TMI Blog2006 (8) TMI 660X X X X Extracts X X X X X X X X Extracts X X X X ..... - HELD THAT:- The reason for the delay has been attributed by the Department that there were some administrative reasons for this small delay. Considering the circumstances and hearing the counsel, the appeal is condoned. Disallowance made under Section 43B in respect of PF and ESI - HELD THAT:- In this case, the payments were made within the grace period allowed under the respective enactments. The same is covered in favour of the assessee by the Hon'ble jurisdictional High Court decision in CIT v. Shri Ganapathy Mills Co. Ltd. [ 1999 (2) TMI 26 - MADRAS HIGH COURT ] - the Revenue's appeal is dismissed. Condonation of delay in filing of the appeal by 310 days - No cogent reasons produced - HELD THAT:- There was a difference of opinion amongst the Members of the Bench and the following question was answered by the Third Member: Whether, in the facts and circumstances of the case, there is sufficient cause on the part of the assessee for not filing the appeal within the period of limitation? The Hon'ble Vice President, Shri M.K. Chaturvedi sitting as Third Member vide his order dt. 11th Aug., 2006 has concurred with the view of the AM. Therefore, in accordance with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , this delay of 310 days was attributed to the misplacement of the papers. 8. We find that Hon'ble jurisdictional High Court has considered the issue of condonation of delay and expounded as under in Sreenivas Charitable Trust v. Dy CIT No hard and fast rule can be laid down in the matter of condonation of delay and Courts should adopt a pragmatic approach and 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. Held, that it was stated in the petition filed by the assessee for condonation of delay that the order copy was misplaced and thereafter it was found and sent to counsel for preparing the appeal and then, the appeal was prepared and filed before the Tribunal and in that process, the delay of 38 days occurred. The Tribunal was not right in dismissing the appeal as barred by limitation. The delay in filing the appeal before the Tribunal had to be condoned. 9. In the aforesaid case, the delay was that of 38 days and in considering the issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not be exported to be interpolated as precedent with complete disregard of the context. 14. Considering the present case on the anvil of aforesaid expositions, we find that delay of 310 days on account of misplacement of the documents is undoubtedly an inordinate delay. As we find in Oxford English Dictionary, the term inordinate is an adjective meaning unusually large, excessive . It is seen from the above expositions that the pragmatic approach to condonation of delay has always been advocated when the delay is short. By no means, the aforesaid exposition means, that in construing the expression, 'sufficient cause' while advancing the cause of 'substantial justice', the period of delay has to be absolutely ignored. This is more so when the cause attributable for the delay is misplacement of record. 15. Moreover, as regards the issues raised, for one issue of inclusion of sales-tax and excise duty in total turnover for the purposes of deduction under Section 80HHC, it has been claimed that the same is covered by jurisdictional High Court decision. It is noted here that at the time of adjudication on that issue by the CIT(A) or up to the time of filing the appeal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision in CIT v. Shri Ganapathy Mills Co. Ltd. 22. In the result, the Revenue's appeal is dismissed. 23. Hence, assessee's appeals ITA Nos. 1916/Mad/1999 is partly allowed and ITA No. 1509/Mad/1999 is dismissed and Revenue's appeal No. 1897/Mad/1999 is dismissed. N.R.S. Ganesan, J.M. 26th April, 2006 1. I had the benefit of going through the draft order prepared by learned brother, the AM. I entirely agree with his reasoning and conclusion in respect of ITA Nos. 1897/Mad/1999 and 1916/Mad/1999. However, I am unable to persuade myself to agree in respect of his reasoning and conclusion in ITA No. 1509/Mad/1999. Therefore, I am constrained to pass a separate and dissenting order. 2. In this case, admittedly, there is a delay of 310 days in filing the appeal. The assessee filed an affidavit explaining the reasons and prayed for condonation of delay. The reason stated by the assessee is misplacement of papers with some other papers. Therefore, we have to consider whether the misplacement of papers with some other papers is sufficient cause for condoning the delay. The Madras High Court considered an identical issue in the case of Sreenivas Charitable Trust v. Dy. CIT and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred, 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. 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 for injustice being done because of nondeliberate delay. In the case on our hand, the issue on merit regarding inclusion of excise duty and sales-tax in the total turnover was covered in favour of the assessee by the binding Judgment of the jurisdictional High Court. Moreover, no counter-affidavit was filed by the Revenue denying the allegation made by the assessee. It is not the case of the Revenue that the appeal was not filed deliberately. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty to the abovesaid order of this Tribunal. 6. I have also carefully gone through Judgment of the Madras High Court in the case of Sreenivas Charitable Trust (supra). The Madras High Court 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 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 inclusion of excise duty and sales-tax in the total turnover is covered in favour of the assessee by the Judgment of the jurisdictional 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 constructio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... done the delay of 310 days in filing the appeal and admit the appeal. 10. Now coming to merit of the case, the first ground of appeal is regarding inclusion of excise duty and sales-tax in the total turnover for the purpose of deduction under Section 80HHC. Admittedly, the jurisdictional High Court in the case of CIT v. Sundaiam Fasteners Ltd. (supra) and CIT v. Wheels India Ltd. (supra) elaborately considered this issue and held that excise duty and sales-tax should not be included in the total turnover for the purpose of deduction under Section 80HHC . Therefore, by respectfully following the Judgment of the jurisdictional High Court, the orders of the lower authorities are set aside and the AO' is directed to exclude the excise duty and sales-tax from the total turnover for the purpose of deduction under Section 80HHC. 11. The assessee has raised one more ground regarding exclusion of 90 per cent of miscellaneous receipts from profit for the purpose of computation of deduction under Section 80HHC. The learned Counsel for the assessee submitted that the assessee has raised specific ground before the CIT(A) in ground No. 14. However, the same was not disposed of. When the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered in favour of the assessee? Question as proposed by the AM Whether, in the facts and circumstances of the case, there is sufficient cause on the part of the assessee for not filing the appeal within the period of limitation? At the outset to resolve the controversy on the setting of the questions, I heard both the parties. On question No. 1 there is no controversy. Both the learned Members referred the same question. In my opinion the issue involved in the present appeal can be adjudicated with reference to the first question only. I, therefore, proceed to decide the first question. 2. Admittedly there was a delay in filing the appeal by 310 days. In explaining the delay Shri M.L.S. Rao, director of the assessee-company filed an affidavit dt. 28th Sept., 2005, which reads as under: I, M.L.S. Rao, son of Sri M.N. Lakshmana Rao, Hindu, residing at 7/1, Aaddler Road, Kilpauk, Chennai-600 010 do hereby solemnly and sincerely state as follows: 1. I am the director of the appellant and am well acquainted with the facts of the case. 2. I state that the original order of the first appellate authority was received on 8th Oct., 1998. I state that appeal against that order ought to have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for condonation of delay. Hence the Collector of Land Acquisition filed appeal by special leave before the apex Court. The Hon'ble Supreme Court held that 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 that on account of an impersonal machinery and the 'inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve litigant non-giata status. The Courts, therefore, have to be informed of the spirit and philosophy of the provision in the course of the interpretation of the expression sufficient cause'. So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even-handed justice on merits in preference to the approach which settles a decision on merits. On facts it was found that there existed sufficient cause for the delay. Therefore the order of the High Court dismissing the appeal before i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause within the contemplation of the limitation provision must be a cause which is beyond the control of the party invoking the aid of the provisions. The Hon'ble Supreme Court in the case of Ramlal v. Rewa Coalfields Ltd. has held that the cause for the delay in filing the appeal which by due care and attention could have been avoided cannot be a sufficient cause within the meaning of the limitation provision. Where no negligence, nor inaction, or want of bona fides 'can be imputed to the appellant a liberal construction of the provisions has to be made in order to advance substantial justice. Seekers of justice must come with clean hands. 8. In the present case I find that the assessee justified the delay only with reference to the affidavit of Shri M.L.S. Rao, director of the company. In the said affidavit Mr. Rao stated that the CIT(A)'s order was misplaced and forgotten. It was found while sorting out the unwanted papers. Thereafter steps were taken for the preparation of the appeal. Consequently the delay was caused. This clearly shows that the delay was due to the negligence and inaction on the part of the assessee. The assessee could have very well avoided the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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