TMI Blog2012 (11) TMI 1130X X X X Extracts X X X X X X X X Extracts X X X X ..... income of the appellant without considering the fact that for the earlier years, th e Hon ble Income-tax Appellate Tribunal held that the said reimbursable expenditure does not represent income of the appellant. 3. The Assessing Officer erred in taxing the assess ee in respect of the income derived from the projects sta rted before 1.4.2003 at 20% as against the rate applicab le of 15%. At the outset, we note that these appeals were file d on 12.6.2012 by the assessee with a delay of 175 days. The assessee has filed a petition seeking condonation o f delay which is also accompanied by a sworn affidavit by the aut horised person. The petition submitted by the assessee rea ds as under: PETITION REQUESTING FOR CONDONATION OF DELAY The petitioner herein is a foreign company incorpor ated under the laws of the United States of America. It renders consultancy services in India in respect of various road projects and other public infrastructu re projects. For the assessment year under considerati on, the return of income was processed u/s 143(1) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce with the directions of the DRP, the Assessing officer passed the assessment order u/s 1 43(3) r.w.s. 147 r.w.s. 144C of the I.T. Act on 14.10.201 1. The said order of assessment was served on 21.10.2011. The Hon'ble DRP in their directions expressed that in ca se the petition u/s 260A is admitted by the Hon'ble High Court, the department has to pass the order and in case th e Hon'ble High Court has rejected the 260A petition, it may be considered to file a Miscellaneous petition before the DRP. The Assessing Officer in the assessment or der passed u/s 143(3) r.w.s. 144C, has not made any men tion about the status of the appeal filed by the departm ent before the Hon'ble High Court. The petitioner was u nder the bona-fide impression that no appeal need be fil ed before the Hon'ble ITAT against the order u/s 143(3 ) r.w.s. 144C of the I.T. Act pending the decision of the Hon'ble High Court on the admission of the appeal f iled by the department. Further, the provisions u/s 144C before the Dispute Resolution Panel are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heavily relied on the following principles: 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned, the highest that can happen is that a cause would be decided on the merits after 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 common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, 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 occasione d deliberately, or on account of culpable negligence, or on acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aucratic setup involving redtapism. In the same decision, this court directe d the State to constitute legal cells to examine whet her any legal principles are involved for decision by t he courts or whether cases required adjustment at Governmental level. (iv) In State of u. P. v. Harish Chandra [1996] 9 SCC 30 9, by giving similar reasons, as mentioned in Chandra Mani's case (supra) this court, condoned the delay of 480 days in filing the special leave petition. (v) In National insurance Co. Ltd. v. Giga Ram [2002] 1 0 SCC 176 , this court, after finding that the High Court was not justified in taking too technical a view of the facts and refusing to condone the delay, accepted t he case of the appellant-insurance company by protecting the interest of the condoned the delay. It is relevant to point out that while accepting the stan d of the insurance company for the delay, this court has safeguarded the interest of the claiming also. Adverting to the facts of the present case, it is s een that on account of bona-fide impression that no appeal n eed to be filed before the Hon ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s issue came for consideration before this Tribunal in assessee s own case in ITA No. 1073 1 074/Hyd/04 for A.Ys. 2000-01 and 2001-02 and ITA Nos. 720 72 5/Hyd/08 dated 30 th January, 2010 for A.Ys. 2002-03 wherein held as follows: 7. We find that in assessee s own case the Hon bl e ITAT vide its order dated 30.6.2010 in ITA Nos. 1073 1074/Hyd/2004 for the assessment years 2000-01, 2001-02 and in ITA Nos. 720 721/Hyd/2005 dated 30.6.2010 for the assessment years 2002-03 and 2003 - 04 has held as follows: We have also carefully gone through the judgement of the Bombay High Court in CIT Vs. Tanubai D. Desai (1972) 84 ITR 713. In the case before the Bombay H igh Court, the assessee was a practising solicitor. In the course of carrying on his profession the assessee u sed to receive money from or on behalf of his clients. Th e money received was deposited by him in separate cur rent account with Imperial Bank of India. Subsequently the assessee withdrew a sum of ₹ 3.25 lakhs and place d the same in fixed deposit with Chartered Bank. The asse ssee renew ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Tribu nal for earlier year (cited supra) we are inclined to allow the ground taken by the assessee for these assessment years al so as the facts and circumstances of the present assessment y ears before us are similar to that was considered by this Tribu nal in earlier assessment years. This ground of the assessee is allowed in all the three appeals i.e., ITA Nos. 937 to 939/Hyd/201 2, Now coming to the second ground that the Assessing Officer erred in taxing the assessee in respect of income derived from the project started before 1.4.2003 at 20% as against the rate applicable at 15%, this ground is also adjudi cated in the earlier order of the Tribunal in assessee s own cas e in ITA No. 1250/Hyd/2011 dated 25 th October, 2011 for assessment year 2006-07 wherein it was held that the fee for techni cal services falls under Article 12 of DTAA and not under articl e 7 of DTAA and tax has to be levied at 15%. Respectfully foll owing the above order of the Tribunal for A.Y. 2006-07, we ar e inclined to allow the ground taken by the assessee. In the result, appeals of the as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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