TaxTMI 
TaxTMI 
2022 (7) TMI 555
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....s in AY 2009-10 are treated as lead case. The assessee raised the following grounds of appeal: "1. On the facts and in the circumstances of the case as well as law on the subject, the ld Commissioner of income tax (Appeals) has eared in confirming the action of penalty of assessing officer in levying penalty of Rs. 3,71,643/- under section 271(1)(c) of the I T Act. 2. It is therefore prayedthat the above penalty may please be deleted as the learned members of the Tribunal may deem it proper. 3. The appellant craves leave to add, amend, alter, delete/change or modify any or all the grounds ofappeal at the time of hearing." 2. Perusal of record shows that the order impugned in these appeals was passed on 26.07.2017, however, the appeals were filed only on 26.02.2020, thus there is delay of 876 days in filing the appeals. The assessee has filed an application for seeking condonation of delay in filling all three appeals. The application if supported with the affidavit of the assessee. In the application, the applicant/ assessee fairly submitted that impugned order was served on the assessee on 04.08.2017 and he was required to file appeal on or before 03.....
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....hai Brahmbhatt Vs Hitesh Jayantibhai Patel SCA No. 6547 of 2020 (Gujarat High Court), • Indian Home Pipe Company Ltd. Vs Gujarat Industrial Development Corporation & others SCA No. 10173 of 2018 (Gujarat High Court) and • Nandlal Namdev Otwani Vs Vijai Jaiprakash Ahuja C.A No. 941 of 2020 (Gujarat High Court). 5. On the other hand the learned Senior departmental representative (ld Sr DR) for the revenue after going through the contents of the application for condonation of delay and the medical prescription of accountant of the assessee would submits that the Bench may take decisions as per law. 6. We have considered the rival submissions of the parties and perused the relevant medical record of the accountant of the assessee. On perusal of the copies of the medical papers filed with the application of condonation of delay in filing present appeals, we find that the assessee has shown sufficient cause that he was prevented in filing the present appeals in time due to the sickness of his accountant who was handling his tax matters, which require consideration. The ld AR for the assessee while making submissions vehemently submitted that the delay in f....
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.... During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 8. The Hon'ble Apex Court in Collector of Land Acquisition Vs Mst Katiji (supra) held that when substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserve to be preferred, the other side cannot claim to have vested right in injustice being done because of non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence or on account of mala f....
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....nalty was levied by assessing officer under section 271(1)(c) has been deleted by Tribunal in appeal in the quantum assessment vide order dated 14.02.2020 in ITA (s) No. 1535, 1536 & 1537/Ahd/2017, copy of which is filed on record. The ld AR for the assessee submits that the Tribunal while allowing the appeal of the assessee allowed the set off of loss claimed by the assessee against the undisclosed income. The ld AR for the assessee submits that it is settled position under the law that once, the additions on the basis of which penalty is levied, is deleted, the order of penalty order will not survive. 13. On the other hand the ld. Sr. DR for the Revenue submits that the assessee that the assessing officer may be directed to verify the facts and modify the penalty order to the extent the additions/ set off of loss was not allowed by the Tribunal. 14. We have considered the rival submission of both the parties and have gone through the orders of Lower Authorities. We find that in the appeals in quantum assessment our predecessor has passed the following order in ITA No. 1535 to 1537/Ahd/2017; "10. We have heard both the Counsels and perused the material placed on rec....
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....er any other head other than 'salaries', set off to be under Section 71 of the Act." 15. We have also considered the decision in the case of Hon'ble Supreme Court in the case of CIT Vs. D.P.Sandu Bros. [2005] Taxman 713 (SC) wherein it has been held that section 14 and section 56 of the Act constitutes of complete code for the purpose of determining under which head of particular income would be taxed. 16. We have also considered the decision of Hon'ble Madras High Court in para no.10 and page 6 of the order of the ld.AO has held as under: "................... The income-tax is only one tax and levied on the sum total on the income classified and chargeable under various heads. Section 14 has classified different heads of income and income under each head is separately computed. Income which is computed in accordance with law is one income and it is not collection of distinct tax levied separately on each heads of income and it is not an aggregate of various taxes computed with reference to each of the different source separately. There is only one assessment and the same is made after the total income has been ascertained. The assessee is....
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....of various taxes computed with reference to each of the different sources separately. There is only one assessment and the same is made after the total income has been ascertained. The assessee is subject to income-tax on his total income though his income under each head may be well below the taxable limit. Hence the loss sustained in any year under any heads of income will have to be set off against income under any other head. In this case, the Assessing Officer made addition of Rs. 28,50,000/- as undisclosed income under Section 69 of the Act. Once the loss is determined, the same should be set off against the income determined under any other head of income. The benefit provided under Section 71 of the Act cannot be denied " ". In our opinion, the statutory provisions contained in Section 71 was applicable in the present case. By applying the decision in the case of Fakir Mohmed Haji Hasan as explained in the case of Deputy Commissioner of Income- tax vs. Radhe Developers India Ltd., the same cannot be declined..............." 19. We have also considered the administrative instructions for guidance of Income Tax Officers on the matters pertaining to the asses....