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2006 (8) TMI 277 - AT - Income TaxPowers of Appellate Tribunal - condonation of delay of 310 days - misplacement of the documents - Deduction u/s 80HHC - inclusion of sales tax and excise duty in total turnover - difference of opinion between ld Members - Third Member Order - Whether there is sufficient cause on the part of the assessee for not filing the appeal within the period of limitation? - Learned Accountant Member - HELD THAT:- We are of the opinion that an inordinate delay of 310 days cannot be condoned on the plea that the documents were misplaced. As the condonation in the present case would not be in accordance with the exposition emanating out of the Hon'ble Apex Court & Hon'ble Jurisdictional High Court decisions cited supra. It will rather be grave prejudice to the revenue. As already expressed by the Apex Court in the case cited supra that the State is also a litigant and need not be given a step motherly treatment. In this context, the decision of Hon'ble Punjab & Haryana High Court in the case of CIT v. Ram Mohan Kabra [1999 (1) TMI 4 - PUNJAB AND HARYANA HIGH COURT] is relevant. Thus, we are of the opinion that in the present case, the cause of substantial justice would not be served by condoning the inordinate delay of 310 days for which no cogent reason has been given. In the result, the assessee's appeal is dismissed. Judicial Member - The power given to the Tribunal is not to legalise an injustice on technical ground but to do substantial justice by removing the injustice. The Parliament conferred power on this Tribunal with the intention that this Tribunal would deliver justice rather than legalise injustice on technicalities. Therefore, when this Tribunal was empowered and capable of removing injustice, in my opinion, the delay of 310 days has to be condoned and the appeal of the assessee has to be admitted and disposed of on merit. Thus, I condone the delay of 310 days in filing the appeal and admit the appeal. Third Member - The sufficient cause 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. [1961 (5) TMI 54 - SUPREME COURT] 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. 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 Commissioner (Appeals)'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 delay by the exercise of due care and attention. In my opinion there exists no sufficient and good reason for the delay of 310 days. I, therefore, concur with the reasonings adduced by the ld AM. The matter will now go before the regular Bench for deciding the appeal in accordance with the majority opinion. The Hon'ble Vice President, Third Member vide his order has concurred with the view of the Accountant Member. Therefore, in accordance with the majority view, the issue is decided against the assessee and the appeal of the assessee is dismissed.
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