TMI Blog2010 (6) TMI 818X X X X Extracts X X X X X X X X Extracts X X X X ..... essee prior to insertion of proviso to section 113 of the IT Act, therefore, surcharge is not leviable. 3. According to the office the Cross Objection is time bared by 1555 days. The Cross Objection is filed in the office of the Tribunal on 22-05-2009 and it is intimated that the date of communication of the appellate order is dated 18-01-2005. The affidavit of ITO, Ward-8(3), Ahmedabad is filed on record for explaining the delay in filing the Cross Objection. It is stated in the Affidavit that the assessee filed appeal against the order of the learned CIT(A) on 06-04-2005 and considering the quantum of tax involved and the legal position existing at that time no appeal has been filed against the issue of charging of surcharge. Howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n record. According to section 253(4) of the IT Act the AO or the assessee as the case may be, could file the Cross Objection on receipt of the notice of the appeal within 30 days of receipt of the notice. Section 254(5) provides that the Tribunal may admit the Cross Objection after the expiry of the relevant period if it is satisfied that there was sufficient cause for not presenting it within that period. Sufficient cause means a cause which is beyond the control of the person. Sufficient cause means which prevents a reasonable man of ordinary prudence acting under normal circumstances without negligence or inaction or want of bona fide. The assessee preferred appeal before the Tribunal in ITA No.107/Ahd/2005 on 07-04-2005. Thereafter, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Suresh N. Gupta (supra). The Hon ble Madras High Court in the case of CIT Vs Ramachandra Hatcheries 305 ITR 117 held that The Assessing Officer in view of Supreme Court decision reopened assessment and disallowed deduction in reassessment Assessing Officer has no jurisdiction to reopen proceedings on issue which was adjudicated upon. Reopening of assessment bad in law. Hon ble Bombay High Court in the case of Sesa Goa Ltd. Vs JCIT 294 101 held that Reassessment in the light of subsequent judicial decision not a case of non-disclosure fully and truly of all material facts but change of opinion on subsequent decision Reassessment notice invalid . Considering the facts of the case as noted above, it is clear that the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udice to the other side will be relevant factor and calls for a more cautious approach. In the latter case no such consideration may arise and such a case deserves a liberal approach. Now in the present case delay is not of a few days but of 1555 days. Besides, there is absolutely no valid explanation/reason for the delay. In the case of CIT V. Ram Mohan Kabra (2002) 257 ITR 773, the Hon ble Punjab Haryana High Court has held and observed that where the Legislature spells out a period of limitation and provides for power to condone the delay as well, such delay can only be condoned only for sufficient and good reasons supported by cogent and proper evidence. It is a settled principle of law that provisions relating to the specified period ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
