TaxTMI 
TaxTMI 
2016 (11) TMI 1306
X X X X Extracts X X X X
X X X X Extracts X X X X
....staff regarding receipt of the orders from the office of Commissioner of Income Tax (Appeals). The issues raised by the assessee in appeal before the Commissioner of Income Tax (Appeals) for assessment years 2005-06 and 2007-08 were identical to the issues raised in the appeal for assessment year 2006-07, which was rejected by the Commissioner of Income Tax (Appeals) vide order dated 22-10-2010. The assessee had filed appeal against the order of Commissioner of Income Tax (Appeals) for assessment year 2006-07 before the Tribunal in ITA No. 607/PN/2011. During the proceedings before the Tribunal, a query was raised by the Bench regarding the fate of appeal for assessment year 2005-06 pending before the Commissioner of Income Tax (Appeals). The assessee was under bonafide impression that the first appeal before the Commissioner of Income Tax (Appeals) for assessment years 2005-06 and 2007-08 are still pending awaiting the order of Tribunal in appeal for assessment year 2006-07. After the query of the Bench, the assessee approached the office of Commissioner of Income Tax (Appeals). After enquiry it transpired that the appeals of the assessee for assessment years 2005-06 and 2007-08 h....
X X X X Extracts X X X X
X X X X Extracts X X X X
....assessee has been negligent in pursuing his case before the Commissioner of Income Tax (Appeals). The explanation furnished by the assessee for delay in filing of the appeals does not show 'sufficient cause' as envisaged under the provisions of Limitation Act for condoning the day. 4. Both sides heard. The appeals filed by the assessee are time barred by 1224 days. The ld. AR of the assessee has tried to explain the reason causing delay in filing of appeals. An affidavit of Shri Manoj Ranoji Pokale, partner of the assessee firm has been filed. The delay in filing of appeals has been attributed to the negligence of office peon who has received the orders passed by the Commissioner of Income Tax (Appeals) and thereafter has failed to inform about same to the partners of the assessee firm or any other office staff. The assessee learnt about the orders of Commissioner of Income Tax (Appeals) when in pursuance to a query raised by the Tribunal in appeal of the assessee for assessment year 2006-07 the assessee approached the office of Commissioner of Income Tax (Appeals) to know the status of its appeal for assessment year 2005-06 wherein identical issue was involved. On enquiry it came....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion 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 perverse. 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 it is open to such superior court to come to its own finding even untrammeled 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." 1....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... expenses" 6. The Hon'ble Supreme Court of India in the case of Ram Nath Sao @ Ram Nath Sahu And Others reported as 2002 (3) SCC 195 has reiterated the law laid down by the Hon'ble Apex Court in the case of N. Balakrishnan Vs. M. Krishnamurthy (supra). The Hon'ble Court has held that the expression "sufficient cause" within the meaning of Section 5 of the Limitation Act or Order 22 Rule 9 of the Code of Civil Procedure or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will depend on facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. The courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bona fide can be imputed to....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ose of the appeal on merits. Similar view has been taken by the Chennai Bench of the Tribunal in the case of M/s. Questnet Enterprises India Private Limited Vs. The Assistant Commissioner of Income Tax in ITA Nos. 1821 & 1822/Mds/2011 for assessment years 2006-07 and 2007- 08 decided on 18-01-2012. 9. The ld. AR of the assessee has pointed that on merits the grounds raised in the present set of appeals are identical to the grounds raised by the assessee in appeal for assessment year 2006-07 in ITA No. 607/PN/2011 decided by the Tribunal on 31-10-2014. The grounds raised by the assessee in assessment year 2005-06 are as under : 1) "The Hon. CIT erred in holding assessee is not entitled to claim relief under section 80 IB(10) even though assessee satisfies all the requirement for grant of relief. 2) It may be held CIT(A) and A.O.'s orders are bad in law as they have failed to interpret provisions of sec.80 IB(10) correctly in accordance with law and decided cases. 3) Orders passed by A.O. and CIT (A) may be set aside and they be directed to accept the return of income claiming relief under sec 80IB(10). 4) The appellant pleads for directions allowing his appeal and craves....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rved that the assessee failed to complete the project within the stipulated time prescribed in section 80- IB(10) of the Act i.e. before 31.03.2008 and the deduction claimed u/s 80-IB(10) of the Act at Rs. 7,79,060/- was denied to the assessee, which was upheld by the CIT(A). 9. The explanation of the assessee in this regard was that the project had been completed within time limit i.e. 31.03.2008 as was evident from the fact that all the ancillary certificates from the various Departments had been received, copies of which are available at pages 20 to 24 of the Paper Book. The completion certificate was also received from Architect which is placed at page 19 of the Paper Book. In addition, the corporation tax notice had been issued to the owners which are placed at pages 37 to 41 of the Paper Book. All the above said evidences established that the construction of the building is completed and is fully occupied. In respect of the completion certificate to be issued by the Pune Municipal Corporation, the learned Authorized Representative by the assessee admitted that no such certificate has been issued till date. It was explained by the assessee in October, 2005, the Additional Co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mended provisions which were amended by Finance Act, 2000 w.e.f. 01.04.2001 and also the substitution by the Finance (No.2) Act, 2004 w.e.f. 01.04.2005 and held that in the pre-amended provisions when the plan was sanctioned/approved, there was no condition of production of completion certificate. The Hon'ble High Court held that the it was a settled proposition of law that the law existing at the particular time would be applicable, unless and until it was specifically made retrospective by the legislature. The Hon'ble High Court thus held that "the substitution so made, is therefore, applicable prospectively and not retrospectively". In the facts of the case before the Hon'ble High Court in the case of CIT vs. CHD Developers Ltd. (supra), the approval was granted to the assessee on 16.03.2005 and the assessee was expected to complete the project on or before 31.03.2009. The issue arising before the Hon'ble High Court was whether the project was completed by the assessee within time. The High Court noted that assessee had vide letter dated 05.11.2008 informed the authorities that the construction have been completed and further request was made for grant of completion certificate.....