TaxTMI 
TaxTMI 
2019 (11) TMI 1435
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....diture of Rs. 1422847/- was erroneous and prejudicial lo the interests of the revenue. 4. The Id. Pr. CIT has erred in law and on facts in setting aside the order passed u/s. 143(3) of the Act and in directing the Assessing Officer to pass a fresh order with respect to the following issues: (i) shave application money of Rs. 72552,000/ - received from Shri Amrit Rajani; and (ii) share application money of Rs. 85117856/- received from M/s. Whiz Enterprises Pvt.Ltd. 5. The Id. Pr, CIT ought to have appreciated that the Assessing Officer had already examined the aforesaid issues and it was after judiciously considering the subject-matters that a decision thereon was taken. 6. The appellant craves leave to add to, amend, alter or delete all or any of the foregoing grounds of appeal. 3. At the time of hearing, the Ld. AR for the assessee submitted that there is a delay of 191 days in filing the captioned appeal before the Tribunal, for which necessary application for condonation of delay along with affidavit has been filed explaining reasons for delay in filing appeal. The Ld. AR for the assesee, further, submitted that the PCIT-9, Mumbai ....
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....eal being filed against the order of the Id. AY CIT-9, Mumbai dated 23.03.2018 passed u/s. 263 of the Act for A,Y. 2013-14. Since the order appealed against was received on 03.04.2018, the aforesaid appeal is belated by 191 days. We, therefore, beg to furnish the relevant facts leading to this delay with a fervent request for its condonation, 2. The assessment for the year under consideration was completed u/s, 143(3) of the Act on 29.03.2016 after due deliberations. The said order, however, was subjected to proceedings u/s. 263 of the Act and they were attended to by Shri Nilesh Y. Jagiwala, Partner of Jagiwala and Co,, Chartered Accountants on our behalf. Therefore, upon receipt of the order of the Id. Pr. CIT on 03.04.2018, it was, forwarded to Shri Nilesh Y. Jagiwala for study and advice. According to Shri Nilesh Y. jagiwala since the order passed u/s, 143(3) of the Act was set aside and a fresh order was directed to be passed vide !he concluding paragraph of the revision order, no action was requited to be taken thereon as we could agitate the consequential order which was to be passed by the Assessing Officer. 3, It is submitted that during the course of the....
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....delay must be explained' does not imply a pedantic approach. The doctrine must be applied in a rational, common sense and pragmatic manner................................................... When substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in injustice being done because of a non-deliberate delay." (ii) N_. Balakrishnan v, M. Ramamurthy [(1998) 7 SCC1231 "12. A court knows that refusal to condone delay would result in foreclosing a suitor form putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words 'sufficient cause' under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari(AIR 1969 SC 575) and State of W.B. v. Administrator, Howrah Municipality (AIR 1972 SC 949)". (iii) Vijay Vishin Meghani v. DCIT [398 ITR 250 (Bom)] "The assesses filed appeals with a delay of 2984 days before the Appellate Tribuna....
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....ment. The Tribunal was directed to restore the appeals of the assessee to its file for adjudication, on proof of cost of payments." [iv) Sonerao Sadashivrao Patil& Anr. v. Codaworibai [1999 (2) Mh. L.J 273] "The primary function of a court to is to adjudicate the disputes between the contesting parties and to advance substantial justice. The rules of limitation are not made to harm the valuable rights of the parties. The discretion is given to the Court to condone delay and admit the appeal in order that judicial power and discretion in that behalf should be exercised to advance substantial justice, ........................................,...-The requirement of explanation of every day's delay does not mean that a pedantic approach should be taken. The courts are required to take pragmatic approach while interpreting the concept of sufficient cause. Too much rigor of the law is not justice hut the denial of it, II is to be borne in mind the maxim 'Sumum Jus, Summa Injuria. Extreme law is extreme injury, in the waiter of condonation of delay, the duration of delay is insignificant, The Court has to take into account whether there is acceptable explanation ....
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.... Gupta Rice Mills v. CST [1993 91 STC 208 (All)] "It is pertinent of mention that by the assessment order under challenge the assessee was subjected to a disputed tax liability of Rs. 1,08,000. Looking to the stakes involved, it is difficult to believe that the assessee should have failed to file the appeal within time for the circumstances as beyond his control. In such matters monetary slakes involved and the importance of the issue raised, in m\f opinion, arc not totally irrelevant considerations that may also be taken notice of along with other relevant circumstances, in exercise of judicial discretion vested with the court or an authority in dealing with the question or condonation of delay. The court or authority is to strike a just and equitable balance between the rights secured by the respondents as a result of the expiry of the prescribed period of limitation and deprivation of the appellant in seeking adjudication of his grievance on merits of the appeal for causes beyond his reasonable control. It is more so in the fiscal statutes where the provisions relating to appeal etc can hardly be equated to lis or dispute as arises between the parties in a civil litigat....
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....only an attempt to circumvent the delay in filing the appeal, which cannot be accepted. 5. We have heard both the parties, perused the material available on record and gone through orders of the authorities below along with judicial decisions cited by both the parties. The Tribunal has powers to condone the delay in filing appeal after the expiry of the relevant period referred to in sub section (3) or sub section (4) of section 253 of the I.T.Act, 1961, if it is satisfied that there was sufficient cause for not presenting the appeal within that period. The words sufficient cause has not been defined under the Act, but various courts have interpreted to mean that there is reasons beyond the control of the assessee, which prevented the assesee to file appeal within the time prescribed under the Act, are considerable to be reasonable cause. Various courts have considered the reasons advanced by the assessee for not filing appeal within the time allowed under the Act, like ill health of the concerned assessee or his counsel, medical emergency, travel abroad or any other places, during the relevant period or some other emergency situations, which prevented the assessee to attend the....
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.... the same cannot be considered as wrong advise. In this case, as admitted by the assessee in its affidavit, the consultant, who represented the case before the AO was well aware of the law and facts of the assessee case that in consequential proceedings before the AO against order of the PCIT can be challenged and hence, no need to file appeal agaisnt order of the PCIT u/s 263 of the Act. Had it been a case of the assessee that as per the advise of the consultant there is no appeal lies against order of the PCIT u/s 263 of the Act and subsequently, it was advised by another counsel that appeal lies against order of the PCIT passed u/s 263 of the I.T.Act, 1961, then it can be said that the advise given by the consultant is wrong and assessee was on bonafide belief. But, fact of the matter is that both parites have taken conscious decision not to file appeal, because there is alternative remedy available to the assesee, even if the order of the PCIT is not challenged. 6. No doubt, the legislature has conferred power to condone delay by enacting section 5 of the limitation Act, 1963, in order to enable the courts to render substantial justice to parties by disposing of matters on m....
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.... allowed under the Act. The reasons shown by the assessee are neither sufficient nor bonafide, rather it is telltale from the facts on record that the assesee had conciously taken a decision not to prefer appeal agasint the impugned order passed under section 263 of the Act. If assssee decided to abandon his right to appeal, he canot be permitted to pursue that remedy again after considerable lapse of time, ulnless the reaons are bonafide. Finality of an order cannot be tinkered with at the whims of a party. We, therefore, are of the considered view that the reasons given by the assesee for not filing appeal within the time allowed under the Act, does not comes under the reasonable cause as provided under the Act, or as explained by the various courts and hence, we reject the application filed by the assesee for condonation of delay in filing appeal. 7. Coming to case laws relied upon by the assessee. The assessee has relied upon various judicial precedents including the decision of Hon'ble Supreme court , in the case of Collector of land acquisition vs Mst Katiji and others 167 ITR 471. We find that the facts of the case considered by the Hon'ble Supreme Court, the delay is onl....
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....depend on the facts of each case and no hard or fast rule can be laid down in this regard. In the above cited case, the application for condonation of delay in filing the appeal was 7 days. In the case of Ganga Sahai Ram Swarup V ITAT (2004) 271 ITR 512 (All) the delay was of 12 days in filing the appeal and it was held therein that a liberal view ought to be taken, as there was a delay of only a very short period. Even in the land mark decision on the issue of condonation, Collector, Land Acquisition V MST Katiji (supra), cited by the assessee, wherein the Hon'ble Apex Court laid down that courts should have a liberal and practical approach ITA Nos.1678 to 1681/Bang/2013 B. Surya Kumar in exercising its discretionary powers of condonation of delay, the delay was of 4 days. 5.2 According to the assessee after the impugned orders of the learned CIT(A) dt.21.3.2012 were served on the assessee on 9.5.2012, the assessee made an application under Section 154 of the Act dt.14.5.2012 to the CIT (Appeals) for rectification of his orders. The learned CIT(A) by order dt.9.7.2013 dismissed the assessee's application. Subsequent thereto, the assessee filed these appeals before....