TMI Blog1995 (9) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... y the NHPC. The assessee was liable for any tax due on self-assessment pursuant to application of r. 115 of the IT Rules. The assessee paid an amount of Rs. 1,62,773 towards the tax on self-assessment as a result of application of r. 115. On the basis of the decision in the case of Chowgule Co. vs. CIT (1992) 195 ITR 810 (Bom) holding that r. 115(c) of the IT Rules was ultra vires and beyond the scope of the provisions of the IT Act, the assessee sought refund of the tax paid on self-assessment by filing a belated appeal, as on the date of the said decision itself, limitation for filing the first appeal ran out. The CIT(A), therefore, dismissed the appeal as time-barred. Hence, the instant second appeal by the assessee before us. 3. The learned counsel for the assessee submitted that: The CIT(A) erred on facts and in law in not condoning the delay in filing the appeal but dismissing it as out of time. True, the appeal is late by one year in as much as the order was shown in the appeal memo before the CIT(A) to have been served upon the assessee on22nd October, 1991when the appeal was filed on23rd Nov., 1992. However, an application for condonation of delay was filed mentioning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of application (sic) cast upon it on account of special agreement with NHPC, that the year ended 31st March, 1990, was the first year of operation of the assessee in India, that the decision of the Hon'ble Bombay High Court in the case of Chowgule Co. Ltd. cited supra was not available when the assessment was finalised and when the appeal was also due for filing, that the CIT(A) did not consider the issue regarding the applicability of the rule of law on merits but dismissed the appeal for the reason that it was filed out of time, that the assessee, therefore, filed the second appeal before the Tribunal on 29th Dec., 1993, against the order of the CIT(A), that the Assessing Officer meanwhile in subsequent years following its order for asst. yr. 1990-91 calculated the assessee's income by applying r. 115 which has been further diluted by the IT (9th Amendment) Rules, 1993, coming into force w.e.f. 25th May, 1993, that the action of the Assessing Officer in applying rule without appreciation of facts of law as resulted in additional demand against the assessee causing avoidable harassment to it, that the assessee, a foreign company is not certain about its exposure to tax in India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue which was initially thought to be settled is later decided in favour of the assessee by High Court, the assessee would not become entitled to file belated appeals for claiming the benefit of the judgment particularly when the judgment is not of the jurisdictional High Court, is correct or not. Insofar as the decision in the case of Thakar Dass Vishan Dass cited supra relied upon by the assessee, the Delhi Bench of the Tribunal held that as the Madras High Court in A.M. Sali Maicar vs. ITO (1973) 90 ITR 116 (Mad) has struck down s. 140A(3), the said provision can legitimately be treated as non-existent and ultimately the penalty in question was not sustained by it. In our opinion, only from the viewpoint of condonation of delay but not on the judicial principle of considering other High Court decision is concerned this decision would be distinguishable to the instant case as that was a decision when that decision of the Hon'ble Madras High Court was in existence even prior to the disposal of the appeal by the Tribunal, unlike in the instant case where the decision of the Hon'ble Bombay High Court in the case of Chowgule Co. Ltd. which is heavily relied upon by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d faith which is not done with due care and attention and the words sufficient cause should be liberally construed so as to advance a substantial justice when no negligence or any inaction or want of bona fide is imputable to the party, according to well settled propositions of law. In the instance case, we are of the considered opinion that only due to the bona fide reasons, the assessee, a foreign company could not file the appeal in time which is further discussed hereinafter below and that, therefore, the assessee should not be denied of being heard on its merits and rejected by merely on grounds of technicalities. In the case of Venkata Ramana Chuduva decided by the Hon'ble Andhra Pradesh High Court, however, holds that where the decision of the High Court in Nooka Agaiah 39 STC 521 was not rendered, much less reported by the date of receipt of the assessment orders by the assessees and both the judgments of the High Court and the Supreme Court were rendered long after the period of limitation for filing the appeals in their case expired and the assessees filed appeals after the decision of the Supreme Court with a petition to condone the delay, it could not be said that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me up before us for our scrutiny in the second appeal, the decision of the Hon'ble Gujarat High Court also in the case of Karam Chand Prem Chand Pvt. Ltd. cited supra relied upon by the assessee heavily comes to its rescue in our considered opinion. In that case, the assessee did not claim deduction in assessment on the basis of law as propounded by the High Court, but the later decision of the Supreme Court permitted the deduction and therefore revision petition to the CIT was filed based on law as later expounded by the Supreme Court even though that petition was time-barred. The questions arose as to whether there was sufficient cause to excuse such delay and whether the CIT was right in refusing to excuse such delay, such refusal to exercise the discretion was also judicious in a writ petition before the Hon'ble Gujarat High Court. The Gujarat High Court ultimately maintained the writ petition by holding that the petition for rectification of assessment was sustainable and that, therefore, the revision petition was not barred by time as the delay in preferring the application before the CIT was rightly condoned and that the CIT was directed to proceed further in the matter and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by 3-1/2 months approximately from the last date of filing the appeal, i.e., 21st Nov., 1991, upto the date of judgment of the Hon'ble Bombay High Court which is 4th March, 1992, is a bona fide one constituting sufficient cause preventing the assessee in filing the appeal before CIT(A). Now, coming to the period of delay caused subsequent to the date of delivery of the aforesaid judgment of 4th March, 1992, until the date of filing the first appeal before the CIT(A) on 24th Nov., 1992, it was submitted before us that the aforesaid decision of the Hon'ble Bombay High Court was reported in the law journal on 24th Aug., 1992, which was brought to the notice of the assessee thereafter. If it would have been reported in the journal on24th Aug., 1992, normally about a week or two may be taken for reaching the hands of even a regular law journal subscriber. In fact, it has been held by the decision in the case of S. Ratnam Pillay vs. ITO (1987) 20 ITD 578 (Coch) that in view of the decision in the case of Asia Tobacco Co. Ltd. vs. Union of India (1985) 45 CTR (Mad) 306 : (1985) 155 ITR 568 (Mad), the notification dt. 29th March, 1987, in that case was effective for the assessee as well ..... X X X X Extracts X X X X X X X X Extracts X X X X
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