TaxTMI 
TaxTMI 
TaxTMI 
2012 (11) TMI 661
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....e the delay in filing the first appeal before him within the*time limit stipulated under S. 249(2) and thereby in dismissing the appeal in limine at threshold without going into the merits of the case. 1.1 He failed to appreciate the 'sufficient cause' demonstrated to him for condonation delay in filing in appeal under S. 249(3) in correct perspective as noted in KVAERNER BOVING CONSTRUCTION LTD vs. Dy. GIT 54 TTJ 429(Del. Bench) (1995). 1.2 He further failed to appreciate that in the light of CBDT Circular No. 2/2006 dated 17.01.2006, he was advised for not indulging in protracted litigation and therefore he was prevented from sufficient cause for not filing appeal within limitation period. 1.3 He failed to appreciate in view of CBDT circular, the assessee remained under good faith and bonafide impression of the given legal position and did not proceed to indulge in cost prohibitive protracted litigations by availing the remedy before the chain appellate authorities starting with learned CIT(A). 1.4 He ought to have appreciated that assessee need not be denied remedy by way of appeal on mere technicalities in view of the landmark Supreme Court judgment reported in 167 ITR 471(....
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....of the aforesaid reasons the assessee has now preferred the appeals. The assessee had petitioned before the ld. CIT(A) for condonation of delay. However, the ld. CIT(A) relied on the decisions of the following cases and denied condonation of delay. i) Andal Sweet Stall & Tiffin Dining Hall -vs- State of Tamilnadu (1981) 48 STC 551 ii) Nihalkaran -vs- CWT (1988) 73 CTR MP 63 iii) M.S. Nulson India Ltd. -vs- CIT (1996) 219 ITR 736 iv) Collector Land Acquisition -vs- Mst. Katiji & Ors. (1987) 62 CTR 23 v) Vedabai alias Vaijayanatabai B Patil -vs- Shantaram B Patil & Ors (2002) 173 CTR 300(SC) vi) CIT-vs- Ram Mohan Kabra (2002) 178 CTR (P&H) 274 vii) ITO-vs- S.G. Jhaveri & Co. (2004) 89 TTJ 895 viii) Ramla & Ors. -vs- Rewa Coalfields Ltd. AIR 1962 SC 361 ix) Ajit Singh Thakur Singh & Anr -vs- State of Gujarat (1981) 1 SCC 495 x) V.V.Kudva & Anr -vs- ESIC AIR 1972 Mysore 204 The ld. CIT(A) made the following observations for refusing condonation of delay:- " 4.7 As may be seen from the above, the facts of the Assessee's case are identical to the facts of the case of Venkatesa Paper & Boards Ltd (supra) and therefore, the ratio of that case is squarely applicable to the case ....
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....Rs.10.00 Cr during the previous year and also received duty entitlement under DEPB Scheme under Foreign Trade (Development & Regulation) Act, 1992. The entire sale proceed of the DEPB was taken as profit U/s. 28 (iiid) of the Act and 90% of the same was reduced from "Profit & Gains of Business and Profession" as required by explanation (baa) of sec 80 HHC and the same proceed was further added to "Profit & Gains of Business and Profession" as per proviso to sub-section (3) of sec 80 HHC but in view of amendments made in to sec 80 HHC by the Taxation Law (Amendment ) Act ,2005. The further addition as per sub-section (3) was restricted in case of exporter having export turnover exceeding Rs.10.00 Cr by inserting the another proviso to that subsection, which was having retrospective effect and accordingly the case was reopened u/s. 147 and reassessed U/s. 143 (3) r.w.s.147 disallowing the deduction claimed U/s. 80 HHC to the tune of Rs.1,38,47,642. 3. We were legally advised not to pursue the addition/disallowance before the Hon'ble Appellate authorities. Accordingly, demand arising from such addition/disallowances were being paid in course of time as per CBDT circular No.2/2006 Dat....
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....d. Solemnly affirmed at Surat For BANNER INERNATIONAL. Sd/- (Hemant Borana) Mg. Partner Appellant Date: Seal of the Notary Attested Sd/- NITA J. MEVADA Advocate & Notary Govt. of India. Surat /Gujarat) I know the Signatory and Identified by me Sd/- R.M.Bakriwala Advocate, Palanpur Patiya, Surat 5.1 The ld. A.R. argued that the ld. CIT(A) had failed to observe the ratio in the case of KVAERNER BOVING CONSTRUCTION LTD -vs- Dy. CIT 54 TTJ 429 (Del. Bench) (1995). The assessee had not filed the appeals in order not to indulge in protracted litigation considering the circular no.2/2006 dated 17.01.2006 and that was a sufficient cause for not filing the appeals within the limitation period. However, the subsequent favorable decision of the Hon. ITAT rendered in the case of Topman Exports (supra) on the issue of section 80HHC in respect of DEPB certificates, which was identical to the case that of the assessee, the assessee swung into action to file the appeals. The assessee with the above submission prayed that the delay may be condoned and the issue may be remitted back to the ld. CIT(A) for adjudication, as per law and merit. 6. The ld. D.R. vehemently opposed to the s....
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....iling a belated appeal, as on the date of the said decision itself, limitation for filing the first appeal ran out. The CIT(A), therefore, dismissed the appeal as time barred. Hence, the instant second appeal by the assessee before us." 7.1 In the case cited above, it was held by the Hon'ble High Court at under: "We are of the considered opinion that only due to the bona fide reasons, the assessee, a foreign company could not file the appeal in time which is further discussed hereinafter below and that, therefore, the assessee should not be denied of being heard on its merits and rejected by merely on grounds of technicalities. In the case of Venkata Ramana Chuduva (supra) decided by the Honble Andhra Pradesh High Court, however, holds that where the decision of the High Court in Nooka Agaiah 39 STC 521 was not rendered, much less reported by the date of receipt of the assessment orders by the assessees and both the judgments of the High Court and the Supreme Court were rendered long after the period of limitation for filing the appeals in their case expired and the assessees filed appeals after the decision of the Supreme Court with a petition to condone the delay, it could not....
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....s come up before us for our scrutisr in the second appeal, the decision of the Honble Gujarat High Court also in the case of Karam Chand Prem Chand Pvt. Ltd. cited supra relied upon by the assessee heavily comes to its rescue in our considered opinion. In that case, the assessee did not claim deduction in assessment on the basis of law as propounded by the High Court, but the later decision of the Supreme Court permitted the deduction and therefore revision petition to the CIT was filed based on law as later expounded by the Supreme Court even though that petition was time-barred. The questions arose as to whether there was sufficient cause to excuse such delay and whether the CIT was right in refusing to excuse such delay, such refusal to exercise the discretion was also judicious in a writ petition before the Honble Gujarat High Court. The Gujarat High Court ultimately maintained the writ petition by holding that the petition for rectification of assessment was sustainable and that, therefore, the revision petition was not barred by time as the delay in preferring the application before the CIT was rightly condoned and that the CIT was directed to proceed further in the matter a....
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.... caused by 3-1/2 months approximately from the last date of filing the appeal, i.e., 21st Nov., 1991, up to the date of judgment of the Honble Bombay High Court which is 4th March, 1992, is a bona fide one constituting sufficient cause preventing the assessee in filing the appeal before CIT(A). Now, coming to the period of delay caused subsequent to the date of delivery of the aforesaid judgment of 4th March, 1992, until the date of filing the first appeal before the CIT(A) on 24th Nov., 1992, it was submitted before us that the aforesaid decision of the Honble Bombay High Court was reported in the law journal on 24th Aug., 1992, which was brought to the notice of the assessee thereafter. If it would have been reported in the journal on 24th Aug., 1992, normally about a week or two may be taken for reaching the hands of even a regular law journal subscriber. In fact, it has been held by the decision in the case of S. Ratnam Pillay vs. ITO (1987) 20 ITD 578 (Coch) that in view of the decision in the case of Asia Tobacco Co. Ltd. vs, Union of India (1985) 155 ITR 568 (Mad), the notification dt. 29th March, 1987, in that case was effective for the assessee as well as the Department o....