TMI Blog2008 (8) TMI 902X X X X Extracts X X X X X X X X Extracts X X X X ..... ona fide mistake and is not visited by any mala fides or any element of recklessness. The petitioner has also been able to show that the claim was not made earlier because legal advice on that account was not forthcoming. The petitioner had no reason not to have claimed it at an earlier point of time. He did not do so because the requisite advice from its tax department had not been rendered. This can certainly be treated as a sufficient cause for condonation of delay, particularly in the light of the provisions of proviso to s. 264(3) as well as the provisions of s. 5 of the Limitation Act, 1963. Consequently, we set aside the order of the CIT and remit the matter to the CIT for a decision on merits. The writ petition stands allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued to the petitioner only in the seventh year of production and in the earlier assessment years, the petitioner did not have a positive gross total income and, therefore, could not have claimed such a deduction. This had escaped the attention of the tax advisors of the petitioner. It is further contended on behalf of the petitioner that the omission to claim such a deduction in respect of the asst. yr. 2001-02 was noticed by the petitioner for the first time while preparing the return for the asst. yr. 2004-05. Thereafter, the petitioner revised the IT returns for the asst. yrs. 2002-03 and 2003-04. The return for the asst. yr. 2001-02 could not be revised as the period prescribed under s. 139(5) of the said Act had already elapsed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion was communicated to him. In the present case, the return for the asst. yr. 2001-02 was processed under s. 143(1) and the intimation was issued on 19th Feb., 2003 which was received by the petitioner on 23rd April, 2003. Consequently, the petitioner could have made an application for revision within one year thereof. The application for revision was, however, made by the petitioner on 25th Nov., 2004, i.e., after a delay of about seven and a half months. In such a situation, the proviso to s. 264(3) would be applicable. The CIT has been empowered to admit an application made after the expiry of the period of one year provided he is satisfied that the assessee was prevented by sufficient cause from making the application within the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the revised returns for the asst. yrs. 2002-03 and 2003-04 were also made sometime in the early part of December, 2004 itself. 6. Unfortunately, these factors have not at all been considered by the CIT. All that the CIT has done is to set out portions of the petitioner s application and, thereafter, give the following conclusions : I have considered the submissions and that in view of the reasons mentioned by the assessee the delay does not deserve to be condoned and the petition of the assessee is dismissed. 7. The CIT has not examined the aforesaid aspects of the matter which we have set out above. We are of the view that there was sufficient cause for having made the application after a delay of about seven and a half months. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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