Foreign Company Appeal Granted Despite Delay; Emphasis on Substantial Justice Over Technicalities

KVAERNER BOVING CONSTRUCTION LTD. Versus

KVAERNER BOVING CONSTRUCTION LTD. Versus - TTJ 054, 429, Issues Involved:
1. Condonation of delay in filing the appeal.
2. Merits of the case regarding the tax liability and refund claim.

Issue-wise Detailed Analysis:

1. Condonation of Delay in Filing the Appeal:

The assessee, a foreign company, filed an appeal challenging the order of the CIT(A) dated 16th September 1993, which dismissed their appeal as time-barred. The appeal was filed late by one year, with the order being served on the assessee on 22nd October 1991, and the appeal being filed on 23rd November 1992. The assessee argued that the delay was due to a bona fide belief that the assessment was correctly framed, which was later challenged based on the Bombay High Court's decision in Chowgule & Co. vs. CIT, which held that Rule 115(c) of the IT Rules was ultra vires the Act. The assessee sought condonation of the delay, citing various case laws to support their claim of a reasonable cause for the delay.

The Tribunal considered the submissions and relevant case laws, including the principles laid down by the Supreme Court in Collector of Land Acquisition vs. Mst. Katiji & Ors., which emphasized that substantial justice should prevail over technicalities, and delays should be condoned if sufficient cause is shown. The Tribunal noted that the assessee, being a foreign company, had no knowledge of Indian tax laws and that the decision of the Bombay High Court was not available when the assessment was finalized or during the period of limitation for filing the first appeal. The Tribunal found that the delay caused by the 3-1/2 months from the last date of filing the appeal until the date of the Bombay High Court judgment was bona fide and constituted sufficient cause. Additionally, the period between the date of the judgment and its publication in the law journal was also excusable. The Tribunal concluded that the time taken for consultation, preparation of the appeal, and sending the papers to the United Kingdom for signature was reasonable and constituted sufficient cause for the delay.

2. Merits of the Case Regarding the Tax Liability and Refund Claim:

Since the CIT(A) dismissed the appeal in limine as time-barred, the merits of the case regarding the tax liability and refund claim were not addressed. The Tribunal set aside this issue to the file of the CIT(A) to decide it in accordance with the law after giving the assessee an opportunity to be heard. The Tribunal instructed the CIT(A) to consider the merits of the case, the stand of the assessee, any relevant supporting material, and the case law that may be relied upon.

Conclusion:

The appeal of the assessee was partly allowed, with the Tribunal condoning the delay in filing the appeal and remanding the case to the CIT(A) to decide on the merits of the tax liability and refund claim.