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2005 (10) TMI 228 - ITAT DELHI-AForm Of Appeal And Limitations - condonation of delay - liability to deduct any tax at source - HELD THAT:- It is not a case where the assessee could expect to have derived any mileage on account of the matter getting delayed. The delay in filing of appeals has caused prejudice to no one else except the assessee himself. When we keep these facts in mind, the bona fide of the assessee is not in doubt. Sufficient cause and bona fide go hand in hand. If the assessee has acted bona fide, the reasons for delay, in the absence of any material to the contrary, should be construed to be reasonable. After having made full payment to Lufthansa A.G. and at the same time met the requirements of the Assessing Officer the assessee obviously put itself in an unenviable position. The argument of the assessee is that it received legal advice that the matter should be approached by seeking to have completion of the assessment of the nonresident on the basis that no part of the income of the non-resident was chargeable to tax in India. It is settled legal position that any delay caused on account of legal advice received or while pursuing an abortive remedy should be treated as sufficient cause. There was change in management, there were financial difficulties and so on. On a pragmatic appreciation of the matter we are of the view that the assessee can be said to have been prevented by a sufficient cause from filing the appeals on a date earlier than the same were filed before the learned CIT (Appeals). At the same time we direct that the assessee would not be entitled to payment of any interest, etc., for the period of this delay and while calculating interest payable to the assessee, if any, the period of delay in filing the appeal before the CIT(A) shall be excluded. We, therefore, hold that as the assessee was prevented by sufficient cause from filing the appeals in time before the learned CIT (Appeals), the learned CIT (Appeals) erred in rejecting the assessee's appeals in limine. We further direct that the assessee shall not be entitled to payment of interest for the period of delay and while calculating interest payable to the assessee, if any, the period of this delay shall be excluded. Since on merits of the case the issue has been decided by the Tribunal after consideration of the matter at length on more than one occasion and since no distinguishing features have been brought to our notice, we hold that no useful purpose would be served to restore the matter for adjudication afresh by the learned CIT (Appeals). We, therefore, respectfully following the orders of the Tribunal in the assessee's own cases hold that the payments made by the assessee in relation to the appeals in question before us to Lufthansa A.G. are not chargeable to tax in India and, accordingly, the learned Assessing Officer was not justified in insisting upon the payment of TDS by the assessee before issue of No Objection Certificate. In the result, all the 19 appeals are allowed.
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