TaxTMI 
TaxTMI 
2005 (6) TMI 474
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....consultant and then only came to know the non-filing of appeal. It immediately arranged the papers and filed the appeal. In support of this contention assessee has filed the affidavit of Shri Niranjan Modi, Chartered Accountant and Shri Mahesh Sharma, Director of the assessee. On the strength of this affidavit ld. Counsel for the assessee prayed the delay in filing the appeal may please be condoned. On the other hand, ld. D.R. opposed the prayer of the assessee and submitted that assessee failed to disclose as to when exactly the papers were handed over to the Chartered Accountant. 3. We have duly considered the rival contentions. The Courts and the quasi-judicial bodies are empowered to condone the delay if a litigant satisfied the Court that there were sufficient reasons for availing the remedy after expiry of the limitation. Such reasoning should be to the satisfaction of the Court. The expression "sufficient cause or reason" as provided in sub-section (5) of section 253 of the Income-tax Act is used in identical position in the Limitation Act and the CPC. Such expression has also been used in other sections of the Income-tax Act such as sections 274, 273, etc. The expression "....
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.... and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or preverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior Court would be free to consider the cause shown for the delay afresh and in its own finding even untrammelled by the conclusion of the lower Court. 10. ****** The primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause." [Emphasis supplied] The Hon'ble Supreme Court further observed that 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 the remedy promptly. The Hon'ble Court further observed that refusal to condone the 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....
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....in filing the appeal is the result of some omission on the part of its Tax Consultant's staff. It must be remembered that in every case of delay there can be some lapse of the litigant concerned. That alone is not enough to turn down the plea and to shut the doors against him. If the explanation does not smack of mala fide or it is not put forth as a part of dilatory strategy, the Courts must show utmost consideration to such litigant. As observed by the Hon'ble Supreme Court in the case of N. Balakrishnan (supra) the length of delay is immaterial. It is the acceptability of the explanation. That is the only criteria before condoning the delay. Therefore, taking into consideration the overall circumstances we condone the delay in filing the appeal and proceed to decide it on merit. 6. The grievance of the assessee on merits relates to confirmation of addition of Rs. 31,50,000. The brief facts of the case are that return of income was filed on 28-3-2002 declaring total income at Rs. nil. During the course of assessment proceeding the ld. Assessing Officer found a share capital of Rs. 30 lakhs and unsecured loan of Rs. 1,50,000 in the books of account of the assessee. He directed th....
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....ack unserved it does not mean the Assessing Officer should stop the enquiry and make the addition. Similarly on the strength of Hon'ble Supreme Court decision rendered in the case of CIT v. Steller Investment Ltd. [2001] 251 ITR 2632, he submitted that share capital cannot be added as unexplained cash credit in a company's case. On the other hand, ld. D.R. relied upon the orders of the revenue authorities below. He submitted that ld. CIT(A) has specifically taken into consideration the written submission filed by the assessee. 9. We have duly considered the rival contention. According to section 68 of the Act if any sum is found credited in the books of account of an assessee maintained for any previous year and the assessee offers no explanation about the nature and source thereof or the explanation offered by him is not satisfactory in the opinion of Assessing Officer then the sum so credited may be charged to income-tax as the income of the assessee of that previous year. Therefore, for explaining the cash credit found to be recorded in the books of an assessee he is required to explain the source of such credit, identity of the creditors and genuineness of the transaction. Thi....