TaxTMI 
TaxTMI 
2019 (3) TMI 804
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.... prescribed period of limitation and similarly the appeal on penalty levied under section 271(1)(c) was filed after 65 days of period of limitation. The ld. CIT(A) decided both the appeal by common order. 2. Brief facts of the case are that the assessee is a partnership firm engaged in the business of import and export of food grains, pulses and commodities. The assessee filed its return of income for Assessment Year 2012-13 on 30.09.2012 declaring income of Rs. 12,56,000/-. The assessment was completed under section 144 on 29.03.2015. The Assessing Officer while passing the assessment order made addition under section 68 of Rs. 1.25 Crore (approx), disallowance under section 40(a)(ia) of Rs. 40 Lakhs and further disallowed sundry creditors on adhoc basis @10% of Rs. 4.54 Crore being Rs. 44.45 Lakhs. On appeal before the ld. CIT(A), the appeal of assessee was not admitted being filed after 247 days of prescribed period of limitation. The assessee filed an application for condonation of delay along with affidavit explaining the cause of delay. The application of assessee for condonation of delay was not allowed; thereby appeal of the assessee was dismissed in limine being not admi....
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....As a result, the Firm and its partner could not take appropriate step for filing appeal before the First Appellate Authority. The ld. AR of the assessee submits that in the affidavit filed before the ld. CIT(A), the assessee explained all the facts as narrated above. The ld. AR of the assessee submits that there was sufficient cause for condoning the delay in filing appeal before the ld. CIT(A). In support of his submission the ld AR for the assessee relied upon the following decisions: 1. Collector, Land Acquisition vs. Mst. Katji & Ors [1987] 167 ITR 0471 (SC). 2. S.Duraipandi, [2014] 52 taxmann.com 90, Madras HC). 3. Prime Paper & Engineering (P.) Ltd. [2014] 41 taxmann.com 240 (Bom HC). 4. Alacrity housing Ltd. [2010] 327 ITR 139 (Madras HC). 5. Kaikara Construction Co. [2013] 33 taxmann.com 327 (Cochin Trib.). 6. Jay Dee Securities & Finance Ltd. [2017] 88 taxmann.com 626 (Del. Trib.). 7. Elnet Technologies Ltd. [2018] 99 taxmann.com 219 (Madras HC). 8. Vedabai Aoias Vaijayanatabai Baburao Patil vs. Shantaram Baburao Patil. [2002] 122 Taxman 114 (SC). 9. Progressive Education Society [2019] 102 taxmann.com 402 (SC). 4. The ld. AR of the assessee further subm....
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....f funds can pay taxes, due to delay was to be condoned. 10. The Co-ordinate Bench of Cochin Tribunal in Kaikara Construction Co. (supra) also held that facing acute financial crisis and multiple legal proceeding can be treated as a reasonable ground for delay in filing appeal before the ld. CIT(A). Similarly, the Co-ordinate Bench of Delhi Tribunal in ACIT vs. Jay Dee Securities & Finance Ltd. (supra) held that where there was no gross negligence or latches on the part of assessee, the delay should be condoned and appeal of the assessee should be heard on merit. 11. The Hon'ble Supreme Court in Vedabai Aoias Vaijayanatabai Baburao Patil vs. Shantaram Baburao Patil (supra) held that the Court should adopt pragmatic approach. The distinction must be made between a case where there is inordinate and a case where the delay is of a few days. In the former case, the consideration of prejudice to the other party will be a relevant factor so the case call for more cautious approach but in the later case no such consideration may arise and such a case deserves a liberal approach, no hard and fast rule can be laid down in this regard. The court has to exercise the discretion of the facts o....
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....ted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such litigation. (xi) It is to be borne in mind that no one gets away with fraud, is representation or interpolation by taking recourse to the technicalities of law of limitation. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude." 13. Now coming to the facts for condoning the delay placed before the ld. CIT(A), the assessee in its affidavit has clearly stated that in the Financial Year 2012-13, the assessee-firm suffered huge losses. The assessee-firm defaulted in financial discipline and to honor its business commitment. The loan/credit facilities against the mortgage/hypothecation charges and other sector were declared as NPA by its banker. The assessee also brought on record that a proceeding initiated under SARFAESI Act against the assessee. The Chief Metropo....