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TMI Blog2019 (2) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... der of the Commissioner of Income Tax (Appeals) in so far as it is against the assessee is contrary to law, erroneous and unsustainable on the facts of the case. A. Jurisdiction 2. The CIT(A) ought to have seen that there was lack of jurisdiction for the officer in completing the assessments under sec.153C of the Act. 3. The CIT(A) ought to have appreciated that the additions made should relate to the satisfaction recorded by the officer for issuing notice under sec.153C and there being no such recording, the assessment framed u/s.153C stands vitiated and needs to be cancelled. 4. The CIT(A) ought to have further appreciated that where the satisfaction recorded on one issue is ignored in the assessment and addition is made on other items which are not part of satisfaction recorded, then the whole assessment framed under sec.153C is ab initio void and untenable in law. 5. The CIT(A) further ought to have seen that while satisfaction recorded for issuance of notice u/s.153C was on jewellery seized in the search, no addition was made in the assessment framed and hence the officer lacks in jurisdiction to make additions on any other issues and thus assessment needs to be annu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issuing notice u/s.143(2), the assessment came to be completed by the ACIT, Central Circle-III, Madurai, invoking provisions of Sec.144 of the Act at a total income of Rs. 2,74,321/-. While doing so, the AO estimated the profit from the business of plying of buses at 5% of the gross receipts. Against the said Assessment Order, an appeal was preferred before the Ld.CIT(A) who vide impugned order had directed the AO to adopt the gross profit at 3.5% of the receipts. 5. Being aggrieved, the appellant is before us in the present appeals. At the outset, there is a delay of 2969 days in filing of the present appeals. The assessee filed a petition duly sworn by him on 25.09.2018 stating that the delay in filing the present appeals occurred on account of the wrong advice given by the earlier Chartered Accountant, who advised the assessee not to file any further appeals. It is only after the proclamation notice for the sale of the properties to realize the taxes by the department, the assessee approached another Chartered Accountant who advised him to file an appeal. It is further stated that the AO had not recorded any satisfaction as required under the provisions of Sec.153C of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated by us supra, the appellant had acted bona fide by following the advice of the earlier counsel not to file the appeal. This by itself cannot be treated as a deliberate or intentional act, for which, the appellant can be punished. The Kerala High Court after referring to the judgment of Supreme Court in the case of Concord of India Insurance Co. Ltd. Vs. Nirmala Devi and Others, supra, held as follows: "The law is settled that mistake of counsel may in certain circumstances be taken into account in condoning delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground. It is always a question whether the mistake was bonafide or was merely a device to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way. The High Court unfortunately never considered the matter from this angle. If it had, it would have seen quite clearly that there was no attempt to avoid the Limitation Act but rather to follow it albeit on a wrong reading of the situation." "The High Court took the view that Mr. Raizada being an Advocate of 34 years' standing could not possibly make the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely, 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 a serious risk. 6. It must be grasped that 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. 9. Keeping in view the above principles, we now proceed to deal with the present case. No doubt, the delay of 2969 days is huge and enormous but looking into the reasons given for the delay, it cannot be said that there are malafides on the part of the appellant in filing the appeal belatedly. Further, no pedantic view or approach to be adopted by the Court in considering the reasons given by the parties for delay in approaching the court. Further, it does not mean that every day delay must be explained. Thus, the underlying principle is that when the substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred. In the present case, it is a case of the assessee that no satisfaction note was recorded by the AO at the time of issue of notice u/s.153C. N ..... X X X X Extracts X X X X X X X X Extracts X X X X
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