TMI Blog2015 (5) TMI 857X X X X Extracts X X X X X X X X Extracts X X X X ..... the interest of justice and fair play, we condone the aforesaid delay in filing all the appeals for all the assessment years under consideration and restore the matter to the file of the ld.CIT(A) to decide the appeal on merits after giving the assessee adequate opportunity of hearing. - Decided in favour of assesse for statistical purpose. - ITA Nos.348 & 349/PNJ/2014, ITA No.350/PNJ/2014, ITA Nos.351 to 357/PNJ/2014 - - - Dated:- 22-1-2015 - P. K. Bansal, AM And D. T. Garasia, JM,JJ. For the Appellant : Shri Pukale Manoj Devinder, Adv., ld. AR For the Respondent : Shri R Durai Pandian, ld. DR ORDER Per Shri D T Garasia,JM. All these appeals have been filed by the assessee against the respective order of the ld. CIT(A), Belgaum for the assessment years 2005-06, 06-07, 08-09 to 12-13 2. ITA Nos. 348 to 353/PNJ/2014 pertain to assessment years 2005-06, 06-07 08-09 to 11-12 relate to the assessment orders passed u/s143(3) of the Act and ITA Nos. 354 to 357/PNJ/2014 for AYs 09-10 to 12-13 relate to charging of interest u/s. 201(1)/(1A) of the Act. 3. Common short facts of the case are that the assessee is co-operative society registered under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Transportation without PAN ₹ 22,75,718@20% 4,55,144 1,09,235 5,64,379 Total demand payable 10,80,194 2,59,247 13,39,441 3.1 Rest for the assessment years the addition was made u/s201(1)/201(1A) was made by the AO. 4. The above action of the AO was upheld by the ld.CIT(A) by not admitting the appeal on the ground that the assessee s appeal is barred by limitation by observing as under:- i) The said agreement/contract was entered into between the appellant deductor and the harvesting contractor ii) Neither of them(appellant deductor or harvesting contractor) has disputed the said contractor in any court of law as per the information available with this office. iii) The terms of the said contractor as far s the harvesting/transportation etc. sugar cane to the appellant deductor s factory is concerned, the same have already been acted upon by both the parties to the said agreement. iv) Pursuant to the aforesaid agreement/contract now disputed by the appellant deductor, the deductor h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see to know its provisions(CIT Vs. India Gospel Fellowship Trust(Mad) 331 ITR 283). e) The Delhi High Court in the case of M.S Nulon India Ltd Vs. CIT CMP no.4755 of 1944 dated 24/01/1995 while deciding the issue of condonation of delay in favour of the revenue wherein the appellant has taken the plea that the delay had occurred because the assessee was not given proper legal guidance has held that: 3. Admittedly, the application u/s264 of the Act was filed beyond one year and there was a delay of 1+ months in filing the application, . It was stated in the application seeking condonation of delay that the delay occurred because the assessee was not given proper legal guidance when he received the assessment orders. It was, however, pointed by Mr.B.Gupta, learned counsel for the revenue, that the assessee is not only having the services of a chartered account but also a tax consultant who a former Indian revenue Service get proper legal guidance can not be held to be valid. We, therefore, find no error in the impugned order for us to interfere, Dismissed. In the instant case, as discussed in the aforesaid order of the AO, the assessee had the benefit of the legal advice of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reement made between the appellant deductor and the harvesting contractors which is not the issue discussed in the aforesaid order of the AO, it has failed to establish the existence of sufficient cause for not presenting the appeal befor 27/01/2008 i.e. within thirty days of service of demand notice. The appeal of the appellant is not liable to be admitted in view of the foregoing discussion and respectfully following the various decisions of the Supreme Court and High Courts discussed above and more particularly the decisions of Supreme Court in J.B Advani Company(P) Ltd, supra and the decision of the Delhi High Court in M.S Nulon India Ltd, supra which are squarely applicable to the facts of the present case. Therefore, delay in filing of appeal by the appellant is not condoned and the appeal of the appellant is not admitted. 5. During the course of hearing before us the ld.AR has drawn our attention under the application under Rule 11 of the I.T.A.T. Rules 1963. The assessee seeks main relief against the denial of admission of appeal. The assessee has come in appeal before the tribunal for admission of the appeal by condoning the delay. During the course of hearing before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d made by the AO is not tenable. The ld.AR submitted that there is delay from assessment 2005-06 in filing the appeal by six years 3 months and so on. But the assessee took the legal opinion. The ld.CIT(A) on merit has not admitted the appeal. Thus, he prayed before us the delay in filing the appeal may be condoned and matter may be restored to the file of the ld.CIT(A) to decide the appeal on merits. 6 The ld.DR has objected to it. 7. We have heard the rival submissions of both the parties. Looking to the facts and circumstances of the case, we find that the assessee has filed detailed chart for the delay in filing the appeal. The same is reproduced below for the sake of clarity:- ITANo AY Dt of Asmt order Order u/s Served on (Approx) Approx) Due Dt Filed on (Approx) Delay 348/14 05-06 26/12/07 143(3) 01/01/08 30/01/08 16/05/14 6y 3 m 16 d 349/14 06-07 12/12/08 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for condonation of delay must be decided on merit The Court must be liberal in condoing the delay. The Tribunal has to exercise the power with reasonable cause where the delay was properly explained. Such misplacement occurred because continuous illness of the ld. counsel of the assessee. Such reason must be supported by an affidavit. We find that in the instant case the assessee society is registered under the Karnatka Co-operative Societies Act 1959. The assessee society s main object is to manufacture of sugars by procuring cane from members and non-members. Thus, the society runs on co-operative basis. The assessee could not obtain the legal advice. Moreover, the assessee s sugar factory was running in loss for so many years. Therefore, the assessee could not file appeal in time before the ld.CIT(A). The assessee has obtained legal opinion from an ex-principal, G.K.Law College, Hubli. The assessee has filed the appeal. The assessee has understood the legal position. We are of the view that the assessee had reasonable cause in not filing the appeal in time before the ld.CIT(A). The appeal may not be decided on technical ground, but it must be decided on merit in the interest o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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