TaxTMI 
TaxTMI 
2018 (3) TMI 43
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....oval is required which was refused on issues by minutes dated 18.02.2010 and subsequently, Hon'ble Supreme Court in Electronics Corporation of India Vs. Union of India 332 ITR 58 held that COD approval is not required was delivered on 17.02.2011. Further, the clarification from the Cabinet Secretariat was also passed on 12.12.2011 and therefore, pursuant to that appeal was filed on 15.03.2012. b. For Assessment Year 2007-08 it was submitted that order of the ld CIT(A) dated 19.08.2010 was communicated to Pr. CIT on 06.09.2010 for which time limit for filing of appeal before the coordinate bench expired on 05.11.2010. As the committee on Disputes (COD) approval is required which was refused on issues by minutes dated 18.02.2010 and subsequently, Hon'ble Supreme Court in Electronics Corporation of India Vs. Union of India 332 ITR 58 held that COD approval is not required was delivered on 17.02.2011. Further, the clarification from the Cabinet Secretariat was also passed on 12.12.2011 and therefore, pursuant to that appeal got filed on 15.03.2012. 3. Therefore, both the appeals are delayed. She submitted that revenue do not benefit from filing a late appeal which is delayed....
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.... DR and submitted that authorisation for the Commissioner of Income Tax on 09.03.2012 submitted filing of the appeal whereas, that the COD approval was rejected on 19.11.2009. He further stated that in the authorisation u/s 253(2) copy of the minutes are referred but same were not enclosed. It was further stated that as decision cited by the ld CIT DR equally applied to the revenue where there is a gross negligence or inaction is proved from the date chart. He further stated that all the COD minutes, which are shown, are pertaining to appeal before the Hon'ble High Courts and not before the tribunal and are of earlier years. He therefore, submitted that no such proceedings in respect of impugned appeals were before COD. Hence, there is no question of denial of permission by the COD. He further stated that decision of the Hon'ble Supreme Court was rendered on 17.02.2011 but the appeals have been filed only on 21.03.2012 and for such a mammoth delay no „sufficient cause‟ is shown. He further stated that explanation stated are contradictory as per letter dated 09.03.2012 of the ld DR and letter dated 20.09.2013. He further submitted that the explanation of the COD ....
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....peals dismissed by the courts for want of COD approval necessary applications may be filed where the COD has now permitted to pursue the appeal. She submitted that though the Assessment Year before the COD was not pertaining to Assessment Year 2006-07 but the matter and issue involved are identical. She further stated that letter dated 12.12.2011 is a general instruction as per clarification of Cabinet Secretariat as it applies to all the matters. 6. We have carefully considered the rival contentions. Admittedly, there is a considerable delay in filing of the appeal by the revenue. The Hon'ble Bombay High Court in notice of motion No. 891/2016 has held that it cannot be denied that revenue is one of the largest litigants and has to be a model and ideal litigation. Therefore, merely because an applicant is a state delay in filing appeals cannot be condoned without a proper explanation, which equally applies to the state. Therefore, if the revenue fails to show sufficient cause then obviously, the condonation of delay in filing of the appeal cannot be considered. The Hon'ble Bombay High Court also held that certain amount of latitude in cases where govt is a litigant, is not....
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.... delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. 1." Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period." 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 and pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, the 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. ....
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.... case following the guidelines given by the Hon'ble Supreme Court we are of the view that delay in filing appeal by the revenue needs to be condoned. 8. As the ld AR has cited various decisions of the courts, firstly the reliance was placed on the decision of the Hon'ble Supreme Court in 348 ITR 7 , wherein, the Hon'ble Supreme Court refused to condone the delay of 427 days wherein neither the department nor the person in charge had filed an explanation for not applying for certified copy of the decision of the High Court within prescribed period. Further, the dates mentioned in the affidavit clearly showed that there was a delay at every stage and there was no explanation as to why such delay has occurred. In the present case before us the revenue has given a date wise details for each step which has caused this delay with logical reasoning. The second decision relied upon is of Hon'ble Rajasthan High Court in 304 ITR 166, in that particular case the appeal of the revenue was dismissed for the reason that the department has taken a decision to file the appeal at the belated hour that was not considered as sufficient cause. Therefore, the above decision relied upon....
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....ount of disallowance of deduction by the assessee u/s 80IA on rolling stock. 2. The ld CIT(A) has erred on facts and in deleting addition of Rs. 815393/- made by the AO on account of disallowance of extra deprecation claimed by assessee on computer peripherals." 10. The first ground of appeal is against deduction u/s 80IA of Rs. 1890214003/- allowed by the ld CIT(A) on rolling stocks as infrastructure facilities. 11. The ld DR submitted that it is not possible for any enterprise other than Indian Railways to operate a railway system and therefore, rolling stock does not fall within the definition of infrastructure facilities u/s 80IA(4) of the Act. 12. The ld Authorised Representative submitted that the above issue is squarely covered in favour of the assessee by the decision of coordinate bench for Assessment Year 2003-04 to 2005-06 dated 27.02.2009 at 110 TTJ 728. 13. We have carefully considered the rival contentions and also perused the orders of the lower authorities. The above issue that whether rolling stock i.e. wagons are part of rail system and are infrastructure vide explanation (a) to section 80IA(4)(c) is squarely covered in favour of the assessee by the afores....
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....ion of the Hon'ble Delhi High Court ground NO. 2 and 3 of the appeal of the assessee deserves to be allowed. Consequently the order of the lower authorities are reversed the ld AO is directed to grant deduction to the assessee of Rs. 483267454/- to the assessee u/s 80IA of the Act. 24. Ground No. 4 of the appeal is with respect to the disallowance of the claim of Rs. 24619447/- of productivity linked incentive confirmed by the ld CIT(A). The ld Assessing Officer disallowed the above claim holding that the assessee has made a provision of Rs. 2.46 crores whereas the actual payment in subsequent years is only Rs. 2.42 crores and the above expenditure is unascertainable. The ld CIT(A) confirmed the above disallowance for the reason that the computation of the claim was not established scientifically by the appellant and further there is difference in the provision and the amount paid. 25. The ld AR vehemently contested that productivity linked insurance is paid to the employees by the reasons independently and for which the amount is debited in profit and loss account on ascertainable basis with accounting principle and laid down standard. In fact the expenditure is pertaining t....
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.... respect to the year for which the appeal is pending before us. Accordingly we direct the ld AO that if the tax has been deducted and deposited on the above disallowance in this year or has been paid after the due date of filing of the return for Assessment Year 2005-06 the claim may be allowed to that extent in AY 2006-07. Accordingly, ground No. 5 of the appeal is allowed with above direction. 33. Ground No. 6 of the appeal of the assessee is against charging of interest u/s 234A and 234B which is consequential in nature and therefore, in absence of any specific argument we dismiss the same. 34. In the result appeal of the assessee for AY 2006-07 in ITA NO. 3960/Del/2010 is partly allowed. 35. Now we come the appeal of the revenue in ITA NO. 1555/Del/2012 for Assessment Year 2006-07 challenging that the ld CIT(A) has erred in deleting the penalty u/s 271(1)(c) of the Act of Rs. 170954730/-. 36. The assessee has raised the following grounds of appeal in ITA NO. 3960/Del/2010 for the Assessment Year 2006-07:- "1. On the facts and in the circumstances of the case, the order passed by the Ld. CIT (Appeals) is bad both in the eye of law and on facts. 2. On the facts and in th....