CBDT Instruction No 5/2014 dated 10.07.2014

Kunal Surana vs. ITO (ITAT Mumbai)

Requirements of a valid affidavit in support of delay condonation application set out

The assessee filed an appeal before the CIT(A) which was delayed by 4 months. The delay was explained to have been caused by the fact that the assistant of the Authorized Representative kept the papers in a drawer and overlooked them till a penalty notice was received. The CIT(A) declined to condone the delay and dismissed the appeal. The assessee filed an appeal before the Tribunal and also filed an affidavit of the Authorized Representative in support of the application for condonation of delay. HELD by the Tribunal dismissing the application and the appeal:

The affidavit produced by the AR is not a valid affidavit because

1.  there is no verification appended on it and

2.  there is no mention as to which of the paras are true to the knowledge of the deponent and

3.  which of the paras of the affidavit are true to his belief.

4.  The affidavit is also not a duly sworn affidavit as required under Rule 10 of the ITAT Rules 1963 because

(i)                  it has not been properly endorsed by the notary regarding the oath of affirmation before him by the executant of the affidavit.

(ii)                The notary has put his signatures under his name seal but there is no mention whether the oath was administered to the signatory or

(iii)               if done so, when and where it was administered. Even words “Sworn before me” are missing.

(iv)              If the affidavit does not certify or endorse the fact that oath has been administered, it remains a waste paper.

On merits, the case is one of gross negligence and inaction on the part of the assessee and the AR. The explanation that the AR’s assistant kept the papers in his drawer and failed to take necessary action is vague and evasive and not sufficient cause for condonation. There is also no general principle saving the party from all mistakes of its counsel. There is also total inaction and gross negligence on the part of the assessee for not inquiring the status of the appeal from the AR. Though courts adopt liberal view while condoning delay on the principle that technicalities should not prevail over the cause of justice, litigants should not take the courts for granted.