TaxTMI 
TaxTMI 
1993 (8) TMI 91
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....ection 253 of the Income-tax Act, 1961, the assessee was entitled to file memorandum of cross objections within 30 days from the date of receipt of the appeal papers from the Tribunal. However, the cross-objections were filed on 18-5-1992. Thus, there is a delay of 518 days in filing the cross-objections. The cross-objections mainly dispute the disallowance under section 37(3B) in respect of expenditure on running and maintenance of motor car and expenditure on Diwali cards and posters considered as sales promotion expenses for the purpose of disallowance under section 37(3A) of the Act. The appeals filed by the revenue as well as the cross-objections filed by the assessee were fixed for hearing on 23-8-1993. While the appeals filed by the revenue were heard and disposed of, the cross objections being barred by time were not heard on merits and the counsel appearing on behalf of the assessee was directed to advance arguments regarding the causes for the delay in filing the cross objections. The assessee's counsel Shri S.N. Soparkar submitted that the assessee came to know from the order of the ITAT Ahmedabad Bench in IT Appeal No. 1410/Ahd/1988 for assessment year 1984-85 reported ....
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.... grievance affecting the assessee. The revision petition was belatedly filed and the Commissioner of Income-tax declined to condone the delay and dismissed the revision petition. Being aggrieved, the assessee-company filed a writ petition before the Hon'ble Gujarat High Court averring that the assessee became aware of the true legal position in respect of its grievance only after the pronouncement of judgment by the Supreme Court and since the decision of the Supreme Court amounted to declaration of law as per article 141 of the Constitution of India and such declaration having retrospective effect in law, the assessee was entitled to get its grievance redressed through revision proceedings under section 264 of the IT Act before the Commissioner and the Commissioner ought to have condoned the delay on this ground. The Hon'ble Gujarat High Court after considering the facts and the merits of the case held as under : "The decision of the Supreme Court amounted to a declaration of law as contemplated by article 141 of the Constitution of India. This declaration of law had retrospective effect and rendered the assessment of the expenditure in connection with the debentures illegal, b....
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....he assessee raised the dispute before the authority, or paid the tax under a mutual mistake. Therefore, the Tribunal was right in holding that the assessees had sufficient cause for not filing the appeals within the time prescribed, and in holding that the delay ought to have been condoned." 4.2 Similar view was taken by the Calcutta High Court in the case of Sothia Mining & Mfg. Corpn. Ltd. that after decision of the Supreme Court if an appeal is preferred, then the delay has to be condoned for this reason. The Supreme Court while deciding the case of Mst. Katiji has laid down as under : "Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step-motherly treatment when the 'State' is the applicant praying for condonation of delay. In fact, experience shows t....
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....pound law. The Tribunal only acts as a medium or instrument under the relevant provisions of the tax laws for declaration of law by Supreme Court or for that matter by the appropriate jurisdictional High Court. If the delay is condoned in the instant case on the strength of an earlier decision of Ahmedabad Bench of the Tribunal as stated in the condonation petition and if at a later stage, the same is upset or reversed either by the Jurisdictional High Court or by the Apex Court, then it will amount to condonation of delay without there being a reasonable cause and the opposite side will be prejudiced on account of this act of the Tribunal. The Gujarat, Andhra Pradesh and Calcutta High Courts in the cases referred to above have laid down that after the decision of the Supreme Court, an assessee is entitled to file appeal or revision petition though belatedly before the concerned authorities, because the decision/judgment of the Supreme Court amounts to declaration of law of the land as per article 141 of the Constitution of India. Same cannot be said about the decisions rendered by this Tribunal though it is a judicial body and performs the judicial functions of the State in vettin....