TMI Blog2015 (6) TMI 280X X X X Extracts X X X X X X X X Extracts X X X X ..... 4227/Mum/2013 (AY:2007-08) - - - Dated:- 28-11-2014 - Shri Joginder Singh And Shri Sanjay Arora, JJ. For The Appellant : Shri Paresh M. Shah For The Respondent : Shri Rajesh Ranjan Prasad ORDER PER JOGINDER SINGH (JM) : The assessee is aggrieved by the impugned order dated 2/2/2012 of the ld. First Appellate Authority, Mumbai on the grounds as stated in the grounds of appeal. Broadly framing assessment without serving of notice u/s. 143(2) of the Act, without appreciating the provisions of section 292BB and further making disallowance u/s. 80IC of the Act. 2. There is a delay of 373 days in filing the appeal before this Tribunal by the assessee for which application for condonation of delay has been filed, therefore, we tend to dispose of the application first. During hearing the ld. Counsel for the assessee Shri Paresh M. Shah invited our attention to the contents of the application supported by affidavit and also the paper book of the assessee running into 178 pages. The crux of argument advanced on behalf of the assessee is identical to the application by submitting that the concerned persons have filed affidavits. In its 7-pages application the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Financial Controller and Mr. Mahesh Maharana, Accountant attended the proceedings from time to time. The Assessing Officer noticed that details of deduction claimed u/s. 80IC of the Act, were not filed even on 24/12/2009. Finally, the total income was assessed at ₹ 23,95,801/-. 2.3 On appeal, before the ld. Commissioner of Income tax (Appeals) the assessee filed additional ground, which were remanded to Assessing Officer and also counter comments of the assessee on the report sent by the Assessing Officer. Finally, the appeal of the assessee was partly allowed. The assessee filed further appeal before this Tribunal . 2.4. We have heard both the sides on the condonation of delay. We note that the assessment order u/s. 143(3) of the Act was passed on 30/12/2009 against which the assessee filed first appeal before the ld. Commissioner of Income tax (Appeals) on 25/1/2010. The ld. Commissioner of Income tax (Appeals) disposed of the appeal vide order dt. 2/2/2012 and against the decision of the ld. Commissioner of Income tax (Appeals) assessee has filed second appeal before the Tribunal on 24/5/2013 resulting into delay of 373 days . Now question arises whether the delay w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judice to the other side will be a relevant factor and calls for a more cautious approach, in the later case no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard. The court has to exercise its 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. The expression sufficient cause should receive a liberal construction. 2.4.1 While disposing of the aforesaid appeal in the case of Vedabhai, the Hon'ble Apex Court itself has concluded that a distinction has to be made between inordinate delay and a case where the delay is of few days and the court has to exercise the discretion on the facts of each case. In the present appeal, admittedly, there is a substantial delay of 373 days, which in our humble opinion, if condoned, may defeat the very purpose of the limitation period provided u/s 5 of the Limitation Act itself. It is not a case of delay of few days. If this substantial delay is condoned then there is no meaning of Limitation Act. We are aware that the substantial cause of ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorities exercising quasijudicial powers in discharge of their statutory functions, inevitably have to be vested with some element of discretion in exercise of such powers. Merely because another view was possible or permissible on the same facts and circumstances, that per se, would not make such controversy a question of law . So long as such decision of the authority is in conformity with the principle of law and is apparently a prudent one, the court would normally be reluctant to interfere in such exercise of discretion. Once the concerned authority applies its mind and declines to condone the delay in filing the appeal for good and appropriate reasons, it cannot give rise to a question of law. Held, that specific reasons had been given by the Tribunal for refusal to condone the delay in filing the appeal which were not only logical but reflected the conduct of the Department before the authorities in not producing the record inspite of seeking time. No question of law arose from the order. 2.5 In such type of matter, we are expected to examine whether the mistake is bona fide or merely a device to cover-up with ulterior purpose such as, laches on the part of the Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Ltd. (2004) 3 SCC 250 the Hon'ble Apex Court held as under :- 21 .. It has to be remembered that the law of limitation operates with all its rigours and equitable considerations are out of place in applying the law of limitation. The cross objectors ought to have filed appeal within the prescribed period of limitation calculated from the date of the order if he wishes to do so. Having allowed that opportunity to lapse he gets another extended period of limitation, commencing from the date of service of notice of appeal enabling him putting in issue for consideration of the appellate court on the same grounds which he could have otherwise done by way of filing an appeal. This extended period of limitation commences from the date of service of the notice of appeal and such notice ought to be a valid or competent appeal. The ratio laid down in the following cases further supports our view:- G Ramegowda Major vs. Special land Acquisition (1988)AIR 897, (1988)SCR (3)198; Bhagwana vs. Tarachand and Ors. CM No.11634-C of 2007 in RSA No.4122 of 2007 order dt.18/1/2008. Ambika Ranjan vs. Manekganj Loan Office 55 Cal 798 Surendra Mohan vs. Mahendranath 59 Cal. 781 Brett ..... X X X X Extracts X X X X X X X X Extracts X X X X
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