TMI Blog2016 (11) TMI 1306X X X X Extracts X X X X X X X X Extracts X X X X ..... in the course of hearing. We find that the said material was placed before the lower authorities and the same has not been repudiated at all. The denial of deduction has been solely on non-obtaining of completion certificate, which in the present case is not a requirement to be insisted upon in view of the judgement of the Hon’ble Delhi High Court in the case of CIT vs. CHD Developers Ltd. - Decided in favour of assessee - ITA Nos. 1912 & 1913/PN/2014 - - - Dated:- 23-9-2016 - SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM For The Assessee : Shri K. Srinivasan For The Revenue : Shri Hitendra Ninawe ORDER PER VIKAS AWASTHY, JM : ITA Nos. 1912 1913/PN/2014 have been filed by the assessee against the orders of Commissioner of Income Tax (Appeals)-I, Pune dated 07-04-2011 for the assessment year 2005-06 and dated 28-02-2011 for the assessment year 2007-08, respectively. Since, identical issues are involved in both the appeals, the appeals are taken up together for adjudication and are decided by this common order. 2. The appeals have been filed with the delay of 1224 days. The ld. AR of the assessee has filed an application for condonation of delay su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted as (1998) 7 SCC 123 : AIR 1998 SC 3222 has held that the explanation furnished by the assessee resulting in delay of filing the appeals should be accepted as a matter of principle. The expression sufficient cause in explaining delay in filing of the appeals beyond the period of limitation should be given liberal construction. The requirement that every day s delay should be explained should not be stressed by taking pedantic approach. The ld. AR submitted that on merits the assessee has prima facie good case as the Commissioner of Income Tax (Appeals) has dismissed both the appeals of the assessee for non-prosecution. The Tribunal in various decisions has held that the Commissioner of Income Tax (Appeals) has no power to dismiss the appeals for nonprosecution. The assessee had filed appeal for assessment year 2006-07 before the Tribunal, identical issues are involved in assessment years 2005-06 and 2007-08. The assessee would not have gained anything by not filing the appeals in the impugned assessment years. The assessee was under bonafide belief that the appeals were still pending before Commissioner of Income Tax (Appeals) for final disposal. The ld. AR prayed for admittin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. Every day's delay must be explained does not mean that pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational, common sense and pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of a non deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs serious risk. 6. It must be grasped that the judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 5. The Hon'ble Supreme Court of India in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words sufficient cause under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari (1969) 1 SCR 1006 and State of W.B. v. Administrator, Howrah Municipality(1972) 1 SCC 366. 13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals by the assessee is condoned. The appeals are admitted to be heard and disposed of on merits. 7. The ld. AR of the assessee has pointed that the appeals of the assessee for assessment years 2005-06 and 2007-08 have been dismissed for non-prosecution by the Commissioner of Income Tax (Appeals) in an ex-party order. Section 250(6) of the Income Tax Act, 1961 (hereinafter referred to as the Act ) prescribes the procedure to be followed by the Commissioner of Income Tax (Appeals) in disposing of the appeals filed by the assessee. The same is reproduced here-inunder : (6) The order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision. Thus, from a bare perusal of the aforesaid provision it is amply clear that there is no power vested in the Commissioner of Income Tax (Appeals) to dismiss the appeal of assessee for non-prosecution. The Commissioner of Income Tax (Appeals) being a quasi judicial authority is duty bound to decide the appeal filed by the assessee on merits by passing speaking order, in accordance with law. 8. The Mumbai Bench of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame and style of Ujjwal Gardens. The building plans for the said project were first sanctioned by the Pune Municipal Corporation in January, 2001 and subsequently in March, 2003 and July, 2004. The assessee had claimed the deduction under section 80-IB(10) of the Act for the first time for A.Y. 2004-05 and thereof A.Ys. 2005-06 and 2007-08. The assessments relating to A.Ys. 2004-05 and 2005-06 were completed by passing order under section 143(3) of the Act and the claim of the assessee was accepted. The claim of the assessee was accepted vis- -vis the deduction claimed under section 80- IB(10) of the Act. However, during the assessment proceedings, taken up for the year under appeal i.e. A.Y. 2006-07, the Assessing Officer requisitioned the assessee to furnish the completion certificate from the Pune Municipal Corporation. The said completion certificate as per the Assessing Officer should have been received by 31.03.208. The contention of the assessee in reply was that the project had been completed and the building had been occupied and was being used by the occupies which established the claim of the assessee as to completion of the project within the stipulated period. Though t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Senior Division, Pune vide order dated 01.07.2006 lifted the restrain order passed by the Pune Municipal Corporation in respect of the other properties, which did not relate to the complainant, Shri Vasant Mahadev Deshpande. The copy of the Civil Suit filed by the assessee is placed at pages 28 to 36 of the Paper Book and the hand-written order of the Civil Judge is available at page 32 of the Paper Book. The plea of the assessee is that consequent to the said order of the Civil Judge, Senior Division, Pune the construction of all the sites except the site connected with Shri Vasant Mahadev Deshpande were started and was later completed. However, the Pune Municipal Corporation did not issue the completion certificate in respect of the properties constructed by the assessee. In the above said circumstances, the application for obtaining completion certificate prepared by the assessee was not accepted by the Pune Municipal Corporation and consequent thereto the completion certificate has not been issued to the assessee till date. 10. The issue arising in the present appeal is that where the assessee had completed construction of the building, which had been occupied by the ow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g out before the Assessing Officer, CIT(A), as well as before the Tribunal that the construction was completed before the stipulated date. The flats have been sold and are occupied by the respective customers. It has also been pointed out that in some of the cases the local authority has issued individual completion certificates to the respective flat owners. Other document viz. property tax assessment of some individual flat owners, electricity bills showing occupation of the flats, etc. have been referred to in the course of hearing. We find that the said material was placed before the lower authorities and the same has not been repudiated at all. The denial of deduction has been solely on non-obtaining of completion certificate, which in the present case is not a requirement to be insisted upon in view of the judgement of the Hon ble Delhi High Court in the case of CIT vs. CHD Developers Ltd. (supra). 13. In the aforesaid, we hereby set-aside the order of the CIT(A) and direct the Assessing Officer to allow the claim of the assessee under section 80-IB(10) of the Act. Thus, the grounds of appeal raised by the assessee are allowed. 11. The ld. DR has not been able to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
