TaxTMI 
TaxTMI 
2017 (3) TMI 1250
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....s and circumstances of the case learned CIT(A) has rightly allowed relief, in relation to various grounds, which have been challenged by the Assessing Officer (AO)vide ground nos 1-4, so the order of learned CIT(A) may be confirmed. B. Grounds to seek further, additional and alternate relief: 1) For that ld. Assessing Officer (AO) may be directed not to apply section 115JB since there is no computation of: (a) gross total income, (b) deductions under Chapter VIA, (c) total income and (d) tax payable and therefore, pre-conditions of charging and computation provisions of S. 115JB read with relevant other provisions are not satisfied and S. 115JB is not at all applicable and the learned AO was wrong in invoking S 115JB. 2) For that in view of the judgments of the Calcutta Tribunal in the case of Vishnu Sugar Mills Ltd. which have been approved by the Calcutta High Court, and has attained finality, section 115JB is not at all applicable in case of assessee for the year under consideration for the reasons as stated in earlier ground. 3) For that learned AO may be directed not to apply S. 115JB since assessee company is not a dividend paying company and in view of decisio....
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....to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so." 7. in G....
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....dge for the non-applicability of the provisions of section 115JB of the Act. It immediately filed the CO on the advice of the consultant when it was received. In the aforesaid facts & circumstances we find that there is nothing to suggest any deliberate or intentional delay in filing the appeal to the Hon'ble ITAT. The assessee had nothing to gain by delaying the application. The assessee filed CO as soon as it became aware of its obligation. This is a fit case where the delay should have been condoned considering the peculiar facts & circumstances. In this connection we also rely in the judgment of Hon'ble Apex Court in the case of State of West Bengal v. Administrator, Howrah Municipality [1972] 1 SCC 366, it was held by the Supreme Court that if a party had acted in a particular manner on a wrong advice given by his legal advisor, he cannot be held guilty of negligence so as to disentitle the party to plead sufficient cause. In N. Balakrishnan v. M. Krishnamurthy [1998] 7 SCC 123, it was held by the Supreme Court that the rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties did not resort to dilatory tactics but seeking their rem....
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....ecommended no dividend in the last two years. In view of above provisions, Ld. AR submitted that the provisions of Sec. 115JB of the Act are not applicable to the present case of assessee. Ld. AR of the assessee in support of his claim has also relied on the order of this Tribunal "E" Bench in the case of CIT vs. M/s Vishnu Sugar Mills Ltd. in ITA Nos. 2131, 2133/Kol/2004, 193 & 774/Kol/2005 and 918/Kol/2002 dated 17.08.2005 relating to AYs 2001-02,1998-99, 1996-97, 1997-98. 6.1 After hearing the Ld. AR of the assessee we find that the instant issue was not raised before the Ld. CIT(A) by assessee. Therefore, same was not adjudicated. However, we further find that issue raised by assessee is legal in nature and we are inclined to admit the same after having reliance in the judgment of Hon'ble Supreme Court in the case of National Thermal Corporation of India vs. CIT reported in 229 ITR 383 (SC). As the issue is not arising from the order of Authorities Below, therefore, we are inclined to restore this issue to the file of Assessing Officer for fresh adjudication in accordance with law and in the light of above stated discussion. Hence, the CO fled by assessee is allowed for ....
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....t been deducted or, after deduction, ^71[has not been paid,- (A) in a case where the tax was deductible and was so deducted during the last month of the previous year, on or before the due date specified in sub-section (1) of section 139; or (B) in any other case, on or before the last day of the previous year [Provided that where in respect of any such sum, tax has been deducted in any subsequent year, or has been deducted- (A) during the last month of the previous year but paid after the said due date; or (B) during any other month of the previous year but paid after the end of the said previous year,such sum shall be allowed as a deduction in computing the income of the previous year in which such tax has been paid.] As per the old provision the TDS was deductible & payable before filing the income tax returns under section 139(1) of the Act if it relates to the last month of the previous years and if it relates to other months then within the financial year. However the above provision was amended by the Finance Act 2010 effective from the AY 2010-11 which reads as under : Amounts not deductible. 40. Notwithstanding anything to....