGDISH SINGH & ORS., (2010) 8 SCC 685 and of this Court in State of Manipur Vs. All Manipur Regular Post Vacan cies Substitute Teacher’s Association & Ors., (1995) 2 GLR 102 and in Indian Oil Corporation Ltd. & ors. Vs. Subrata Borah Chowlek, (2010) 3 GLR 312. 10. We have extended our thoughtful consideration to the rival proje ctions. Before adverting to the facts, it would be appropriate to recapitulate t he law as adumbrated by the judicial pronouncements cited at the Bar. 11. In Collector, Land Acquisition, Anantnag & Anr. Vs. Mst. Katiji & Ors., AIR 1987 SC 1353, the Apex Court enunciated that the expression ’suffici ent cause’ employed by the legislature is adequately elastic to enable the Court s to apply the law in a meaningful manner to subserve the ends of justice that b eing the life-purpose for the existence of the institution of Courts. Their Lord ships observed that such a liberal approach is justified, amongst others, on the consideration that refusal to condone the delay can result in a meritorious mat ter being thrown out at the very threshold and the cause of justice being defeat ed. It was propounded that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be pref erred for the other side cannot claim to have vested right in injustice done bec ause of a non-deliberate delay. Their Lordships underlined that there is no pres umption that delay is occasioned deliberately, or on account of culpable neglige nce or on account of mala fide and that a litigant does not stand to benefit by resorting to delay but to the contrary runs a serious risk. It was held in parti cular in the context of delay vis-a-vis the State that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making , file-pushing, and passing-on-the-buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve and, thus, certai n amount of latitude is not impermissible. Noting that the State represents the collective cause of the community, their Lordships observed that if the appeals brought by the State are lost for such default, which is generally in view of it s officers/agencies as well as the encumbered process of pushing the files from table to table, no person is individually affected but public interest is a casu alty. 12. The above view was reiterated in State of Haryana (Supra) to pro pound that the expression sufficient cause should therefore be considered with pragmatism in justice-oriented approach rather than to warrant explanation for every day’s delay. Their Lordships ruled that the factors which are peculiar to and characteristic of the functioning of the Governmental institutions would req uire adoption of pragmatic approach and that the Courts should decide the matter s on merits unless the case is hopelessly bereft thereof. 13. In BALWANT SINGH (DEAD) (Supra), the Apex Court was in seisin of a prayer for condonation of delay of 778 days in bringing the legal heirs of th e appellant on record in the appeal before it. The facts thereof disclosed that the application therefor was of one page wherein, the applicants contended that they were not aware of the pendency of the appeal earlier and that they had come to know of it only in the month of March, 2010, whereafter, the application was filed on 15.04.2010. Their Lordships noticed contradictions in the stand taken to explain the delay and concluded that the applicants had acted irresponsibly a nd with negligence and, thus, there was an ex-facie lack of bona fide. It was he ld that the conduct of the legal representatives of the sole deceased evinced th at they had acted with callousness and that they had not even stated true facts, which made the exercise of discretionary power in their favour difficult. It wa s in that factual context, that the Apex Court on an exhaustive survey of its ea rlier decisions on the issue declined to condone the delay. While emphasizing that the expression sufficient cause , implies the presence o f legal and adequate reasons to advance substantial justice, which presupposes n o negligence or inaction on the part of the applicant, it was enunciated that th e word sufficient signified adequacy to answer the purpose intended. Their Lor dships were of the view that the sufficient cause should be such as it would per suade the Court, in the exercise of its judicial discretion, to treat the delay as an excusable one. In conclusion, while culling out the quintessentials of the law applicable, their Lordships reiterated that the word sufficient cause sho uld be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts, circumstances and the type of the case. That t hese words ought to receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fide, deliberate inaction or negligence on the part of the applicant, was reemph asized. That the decisive factor in condonation of delay is not its length but t he sufficiency of a satisfactory explanation was indicated in clear terms. It wa s held that the extent and degree of leniency to be shown by a Court would depen d on the nature of the application and facts and circumstances of the case. 14. In State of Manipur (Supra), the delay involved was about 1 year 11 months and the explanation centered around developments suggesting lack of c oordination and consistence in views at different institutional levels ensuing i n the late filing of the appeal. A Division Bench of this Court on a survey of t he authorities laid before it, including the decision in Collector, Land Acquisi tion, Anantnag & Anr. (Supra), affirmed that in assessing sufficient cause, fact ors which are peculiar to and characteristic of the functioning of the Governmen t ought not to be excluded from consideration. It was observed that Government d ecisions are proverbially slow, encumbered as they are by a considerable degree of procedural red-tape in the process of their making and thus a certain amount of leeway is permissible. The necessity, however, of proving a sufficient cause was underlined adding that a liberal approach is essential to advance substantia l justice where no gross negligence or deliberate inaction or lack of bona fide is imputable to the party seeking the relief. It was noticed in the contextual f acts that the applicant had not made any attempt to disclose why during the peri od prescribed, the appeal could not be preferred. The applications for condonati on of delay were, thus, rejected in the above factual premise. 15. In Oil Corporation Ltd. & ors. (Supra), the delay involved was o f 59 days and the explanations furnished revealed, amongst others, that not only the applicant whiled away time at various intervening stages even after the exp iry of the period of limitation, they waited for the summer vacation of the Hon’ ble Supreme Court of India and the Delhi High Court to be over to have the matte r attended to by their learned counsel from whom a second opinion was solicited. The following observations were made in the above factual background to reject the prayer for condonation of delay: - 13. Condonation of delay, it is no longer res integra, is not a matter of right , the essential pre-condonation whereof is a sufficient cause satisfactorily exp laining the same. There is no straitjacket formula to adjudge a sufficient cause , an appraisal whereof has to be logically individualistic contingent on the att endant facts and circumstances. By no means, if sufficient cause in wanting, del ay can be condoned merely on equitable or sympathetic considerations. Though, a liberal approach in analyzing the cause is generally adopted, it cannot displace the imperative essentiality of a convincing and rational explanation to avail t he discretionary relief. 16. The primary legal precepts invocable for assessing an explanatio n to be sufficient or not vis-a-vis a prayer for condonation of delay are thus n o longer res integra. The cause offered has to be essentially analysed in the fa cts of each case and cannot be cast in a rigid mould incapable of any transigenc e. An explanation is a must, though, in scrutinizing the same a liberal approach has been consistently permitted so as to ensure that an otherwise genuine cause of justice is not defeated by adherence to technical precedence. Condonation of delay, though an equitable relief, however, cannot be accorded merely on sympat hy or compassion and the grounds offered have to be evaluated to test whether th e party in default had been guilty of conscious and deliberate inaction, culpabl e negligence and inexcusable indifference to the period of limitation mandatoril y prescribed by law. 17. Reverting to the facts except for the time consumed by the Asses sing Authority in completing the assessment in 99 cases, which was in the proces s of getting time barred on 31.12.2007, the Revenue, having regard to the steps taken from time to time, cannot be criticized of being either sluggish, indiffer ent or causal in its approach to the requirement of filing the accompanying appe als. The last date thereof being 22.01.2008, the Assessing Officer might have di verted his attention to the assessment cases, which were to get time barred prio r thereto i.e. 31.12.2007. There is no overwhelming material on record to negate the correctness or authenticity of this averment as well as of the acute shorta ge of the staff in his office adding to the delay in processing the exercise und ertaken. The response of the Assessing Officer in forwarding the relevant papers and documents noticeably had been on 11.01.2008, i.e., before the expiry of the period of limitation. The clarification sought for from the learned Standing Co unsel as to his opinion rendered with regard to the assessment year 2002-03, als o cannot be repudiated as unwarranted. Merely because instructions were provided to the learned Standing Counsel by the Revenue on more than one occasion, the s ame is not demonstrative of unnecessary wastage of time by it. More so, there is nothing to the contrary to even infer the same. The personal problems plaguing the learned Standing Counsel, as referred to hereinabove, have not been controve rted by the opposite party so as to discard the same as untrue. The preparation of the appeals, all these notwithstanding and the filing thereof within a reason able time of the subsidence of the learned Standing Counsels unforeseen tribulat ions persuades us to conclude that the causes enumerated to explain the delay ou ght to be construed as sufficient. To reiterate, the Revenue, in the facts and c ircumstances of the case, cannot be held guilty of any deliberate inaction, negl igence, indifference or a detached attitude vis-a-vis the appeals, so as to pena lize it with rejection of its prayer for condonation of delay. 18. On a totality of the considerations hereinabove, we are, thus, o f the unhesitant opinion that the applications have considerable merit and ought to succeed. Ordered accordingly. The delay of 290/287 days in preferring the ac companying appeals is hereby condoned. The miscellaneous cases are allowed.