TaxTMI 
TaxTMI 
2019 (9) TMI 312
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.... The above assumption is unsustainable in law and on the facts of the appellant's case. 3. It is respectfully submitted that the notice dated 27.10.2016, by which the Commissioner proposed to invoke section 263 of the Act and the revised asst. Order contained mere allegations/opinion and did not contain any cogent and reliable material or evidence to come to a conclusion that the order passed by the assessing officer is erroneous and prejudicial to the interest of Revenue. A true copy aforesaid notice dated 27.10.2016 is produced herewith and marked as Annexure-A. 4. In this connection, the appellant respectfully submits, without prejudice, that the allegations contained in the notice Annexure-A are properly explained through the reply dated 22.11.2016 by pointing out that based on the facts of the case and the principles of law governing the issue both in regard to the merits of the case, as regards the alleged error or prejudice and in regard to the settled principles of law and that :- i) "the expenditure and cost incurred for issue of debentures is a statutorily admissible claim in the year of issue in which such expenditure is incurred without resorting to amortiza....
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....g the Assessing Officer to make fresh assessment. The order u/s 263 was passed on 30.11.2016 and was communicated to the petitioner on or about 3.12.2016. The time for filing the appeal being 60 days from the date of service of the order, the due date for filing the appeal was 1/2/2017. The appeal now filed against the order u/s 263 is, therefore, delayed by 288 days. 3. The petitioner respectfully submits that upon receipt of the order u/s 263, the same was handed over to the Chartered Accountant, MIs Cheeran Varghese & Company, Thrissur within a reasonable time thereafter. The order u/s 263 concluded in paragraph-10 by recording the finding that "The order of the Assessing Officer is set aside on the issue mentioned in the earlier part of the said order 'for the limited purpose on verification and examination of the above relevant facts. 'A decision on the eligibility for deduction, would be arrived at by the Assessing Officer after granting the assessee an opportunity of being heard". The appellant bonafide believed that the above finding was confined to verification of books of account already accepted by the Assessing Officer when the Assessment Order passed vide....
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....e the appeal before the Tribunal due to ignorance of law and necessity of filing appeal was came to the knowledge of the assessee only when it was consulted Advocate for filing the appeal against the giving effect order dated 31.08.2017 to the order u/s 263 of the Act, by the Assessing Officer. According to the learned AR, there is a reasonable cause for not filing the appeal in time before this Tribunal. Once the assessee had came to know about the necessity of the appeal against the impugned order, immediately the assessee acted upon and filed this appeal before the Tribunal. According to the learned AR, there is no reason to believe, even for a moment that the assessee was not careful enough to file the appeal in time in this case. He submitted that the Tribunal may admit the appeal after the expiry of the relevant period of limitation, if it is satisfied that there was sufficient cause for not presenting it within that period. The learned Senior Counsel highlighted the thrust on the intention of the law reflected in section 255(5) of the Act. He stated that the law is similarly concerned "sufficient cause" in matters relating to belated appeal. According to him, the length of ....
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....against the impugned order of the CIT passed u/s 263 of the Act. It was submitted that at that point only the assessee thought of filing this appeal before this Tribunal. It appears that originally the assessee had no intention to file an appeal against the order passed by the CIT u/s 263 of the Act. We find that giving effect order passed by the Assessing Officer on 31.03.2017 alone is the provocation of filing the appeal before this Tribunal with the delay of 288 days against the order passed by the CIT u/s 263 of the Act. We find that this does not constitute sufficient cause for the delay caused in filing the appeal before us. In our opinion, the assessee cannot indefinitely wait for the fate of the consequential order to be passed by the A.O. against the order passed by the CIT u/s 263 of the Act. The assessee herein wants to take the benefit of its wrong doing which is evident from the above narrated facts in detail. The assessee has not explained proper reason for such a delay of 288 days in filing the appeal before the Tribunal and it cannot be said that the assessee was diligent in filing appeal before the Tribunal. It is the primary duty of the assessee to establish suffi....
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....s sufficient reasons for condonation of delay. The Ld. CIT(DR) has relied upon the decision of the ITAT, Cochin Bench dated 19/12/2008 in the case of Kerala Cricket Association (supra) and the relevant part of the decision is reproduced hereinbelow for the sake of convenience: "3. We have considered the rival submissions and perused the material available on record including the precedents. The delay of 445 days is, in our view, quite inordinate and there is no reason for such a long delay. The quantum of delay is not material, if it is supported with sufficient reason. The Court can take a pragmatic approach to the honest litigant and the Court cannot help a dormant person who slept over the order of the Commissioner who denied registration under section 12A(a) to the Kerala Cricket Association. If they are vigilant enough that the denial of the registration benefit has so much injurious effect on their interest, then they should have approached the Tribunal within the reasonable time. The flimsy grounds stated in the petition are not sufficient reasons so as to condone the delay. As rightly contended by the learned Departmental Representative, without sufficient cause or suffic....
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....nces of each case. It is obvious that application u/s. 35 for rectification was wholly misconceived under the circumstances. Having regard to the entire background of the case and the fact that the counsel happened to be natural father of the assessee, it is difficult to hold that any error of law has been committed by the Tribunal in refusing to condone the delay." 8. In the circumstances and facts of the case and the decisions relied upon hereinabove, we do not find any sufficient cause for condonation of such an inordinate delay of 1964 days and accordingly, the appeal of the assessee is not admitted and the same is rejected. Also, we do not think it fit to decide the issue on merit. Thus the appeal of the assessee is dismissed. 9. In the result, the appeal of the assessee in I.T.A. No.84/Coch/2016 is dismissed." 8. This view of the Tribunal was confirmed by the Hon'ble jurisdictional High Court in Writ Petition (C) No.31709 of 2016, dated 12th January, 2017, by observing as under:- "The petitioner is aggrieved with the order at Ext.P7 of the Income Tax Appellate Tribunal, Cochin Bench, Cochin. The short facts to be noticed are that the petitioner filed an application und....