TMI Blog2012 (11) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... bsequent decision by the Special Bench of the Tribunal has enlightened the assessee to knock the doors before the appellate authority for justice. In these circumstances, the request of the assessee for the delay of condonation for all the assessment years seems to be reasonable and justifiable. Therefore, in the interest of justice, we hereby condone the delay in filing the appeals before the ld. CIT(A) by the assessee and remit back the issues before the ld. CIT(A) to decide the case as per law and merit. - appeals of the assessee are allowed - ITA Nos. 1829 to 1831-Ahd/2010 - - - Dated:- 13-1-2012 - Shri D.K.Tyagi Shri A.Mohan Alankamony, JJ. Appellant By : Shri Sunil Kedia, A.R. Respondent By : Shri Vinod Tanwani, Sr.D.R. Order Per Shri A.Mohan Alankamony, Accountant Member : The assessee has preferred these three appeals aggrieved by the order of the Learned Commissioner of Income Tax(Appeals)-II, Surat in Appeal Nos.CAS/II/159/09-10, CAS/II/187/09-10 CAS/II/188/09-10 all dated 30.03.2010 for the assessment years 2001-2002, 2003-2004 and 2004-2005 respectively passed under section 250 r.w.s. 143(3) of the I.T. Act, 1961. Since all the appeals pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment in the case of Topman Exports. 3. The assessee has raised identical two grounds in all these three appeals with respect to condonation of delay in filing the appeal before the ld. CIT(A). The assessee is a firm engaged in the business of export of art silk fabrics, filed the return of income for the assessment years 2001-02, 2003-04 and 2004-05 on 29.10.2001, 29.11.2003 and 28.12.2004 respectively. Subsequently, assessment orders were passed under section 143(3) of the Act r.w.s. 147 of the Act for all these three years on 14.12.2007, 07.02.2006 and 25.11.2006 respectively. Against the respective assessment orders, the assessee filed appeals on 28.05.2010 for the assessment years 2001-02, 2003-04 and 2004-05, along with request for condonation of deley. There was a delay of 1 year 10 months and 16 days for the assessment year 2001-02, 3 years 8 months and 15 days for the assessment year 2003-04 and 2 years 11 months and 13 days for the assessment year 2004-05. The assessee had submitted before the ld. CIT(Appeals) that the reason for delay in filing the return was because of the wrong advise given by the assessee s counsels that not to pursue the additions/ disallowances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because the Assessee's case is covered by a subsequent decision of another appellate authority and hence, calls for sympathy and benevolence to be meted out to the Assessee seeking relief. 4.8 Given the facts of the Assessee's case, and placing reliance on the cases of Venkatesa Paper Boards Ltd. (supra) and A.N.Mafatlal HUF (supra) is held that the Assessee was not prevented by sufficient and reasonable cause as envisaged u/s 249(3), from not presenting the appeal within the period prescribed u/s 249(2) of the IT Act. Therefore, there is absolutely no case for condoning such inordinate delay of 1 year, 10 months and 16 days in filing the appeal against the assessment order. The petition of the Managing Partner of the Assessee firm requesting for the condonation of the delay is therefore, rejected. Consequently, the appeal is not admitted. 5. The ld. A.R. filed the following affidavit before us. Seal of the Notary AFFIDAVIT To, The Hon'ble CIT (A), Surat. We, BANNER INTERNATIONAL, having office at Shop No. 6007, World Trade Center, Nr. Udana Darwaja, Surat - 395002 beg to state on solemn affirmation as under:- 1. We say that Assessment order dated 14.12.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... N. Kedia Co. to prefer appeal before your honour in the light of aforesaid special bench decision. 6. We say that the delay is bonaflde and unintentional. We say that the Assessee has a very strong prima facie case on merit in the light of the law declared by the Hon'ble special bench, Murnbai. The additions/ disallowances made is prima facie opposed to express provision of law. Therefore, the Assessee did not stand to benefit by lodging the appeal late in this case. Refusing to condone delay by your honour would result in this highly meritorious matter thrown out at a very threshold and cause of justice would be defeated. The substantial amount of demand to the tune of Rs. 60,49,021- has been imposed and demanded from the assessee based on the assessment order. In fact, the delay is grossly detrimental to self interest. The cause of substantial justice may kindly be preferred by condoning the delay. 7. We say that no prejudice would be caused to the Respondent If the delay is condoned. 8. We say that If the delay Is not condoned It would cause grave harm and injury to us. 9. We say that the Assesses should be allowed to contest the appeal on merits and should not be sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ports Others (supra). Further, the assessee has placed on record the decision of the Hon ble Delhi High Court in the case of Kvaerner Boving Construction vs- DCIT decided on 29th September, 1995 reported in (1996) 54 TTJ Del 429 in support of its stand. The facts in that case is that:- The assessee, a foreign company, as part of a consortium arrangement contracted with National Hydro-Electric Power Corporation Ltd. (NHPC), a Government of India enterprise, to set up a turnkey hydro-electric power project at Uri, J K. The project was approved by the Department of Energy, Ministry of Power under s. 44BBB of the IT Act. As part of consortium arrangement the assessee entered into a contract with NHPC for erection, testing and commissioning of mechanical plant and machinery for the Uri Hydro Electric Project. Under the agreement with NHPC, the assessee is to receive payments for storage, erection testing and commissioning of mechanical plant and machinery and also payments for marine freight and insurance in respect of shipment of capital equipment and other goods. Under the agreement, the entire tax of the contract was to be borne by the NHPC. The assessee was liable for any tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal, the AAC was competent to condone the delay in filing the appeal. Under the circumstances of these two conflicting decisions, we have to give due weightage to the later decision of the Honble Calcutta High Court as it goes in favor of the assessee in accordance with the principles of tax jurisprudence well propounded by the Honble Supreme Court in the well known case of CIT vs. Vegetable Products (1973) 88 ITR 192 (SC). In the instant case before us, as has already been said, the order of assessment was passed on 30th Sept., 1991, having been received on 22nd Oct., 1991, for which the due date of appeal before the CIT(A) was 21st Nov., 1991, admittedly. While so, the decision of the Honble Bombay High Court now relied upon by the assessee was not available, as has already been said either at the time of passing the order of assessment or during the time of the period of limitation to file the first appeal having that been delivered on 3rd/4th March, 1992. Thus, this judgment which was delivered nearly 3-1/2 months after the expiry of the limitation period for filing the first appeal is heavily relied upon and for causing the institution of the first appeal before the CIT(A) w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of Supreme Court was hardly a valid ground. 7. Therefore, in the light of the aforesaid decision in the instant case too, the apparent illegality declared by the Honble Bombay High Court in the case of Chowgule Co. (supra) on r. 115 as ultra vires, seems to have crept into the assessment and became quite patent only because of the decision of the Honble Bombay High Court. It was, therefore, only after this decision of the Honble Bombay High Court that the assessee had reason to move the appeals to the CIT(A) with a view to obtain relief in accordance with the ratio decidendi rendered by the Honble Bombay High Court. The fact that the petitioner did not keep the question alive by preferring appeal in time, was on account of the situation that before the Honble Bombay High Court took a different view in the case of Chowgule 8. Co., the legal position was practically settled in regard to r. 115. If the assessee did not keep the question alive by filing an appeal in time, it was obviously because the real legal position appeared to be settled not only to the Assessing Officer but also to the assessee and that, therefore, there was no point in pursuing the question any further. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... got the knowledge of this decision thereafter, the assessee took steps for consultation and preparation of the appeal after which the relevant papers were sent to the United Kingdom for the signature of the assessee, a foreign company and from where the papers have to be returned back by taking appropriate time in this regard and after all these, the appeal could be filed by the assessee before the CIT(A) only on 23rd Nov., 1992, as urged by the assessee and which were all not disputed by the Revenue before us. Under these circumstances, we are of the considered view that the time taken approximately for consultation, preparation of the case and sending the papers to the United Kingdom for the signature of the assessee and getting it returned and filing it, appears to be not unreasonable but constitute a bona fide one which, therefore, could be taken as sufficient cause that has prevented the assessee from filing the appeal early. Thus, on all these grounds, we are of the clear opinion that substantial justice would be rendered by condoning the delay caused in the appeal filed before the first appellate authority. Thus, we accept the first ground of appeal of the assessee before ..... X X X X Extracts X X X X X X X X Extracts X X X X
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