TMI Blog2018 (3) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) as eligible infrastructure undertaking for deduction. The ld DR could not show us any change in the facts and circumstances of the case. Disallowance of productivity linked incentive - Held that:- AR has submitted that in AY 2005- 06 the above issue was considered by the ld CIT, wherein, u/s 263 of the Act vide para No. 4 this issue is accepted that productivity linked payments are allowable to the assessee as liability is in present, quantifiable and not contingent. In view of this we allow the ground No. 4 of the appeal of the assessee. Disallowance u/s 40a(ia) - Held that:- It is admittedly the appeal for Assessment Year 2006-07 is pending before us whereas the disallowance was made in AY 2050-06. Undoubtedly, there is an amendment which is held by the Hon'ble Delhi High Court as retrospective in nature. However, we are duty bound to give direction with respect to the year for which the appeal is pending before us. Accordingly we direct the ld AO that if the tax has been deducted and deposited on the above disallowance in this year or has been paid after the due date of filing of the return for Assessment Year 2005-06 the claim may be allowed to that extent in AY 2006- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ronouncement of the decision of the Hon'ble Supreme Court, clarification from the Cabinet Secretary was received and hence, thereafter the department filed those appeals. She heavily relied on the decision of Hon'ble Supreme Court in case of the Collector Land Acquisition, Anantnag Vs. MST Katiji and others. She also submitted that there is no inaction or want of bona fides or negligence in filing the appeals and therefore, the delay should be condoned in the larger interest of justice. She further submitted that provision of law of limitation must be applied to all persons equally and uniformly. Further, the Govt. departments cannot take the decisions immediately and instantaneously but is required to follow hierarchical discipline for proper action. Therefore, comparatively a private citizen takes shorter time then the govt department. However, with respect to the govt of India it cannot be challenged that action is grossly negligent or pulpably indifferent in prosecuting the case. Therefore, the delay should be condoned. She further stated that revenue has acted with due and reasonable diligence in prosecuting the case. She further stated that application for condonation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Hon'ble Supreme Court in case of Electronics Corporation (supra) which is specifically on this point. He further submitted that the revenue does still not explain delay of 390 days out of the total delay. He therefore, stated that the filing of the above appeal do not deserve the condonation of delay. He vehemently relied on the decision of the Hon'ble Supreme Court in 348 ITR 7, Rajasthan High Court in 304 ITR 166, Delhi High Court 287 ITR 52 and Calcutta High Court in 279 ITR 339 stating that delay is not bona fide, afterthought and an attempt to take advantage of oversight by the revenue. He further referred to the order of the Hon'ble Delhi High Court in ITA NO. 1278/2010 in assessee‟s own case dated 31.08.2010 wherein, the appeal of the assessee was not admitted. He further referred to the decision of Hon'ble Delhi High Court in ITA No. 1533/2010 in assessee‟s own case dated 04.10.2010 whereon the similar circumstances appeal of the revenue was not admitted. He further referred to the decision of Hon'ble Delhi High Court in CIT Vs. GAIL in ITA NO. 86/2009 dated 13.02.2012 wherein, it was held that the decision of the Hon'ble Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f pragmatic approach to do substantive justice. Hon'ble High Court also stated that the sheer and gross negligence on the part of the govt. in preferring appeals cannot be condoned as a routine or as a right of the govt and that too to unearth a cause which is already set at rest. A delay can hardly be explained by attributing it merely to the functioning of the govt and internal correspondences. In the light of the above view it is required to be examined that whether the delay caused in filing of the above appeal is for sufficient cause; or not. Generally the time limit in litigation is mentioned for the general welfare that a period be notified to litigation and if it is kept alive beyond the such notified time it creates a chaos in judicial matters. Therefore, no party to the lis can be allowed to have unrestricted time limit for approaching the court. However, the law is not so strict that, if the litigants jumps beyond the time line is left without a recourse and suffers due to such elapse of time. Therefore, generally the judicial and quasi judicial functionaries are vested with inherent powers to condone the delays if sufficient cause‟ is shown by the parties. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause it is capable of removing injustice and is expected to do so. 7. Further, it is to be noted that in that particular case the appeal was filed by State belatedly and the Hon‟ble Supreme Court decided condonation of delay. The court held that the expression, sufficient cause‟ employed by the legislature is adequately elastic to enable the Court to apply the law in a meaningful manner which subserves the ends of the justice that being the life purpose of the existence of the institutions of court. Coming to the latest decision of the Hon'ble Supreme Court in CIT Vs. Pheroza Framroze and Co. 392 ITR 626 (S.C.) in a case where the Hon'ble Bombay High Court refused to condone the delay of 14 days where no sufficient cause were shown the Hon'ble Supreme Court condoned the delay and directed the courts to decide the case on merits. In the light of the above discussion it is noted that revenue has given a detailed date chart wherein, a complete chronology of events shows that after the decision of the Hon'ble Supreme Court in case of Electronics Corporation (supra) and after the clarification of Cabinet Secretariat the revenue has preferred an appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al is preferred by the assessee when constantly the assessee did not object to the order of the ld CIT(A) for about five years. The Hon'ble High Court held that tribunal was correct in refusing to condone the delay. In that particular case also there was no sufficient cause shown by the assessee. The another decision relied upon was of Calcutta High Court in 279 ITR 339 the revenue tried to justify the delay of 458 days in a very slip shod method and no responsible officer had taken the responsibility and the affidavit had been affirmed by an inspector in such a serious case, therefore the delay was not condoned. In that particular case more than two months have been taken for scrutinizing the paper and arrange the stamp paper by the department. More than 6 months passed for the Ministry of Law to wake up to inform that paper submitted were illegible. Therefore, the delay was not condoned for specific reason stated in para 5 of that order. Now coming to the decision cited in case of the assessee in ITA No. 1272/2010 dated 31.08.2010 in that particular case there was no approval of COD. Further, in ITA NO. 1533/2010 dated 04.10.2010 the issue was that in absence of COD the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covered in favour of the assessee. In view of this we dismiss ground no. 1 of the appeal of the revenue. 14. Ground No. 2 of the appeal is against the extra depreciation claimed by the assessee of ₹ 815393/- on computer peripherals. 15. The brief facts of this issue is that computers, printers, scanners etc assessee claimed 60% deprecation whereas, the ld AO allowed @25%. The ld CIT(A) allowed the claim of the assessee. 16. The ld CIT DR relied upon the order of the ld Assessing Officer whereas, the ld AR relied upon the orders of the ld CIT(A). 17. We have carefully considered the rival contentions. The above issue has been decided by the Hon'ble jurisdictional High Court in CIT Vs. BSES Yamuna Power Ltd holding that computer accessories and peripherals are part of the computers and are entitled to depreciation @60%. In view of this we do not find any infirmity in the order of the ld CIT(A) and ground No. 2 of the appeal is dismissed. 18. In the result ITA NO. 1363/Del/2012 for AY 2006-07 preferred by revenue is dismissed. 19. Now we come to the appeal of the assessee for Assessment Year 2006-07 in ITA No. 3960/Del/2010. 20. The first ground of appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been made in September 2006. He further submitted that total provision was made of ₹ 2.46 crores whereas, the assessee has paid in subsequent year the sum of ₹ 2.42 crores, this itself shows that there is a difference of just ₹ 4 lacs in the provision on accrual basis and crystallization of the payment. He therefore, submitted that such deduction is allowable to the assessee as employee cost. 26. The ld CIT DR relied upon the orders of the ld Assessing Officer. 27. We have carefully considered the rival contentions and also perused the orders of the lower authorities. The ld AR has submitted that in AY 2005- 06 the above issue was considered by the ld CIT, wherein, u/s 263 of the Act vide para No. 4 this issue is accepted that productivity linked payments are allowable to the assessee as liability is in present, quantifiable and not contingent. In view of this we allow the ground No. 4 of the appeal of the assessee. 28. The ground No. 5 of the appeal of the assessee is against the order of the ld CIT(A) in not giving proper direction to the ld Assessing Officer regarding disallowance of ₹ 20463681/- u/s 40a(ia) to allow the claim in Assessment Year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tances of the case the Ld. CIT (Appeals) has erred in confirming the disallowance of ₹ 48,32,67,454/- u/s 80IA in respect of incomes from Inland Container Depots (ICDs)/Container Freight stations (CFSs) which are inland ports and hence, infrastructure facilities as defined in Explanation (d) to Section 0IA(4) and certified as such by the Central Board of Excise Customs (CBEC), Ministry of Commerce and Industry, Ministry of Shipping etc. 3. On the facts and in the circumstances of the case the Ld. CIT (Appeals) has erred in ignoring the notifications, circulars, explanations, etc respect of ICDs/CFS being inland ports and as such eligible for deduction u/s 80IA. 4. On the facts and in the circumstances of the case the Ld. CIT (Appeals) has erred in confirming the disallowance of the claim amounting to ?2,46,19,447/- on account of productivity linked incentive (PLI) expenses ignoring the fact that the appellant had furnished complete details and the scientific basis for the computation of PLI payable for the year under appeal. 5. On the facts and in the circumstances of the case the Ld.CIT (Appeals) has erred in not giving proper direction to the Assessing O ..... X X X X Extracts X X X X X X X X Extracts X X X X
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