TaxTMI 
TaxTMI 
2019 (7) TMI 1263
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....s under. 2.1. In all the appeals the assessee raised common grounds of appeal in Ground Nos. 1, 2 and 3 relating to assessee's petition for condonation of delay in filing the appeal which reads as under : 1. On the facts and in circumstances of the case and in law the learned Commissioner of Income Tax (Appeals) (hereafter referred to as Ld. CIT(A)) erred in refusing to condone the delay in filing the appeal. 2. The Ld. CIT(A) erred in holding that the reasons for filing belated appeal were not beyond the control of the Appellant. 3. The Ld. CIT(A) erred in not deciding the issues on merits which is contrary to law, facts and circumstances of the case and opposed to the principles of natural justice, fair procedure and legitimate expectation. The Appellant prays that the delay be condoned and appeal be taken up and considered on merits. 2.2. In the instant case, the Ld.CIT(A) dismissed the appeal of the assessee without condoning the delay. Since the issue of condonation of delay goes to the root of the appeal and the crucial issue to go further, we first take up the issue with regard to the condonation of delay. In the instant case, a search u/s 13....
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....tly levied the penalty. After the levy of the penalties u/s 271(1)(c), the assessee filed appeal before the CIT(A) with a delay of 264 days and submitted before the CIT(A) that it has filed the revised returns during the assessment proceedings with an understanding of not to levy the penalty u/s 271(1)(c) of the Act and put to an end for the li tigation, hence, the assessee declared the additional income and did not go on appeal as per the Gentlemen's Agreement. Till such time the penalty was levied the assessee was under the impression that the department would honour it's commitment with regard to non-levying of penalty u/s 271(1)(c) of the Act. However, the department did not honour it's commitment and levied the penalty, therefore, the assessee is forced to come on appeal before the CIT(A), hence requested to condone the delay and admit the appeal. The assessee further argued before the Ld.CIT(A) that the assessee is in double jeopardy for honouring it's commitment i.e. payment of taxes and the penalty though the assessee's income is exempt u/s 11 and there is no case for taxing the receipts u/s 115 BBC of the Act. In view of the peculiar circumstances the asses....
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....he AO completed the assessments as per the revised returns filed without taking the basis of incriminating material, the penalty was initiated which is incorrect. Even after having submitted the explanation, explaining the reasons for admission of income, the assessee has not been spared and levied the penalty. Therefore, the assessee is constrained to go on appeal seeking justice since, the department has broken it's commitment with regard to taking lenient view on penalty. It can be seen from the assessment record that the assessee did not file appeals till the penalty proceedings were finalised and the appeals are filed only after passing the penalty orders which shows the bonafide intention of the assessee to honour the understanding between the department and the assessee. By levying the penalty, the assessee was made to suffer the tax and penalty which is heavy burden on the assessee and the proceedings did not close as expected hence forced to come on appeal. Though the assessee was not liable for additional income it was admitted only with an intention to purchase peace. The Ld.AR argued that in the instant case, the appeal was dismissed inlimine without going into t....
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.... "5. It is submitted that, we had filed returns in response to notice issued U/s. I 53A on 05-03-2015 from assessment year 2009-10 to 2014-15 by disclosing the anonymous donations received and expenditure found recorded in the seized material. Even after considering / including the anonymous donations and expenditure found in the seized documents with the receipts and expenditure recorded in the regular books of account, the total expenditure incurred during the year exceeded the statutory limit of 85 % of the receipts. As such, there was no tax liability and no requirement of preparing computation of total income: The stand taken by the Society was strictly in accordance with the provisions of Sec 11 to 13 of the Income Tax Act read with a plethora of case laws pronounced by various judicial authorities, The returns were filed accordingly. 7. It is submitted that the above revised returns are being filed only with the sole objective of purchasing peace with the department and to avoid possible litigation. The above returns are filed with a clear understanding that no penal and prosecution proceedings would be initiated against the assessee Society. in case the Depart....
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.... to taking lenient view is not possible the AO ought to have intimated the same to the assessee and should have completed the assessment rejecting the revised return which was filed on conditional surrender. The AO would have completed the assessment as per incriminating material found during the course of search instead of accepting the revised returns. Since the AO has completed the assessment accepting the revised return, it is understood that the revised returns were filed subject to non-levying of penalty. From the above chronology of events, it is evident that the assessee's admission of additional income through revised return is conditional surrender and the assessment was made on the basis of admission made by the assessee as per letter dated 10.03.2016. Since the AO has levied the penalty on admission of additional income which was surrendered conditionally, the department has gone against the implied mutual understanding between the department and the assessee and same is sufficient reason for condoning the delay in filing the appeal. When the assessee has admitted the additional income trusting the department that the penalty would not be imposed and if the depar....
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....he courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfet tered free play. viii) There is a distinction between Inordinate delay and a delay of short duration or few days, forth the former doctrine of prejudice is attracted whereas to the tatter it may not be attracted, That apart, the first one warrants strict approach whereas the second calls for a liberal delineation ix) The conduct, behaviour and attitude of a party relating to its Inaction or negligence are relevant factors to be taken into consideration It is so as the fundamental principle is that the courts are required to weigh the bale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. xii) The entire gamut of facts are to be ....
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....ction and delay in filing the appeal required to be condoned. For the sake of clarity and convenience, we extract para No.2 of the order of the ITAT, Delhi which reads as under: "2. The registry has pointed out that there is delay in filing the appeal by 315 days. The assessee moved an application for condonation of delay by stating therein that the delay occurred in the present ease is bona tide. It was further stated that assessee had made surrender of Rs. 50,00,000/-subject to no penal action but while framing the assessment, the A0 initiated the penalty proceedings u/s 271(1)(c) of the Act and the CIT(A) vide order dated 30-12 2011 upheld the proceeding initiated by the A0 u/s 147 of the Act and confirmed the addition of Rs. 50,00,000/-accepting the surrender made by the assessee. However, the Id. CIT(A) deleted the addition of Rs. 7,13,535/- made by the A0 on other grounds. It was submitted that since the conditional surrender had been accepted by the A0 and the CIT(A), the assessee did not file appeal against the order passed by the CIT(A) and it was only when the A0 imposed the penalty of Rs. 17,00,000/- vide order dated 30.07.201Z the assessee after receiving the s....