TaxTMI 
TaxTMI 
2020 (3) TMI 1282
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....assessee. 2. The fact that the land sold was rural agricultural was ignored by the CIT(A). 4. At the outset, we observed that there was a delay of 1250 days in filing the appeals before the Tribunal. The Ld. AR has filed condonation petitions accompanied by affidavits stating the reasons for the delay in filing the appeals before the Tribunal. We shall consider the affidavit filed in the case of Shri Mathew Joseph which reads as follows: AFFIDAVIT "I, MATHEW JOSPEH, aged 45 years, S/o Late C.M. Joseph, residing at Biju Nivas, Kumaranalloor P.O., Kottayam District, Kerala State, India do hereby solemnly affirm and state as follows:- I was a Non Resident Indian holding a US Passport and settled in United States for the past 15 years till I returned to India in May, 2016. My mother Mariyamma Joseph and father C.M.Joseph were settled in Kottayam and were looking after the bar attached hotel in the name of my mother. My father, on behalf of me and my wife, had purchased Rubber Estate situated in Kakkanad, Ernakulam measuring 89.772 cents in the joint names of myself and my wife during the year 2004 vide two documents. ....
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.... by my father and the tax consultant. The aforesaid land was not taken as an "urban land" within the meaning of section 2 (ea) of the W T Act, therefore, not charged to Wealth Tax as per Wealth Tax Assessment made u/s 16 (3) for the A Y 2006-07. Myself and my wife returned to India in July, 2016 wounding up our business in U.S. I was new to the existing hotel business and the staff continued to manage the business and also payment of the tax in installments. When I noticed the huge demand still pending in respect of capital gains assessed Rs, 1,36,66,0007- for the A Y 2007-08 I gathered all details and met an advocate at Ernakulam who directed me to Advocate Anil D Nair. He only found that the land is situated outside the limits of the municipality and not liable to income tax. Immediately appeals were prepared and filed. There is a delay of 1250 days. The non filing was noticed only in last week of August, 2019. Immediately the documents and records were verified and the appeal is filed. There is a delay of 1250 days which was caused due to the above facts and there was no willful negligence on my part. ....
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....25-02-2014 Departure Kochi 34 22. 12-07-2014 Arrival Kochi 34 23 11-02-2016 Arrival Kochi 34 24. 22-02-2016 Departure Kochi 34 25. 18-05-2016 Arrival Kochi 32 26. 15-04-2017 Departure Kochi 32 27. 26-10-2017 Arrival Kochi 36 Details of travel dates as per passport of Smt. Jiby Mathew Sl. No Date Arvl Place Page 1. 08-02-2013 Departure Kochi 17 2. 08-02-2013 Arrival USA 17 3. 16-09-2013 Arrival Kochi 16 5. 16-09-2013 Departure Kochi 15 6. 13-03-2014 Arrival USA 15 7. 30-08-2014 Departure Kochi 18 8. 30-08-2014 Arrival USA 18 9. 18-05-2016 Arrival Kochi 17 10. 11-06-2017 Arrival Kochi 18 4.2 The Ld. AR submitted that the assessees came to know about the passing of the orders by the CIT(A) only when the Department required the assessees to make payment of outstanding demand in these cases. On one of such visits to Kerala, they approached earlier Counsel for the assessees, Shri Mathew Joseph, CA who stated that he had received the orde....
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....ear 2007-08 to Sabu Cyriac P on 05/08/2019. I. C.A. Mathew Joseph, the Deponent do hereby declare that what is stated above is true and correct to the best of my knowledge and belief. Sd/- C.A. Mathew Joseph Deponent Solemnly affirmed and signed before me by the deponent who is personally known to me on this 16th day of December, 2019." 4.3 The Ld. AR relied on the judgment of the Supreme Court in the case of Senior Bhosale Estate (HUF) vs. ACIT in Civil Appeal Nos. 6671-6676 of 2010 dated 16th November, 2019 wherein it was held that "condonation of delay of 1754 days: If the stand of the Applicant in the Affidavit that he had no knowledge about the passing of the order is not expressly refuted by the Respondent, the question of disbelieving the stand of the Applicant cannot arise. For this reason, indulgence should be shown to the Applicant by condoning the delay." 5. On the other hand, the Ld. DR submitted that the assessees had given the address of the earlier Counsel in Form No. 35 as the address to which the notice/order is to be served. The Ld. DR also submitted that the CIT(A) had duly served the appeal orders to the address....
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....fter hearing the parties. (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, commonsense and pragmatic manner. (4) 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 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. (6) It must be grasped that the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 6.2 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 vested right for ....
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....Madras High Court in the case of Sreenivas Charitable Trust (supra) held that no hard and fast rule can be laid down in the matter of condonation of delay and the Court should adopt a pragmatic approach and the Court should exercise their discretion on the facts of each case keeping in mind that in construing the expression "sufficient cause" the principle of advancing substantial justice is of prime importance and the expression "sufficient cause" should receive a liberal construction. Therefore, this Judgment of the Madras High Court (supra) clearly says that in order to advance substantial justice which is of prime importance, the expression "sufficient cause" should receive a liberal construction. In this case, the issue on merit regarding granting of deduction u/s. 80IB was covered in favour of the assessee by the Judgment of the Madras High Court. Therefore, for the purpose of advancing substantial justice which is of prime importance in the administration of justice, the expression "sufficient cause" should receive a liberal construction. In our opinion, this Judgment of the Madras High Court is also squarely applicable to the facts of this case. A similar view was taken by ....
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....able the courts to do substantial justice to parties by disposing of matters on merits. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice, for that is the life-purpose for the existence of the institution of courts. The learned Judges emphasized on adoption of a liberal approach while dealing with the applications for condonation of delay as ordinarily a litigant does not stand to benefit by lodging an appeal late and refusal to condone delay can result in a meritorious matter being thrown out at the very threshold and the cause of justice being defeated. It was stressed that there should not be a pedantic approach but the doctrine that is to be kept in mind is that the matter has to be dealt with in a rational commonsense pragmatic manner and cause of substantial justice deserves to be preferred over the technical considerations. It was also ruled that there is no presumption that delay is occasioned deliberately or on account of culpable negligence and that the courts are not supposed to legalise injustice on technical grounds as it is the duty of the....
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....escribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. Thereafter, the learned Judges proceeded to state that this Court has justifiably advocated adoption of liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate. (d) In Improvement Trust, Ludhiana v. Ujagar Singh and others(2010)(6 SCC 786), it has been held that while considering an application for condonation of delay no straitjacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not. It has been further stated therein that each case has to be weighed from its facts and the circumstances in which the party acts and behaves." 6.7 The principles that emanate from the above said decisions are that, in the matter of condonation of delay in filing appeals beyond the limitation period, the courts are empowered to condone the delay, provided the litigant is able to demonstrate that there was "sufficient cause" in pre....
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....ng a US Passport and settled in United States for the past 15 years till I returned to India in May, 2016. My mother Smt. Mariyamma Joseph and father Sri.C.M. Joseph were settled in Kottayam and were llooking after the bar attached hotel in the name of my mother. My father, on behalf of me and my wife, had purchased Rubber Estate| situated in Kakkanad, Ernakulam measuring 89.772 cents in the joint names of myself and my wife during the year 2004 vide two documents. Consequent to search in the premises of my parents, an agreement has been found evidencing the sale of the aforesaid 89.772 cents of land to NCC Urban Infrastructure Limited on 26.07.2006 for a consideration in cash of Rs. 2 crores together with built up area in the building to be constructed by the purchaser valued at 1.15 crores totaling the sale consideration at Rs. 3.15 crores. In response to the notice u/s. 153C my father, through his Chartered Accountant, had prepared and filed my return of income of the A Y 2007-08 disclosing total income Rs. 79,16,000/- being short term capital gain on transfer of 50% share in the aforesaid Rubber Estate in respect of the cash part of ....
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....ocate Anil D Nair. l He only found that the land is situated outside the limits of the municipality and not liable to income tax. On a perusal of the proceedings before the 1st appellate authority, it was noticed that there was no specific ground taken to the effect that the land is situated outside the limits of the municipality and therefore was entitled for exemption from capital gains tax. Therefore, an appeal was drawn up and since this issue was not agitated before the appellate authority, the additional ground is being filed in terms of the ratio of the judgment in Jute Corporation's case reported in 1991 AIR 241 (SC) and approved in NTPC reported in (1998) 229 ITR 383. It is therefore respectfully prayed that the Hon'ble Tribunal be pleased to take on record the additional ground and pass consequential orders. If orders as prayed for are not granted, the petitioner would be put to irreparable loss and hardship. It is therefore accordingly prayed. All what is stated above are true and correct." sd/- MATHEW JOSEPH Deponent Solemnly affirmed and signed before me by the depon....
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....the case of CIT vs. Mahalaxmi Sugar Mills Co. Ltd. (1993) 200 ITR 275 (Del), (ii) Hon'ble Bombay High Court in the case of Ahmedabad Electricity Co. Ltd. vs. CIT (1992) 106 CTR (Bom) 78 ; (1993) 199 ITR 351, 367 (Bom) and (iii) Hon'ble Rajasthan High Court in the case of Mewar Sugar Mills Ltd. vs. CIT (1993) 203 ITR 415 (Raj). Hon'ble Bombay High Court in the case of Baby Samuel vs. Asstt, CIT (2003) 184 CTR (Bom) 140 : (2003) 262 ITR 385 (Bom) has held that when an issue was not specifically taken in the memorandum and grounds of appeal but mentioned in the written submissions filed before the Tribunal and specifically argued at the time of the final hearing of the appeal, the Tribunal cannot refuse to adjudicate upon that issue on the merits of the ground that no such ground has been taken specifically in the grounds of appeal. Hon'ble Supreme Court in the case of National Thermal Power Co. Ltd. (supra) has held : "...The power of the Tribunal in dealing with appeals is thus expressed in the widest possible terms. The purpose of assessment proceedings before the taxing authorities is to assess correctly the tax liability of an assessee in accordance with ....