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TMI Blog2018 (6) TMI 1536X X X X Extracts X X X X X X X X Extracts X X X X ..... anufacturing process; it is only one of the several processes involved in the manufacture of tread rubber. The other processes involved are: (1) Master batch mixing, (2) Sulphur mixing, (3) Warming & extrusion, (4) Moulding, (5) Deflashing, (6) Machine Buffing, (7) Hand Buffing, (8) Inspection, (9) Rolling, (10) Packing, (11) Weighing. Thus, he observed that the assessee was not entitled for deduction u/s. 80IB of the Act on job work basis. 3. On appeal, the CIT(A) confirmed the same. 4. Against this, the assessee is in appeal before us. It was noticed that there was delay of 2819 days in filing the appeal before the Tribunal. The assessee has filed condonation petition accompanied by an affidavit stating that his income tax representation upto the level of CIT(Appeals) was handled by CA Unnikrishnan Nair N., a Practising Chartered Accountant and all the appellate proceedings before the Tribunal were handled by CA Mathew Joseph. It was stated that during this period about nine appeals of the group concerns were pending before the ITAT on the same issue and all the appeals were represented by CA Mathew Joseph. It was stated that the present appeal ought to have been filed on or be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considerations are pitted against each other, 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 nondeliberate delay. The Ld. AR also relied on the decision of the Mumbai Benches of the Tribunal in the case of Y.P. Trivedi vs. JCIT in ITA No. 5994/Mum/2010 dated 11/07/2012 wherein it was held that delay in filing the appeal due to CA's fault is bona fide and must be condoned and the delay of 496 days was condoned by observing as follows: "5 After considering the rival submissions and carefully gone through the affidavit filed by the assessee as well as the affidavit of Shri Sunil Hirawat, CA of the assessee, we note that the facts of the case do not suggest that the assessee has acted in a malafide manner or the reasons explained is only a device to cover an ulterior purpose. It is settled proposition of law that the Court should take a lenient view on the matter of condonation of delay. However, the explanation and the reason for delay must be bonafide and not merely a device to cover an ulterior purpose or an attempt to save limitation in an underhand way. The Court should be libera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... io of the decision of the Hon'ble Apex Court in the case of Concord of India Insurance Co. Ltd. Vs. Smt. Nirmala Devi and others, reported in (1979) 118 ITR 507(SC), has been considered, wherein it has been held that the mistake of the counsel may in certain circumstances be taken into account in condoning the delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground. Accordingly, the Hon'ble Apex Court has held that there is a mistake of the counsel and, therefore, the delay in filing the appeal has been condoned. I further noted that similar finding has been expressed by the Hon'ble Supreme Court in the case of N. Balakrishnan Vs. Krishnamurthy, reported in AIR 1998 SC 3222. The Tribunal has also considered the vision in the case of Mela Ram and sons Vs. ITA Nos.3228 to 3234/2013 CIT, reported in 29 ITR 607 (SC) and accordingly, the delay in filing appeal was condoned. The facts in the present case are also similar as in this case also due to mistake of Chartered Accountant the assessee could not file the appeals in time. In view of the above facts and circumstances of the case and in view of the various decisions m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the Supreme Court in the case of State of Punjab and Another vs. Shamlal Murari & Anr (1976 AIR 1177) and submitted that the discretionary power of exercise is available only in exceptional case and only when there is something perverse or irrational in the exercise of that power by the lower authorities. According to the Ld. DR in this case, the assessee was sleeping over the matter and not keen to take remedial measures against the order of the CIT(A). Hence, the appeal is to be dismissed in limine. 6. We have heard the rival submissions and perused the record. There was a delay of 2819 days in filing the appeal before the Tribunal. The assessee has stated the reasons in the condonation petition accompanied by an affidavit which has been cited in the earlier para. The assessee filed an affidavit explaining the reasons and prayed for condonation of delay. The reason stated by the assessee is due to inadvertent omission on the part of Shri Unnikrishnan Nair N, CA in taking appropriate action to file the appeal. He had a mistaken belief that the appeal for this year was filed by the assessee as there was separate Counsel to take steps to file this appeal before the ITAT. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 6.2 When substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right for injustice being done because of nondeliberate delay. In the case on our hand, the issue on merit regarding allowability of deduction u/s. 80IB of the Act was covered in favour of the assessee by the binding Judgment of the jurisdictional High Court. Moreover, no counter-affidavit was filed by the Revenue denying the allegation made by the assessee. It is not the case of the Revenue that the appeal was not filed deliberately. Therefore, we have to prefer substantial justice rather than technicality in deciding the issue. As observed by Apex Court, if the application of the assessee for condoning the delay is rejected, it would amount to legalise injustice on technical ground when the Tribunal is capable of removing injustice and to do justice. Therefore, this Tribunal is bound to remove the injustice by condoning the delay on technicalities. If the delay is not condoned, it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve a liberal construction. In this case, the issue on merit regarding granting of deduction u/s. 80IB was covered in favour of the assessee by the Judgment of the jurisdictional High Court. Therefore, for the purpose of advancing substantial justice which is of prime importance in the administration of justice, the expression "sufficient cause" should receive a liberal construction. In our opinion, this Judgment of the jurisdictional High Court is also squarely applicable to the facts of this case. A similar view was taken by the Madras High Court in the case of Venkatadri Traders Ltd. v. CIT (2001) 168 CTR (Mad) 81 : (2001) 118 Taxman 622 (Mad). 6.5 The Mumbai Bench of this Tribunal in the case of Bajaj Hindusthan Ltd. v. Jt. CIT (AT) (277 ITR 1) has condoned the delay of 180 days when the appeal was filed after the pronouncement of the Judgment of the Apex Court. Furthermore, the Revenue has not filed any counter-affidavit opposing the application of the assessee for condonation of delay. The Apex Court in the case of Mrs. Sandhya Rani Sarkar vs. Smt. Sudha Rani Debi (AIR 1978 SC 537) held that non-filing of affidavit in opposition to an application for condonation of delay may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d CIT(A) has placed reliance on the decision of Hon'ble jurisdictional High Court in the assessee's own case (referred supra). For the sake of convenience, we extract below the relevant observations made by the Hon'ble Kerala High Court in the assessee's own case referred supra. "1..... However, the Division Bench prima facie doubted whether processing of goods done for another party by the assessee could be treated as manufacture or production of any article or thing for the purpose of deduction under section 80IB of the Act. Accordingly, for a detailed consideration of correctness of said decision, the matter was referred to the Full Bench.... 2. The assessee is engaged in manufacture of procured tread rubber and is also engaged in the job work of mixing of rubber with chemicals, process oils etc., to make compound rubber for tyre manufacturing companies..... The assessing officer held that the job work done by the assessee by mixing rubber with chemicals, process oils etc., to make compound rubber does not amount to "manufacture or production of any article or thing" within the meaning of section 80- IB and so much so assessee is not entitled to any deduction... 4. The onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mixing rubber with chemicals, process oil etc., making compound rubber, is covered by section 80IB of the Act. We notice that the Tribunal has disallowed the claim by following the decision of the Supreme Court in CIT v. K. Ravindranathan Nair (2007) 295 ITR 228. What was considered in that case was assessee's entitlement to treat processing charges received as part of export profit for the purpose of deduction u/s. 80HHC of the Act. We do not think the said decision has any application to the facts of this case. We therefore hold that assessee is entitled to deduction under section 80IB in respect of profit derived by the industrial unit where compound rubber is made." We notice that the issue contested before us has already been decided by the full bench of Hon'ble jurisdictional Kerala High Court in the assessee's own case for an earlier assessment year. We have already noticed that the Ld CIT(A) has followed the above said binding decision of Hon'ble High Court. Under these circumstances, we do not find any reason to interfere with his order on this issue. 8. In the result, the appeal filed by the revenue is dismissed." 6.9 In view of the above order of the Tribunal, we ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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