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M/s. EBR Enterprises and Another Versus Union of India through the Secretary and Others

2017 (12) TMI 425 - BOMBAY HIGH COURT

Applications u/s 264 for revision in favor of assessee - Condonation of delay - eligible reasons for delay - Held that:- Referring to case of Collector, Land Acquisition vs. Mst. Katiji & Others [1987 (2) TMI 61 - SUPREME Court] it was not necessary for the petitioner to have explained each and every day's delay. On the contrary, the Apex Court held that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice is to be preferred. The A .....

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nto maintainability of the claim made by the petitioners could have been gone into on merits, only if the delay was condoned. - Proviso to Sub-Section (3) of Section 264 confers a statutory power on the Commissioner to condone the delay. Therefore it was not necessary for the Commissioner to have taken recourse to Section 5 of the Limitation Act, 1963. - We direct the Commissioner of Income Tax to decide both Revision Applications on merits as expeditiously as possible and preferably wi .....

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tition at the admission stage. Both the Petitions are taken up for final hearing. 2. The challenge in these two petitions under Article 226 read with Article 227 of the Constitution of India is to the two similar orders dated 12th November, 2014 passed by the Commissioner of Income Tax on the applications made by the petitioner assessee under Section 264 of the Income Tax Act, 1961 (for short the said Act ). 3. Writ Petition No. 6287 of 2015 relates to the Assessment year 2007-08 and Writ Petiti .....

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ners has taken us through the impugned order. His submission is that the Commissioner has completely misdirected himself, as the Commissioner has not noted that the power to condone delay is vested in him under the provision of Sub-Section 3 of Section 264 of the said Act. He submitted that the reasons for delay were set out in the application for Revision filed by the petitioners. He submitted that the Commissioner could not have gone into the question, whether on merits, any relief could be gr .....

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erence is called for. 7. We have considered the submissions. Section 264 confers revisional jurisdiction on the Principal Commissioner or the Commissioner. Sub Section (3) of Section 264 reads thus : In the case of an application for revision under this section by the assessee, the application must be made within one year from the date on which the order in question was communicated to him or the date on which he otherwise came to know of it, whichever is earlier: Provided that the Commissioner .....

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on Application, a reference is made to Section 80IB( 10) as amended with effect from 18th April, 2005. After referring to the said provisions, it is stated thus : However, the new sub-section( d) which was inserted w.e.f. 01.04.2005 gave an impression to the applicant it may also apply for the ongoing projects during F.Y. 0405 (A.Y. 0506) even though the projects have been approved before 01.04.2005. In fact, Department in many cases took this stand. Hence, the applicant did not claim any deduct .....

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enclosed as Annexure 3. It is only after the favourable order by CIT(A) that the applicant revived the claim for deduction u/s. 80IB (1) for the year under reference. 10. The claim made by the petitioner for the Assessment Year 2009-10 was allowed by the order dated 20th February, 2014 by CIT (Appeals). Immediately within a period of one month, an application seeking exercise of Revisional Jurisdiction was filed by the petitioner on 20th March, 2014. Thus, there was a valid explanation for the d .....

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such a liberal approach is adopted on principle as it is realized that : 1. Ordinarily, a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown 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 a peda .....

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count of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk. (underlines supplied) 12. In view of the law laid down by the Apex Court, it was not necessary for the petitioner to have explained each and every day's delay. On the contrary, the Apex Court held that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice is to be preferred. The .....

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to maintainability of the claim made by the petitioners could have been gone into on merits, only if the delay was condoned. As stated earlier, the learned Commissioner has referred to the decision of Collector Land Acquisition (supra). But we find that the ratio of the said decision has been completely ignored. 14. Therefore, the delay ought to have been condoned by the Commissioner by invoking the power under the proviso to Sub-Section 3 of Section 264 of the Income Tax Act. As far as the meri .....

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