TMI Blog2016 (1) TMI 1439X X X X Extracts X X X X X X X X Extracts X X X X ..... ave filed a Miscellaneous Application. In any case, the right of filing an appeal in respect of reopening of an assessment arose when the order dated 5th June, 2009 of the Tribunal was received by the Applicant. The right of appeal of the Applicant on the issue of reopening of assessment did not arise as a consequence of the order of the Tribunal dated 23rd March, 2010 allowing the Revenue's application for rectification, withdrawing the benefit of Section 80IB of the Act to the Applicant. There is no explanation as to what prevented the Applicant from filing an application for rectification before the order dated 23rd March, 2010 of the Tribunal allowing the Revenue's application for withdrawing the benefit of Section 80IB of the Act. This event viz: order dated 23rd March, 2010 does not explain the delay from order dated 5th June, 2009 (received on 30th June, 2009) upto its first applications for rectification on 22nd February, 2011. Be that as it may, even if we accept the submission made on behalf of the Applicant that the time spent between 22nd February, 2011 to 17th December, 2014, in prosecuting the repetitive Miscellaneous Application on the same issue before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 80IB of the Income Tax Act, 1961 (the Act) in respect of the customs duty drawback. Before the Tribunal, so far as issue (i) above viz: of reopening of assessment was concerned, the Applicant did not press the same and it was dismissed as not pressed. However, the challenge on the second issue viz: entitlement to benefit of Section 80IB of the Act was upheld by following the decision of the Delhi High Court in CIT v/s. Eltek SGS Pvt. Ltd. (2008) 300 ITR 6(Delhi). The impugned order of the Tribunal was received by the Applicant on 30th June, 2009; (b) On 31st August, 2009, the Apex Court in Liberty India v/s. CIT (2009) 317 ITR 218 (SC), reversed the decision of Delhi High Court in Eltek SGS Pvt. Ltd. (supra). Thus, the benefit of Section 80IB of the Act was not available to the Applicant; (c) In view of the decision of the Supreme Court in Liberty India (supra) declaring the law, the Revenue filed a Miscellaneous Application with the Tribunal seeking to rectify the order dated 5th June, 2009, to the extent it had granted benefit of Section 80IB of the Act to the Applicant. On 23rd March, 2010, the Tribunal allowed the application of the Revenue and rectified th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decided in its favour. Thus, it was only after order dated 23rd March, 2010 by which the Tribunal rectified its order dated 5th June, 2009, withdrawing the benefit of Section 80IB of the Act that the Applicant was aggrieved by the finding of the Tribunal on the issue of reopening of assessment. Thus, the period of time up to the 23rd March, 2010 is to be ignored for computing the period to challenge it before this Court; (b) The period spent between 22nd February, 2011, (when the Applicant filed its first Miscellaneous Application) upto 30th October, 2014, (when the Applicant withdrew its Income Tax Appeal from the order on Miscellaneous Application) should be excluded. This is so as the Applicant was bonafide prosecuting its remedy by filing an application for rectification before the Tribunal. In support, reliance is placed upon the decision of the Supreme Court in M. P. Steel Corporation v/s. Commissioner of Central Excise, (2015) 7 SCC 58; and (c) A liberal approach in the applications for condonation of delay has to be adopted in the present facts and the delay be condoned. This would enable adjudication of the issue of reopening of assessments on merits. 4. As again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of delay, must endeavor to explain the delay and show his bonafide in not having moved within the time prescribed (i.e. not being diligent). The law assist the vigilant and not the indolent as stated in the Latin Maxim Vigilantsbus et non dormientibus jura subveniunt. The reasons for explaining the delay has to be plausible and therefore reasonable so that the Court can exercise its discretion. Moreover, although a party is not required to explain the reasons for not filing an appeal within the prescribed time, the party must explain the delay post period of limitation i.e. from the expiry of the period of limitation. 6. In the present facts, we find that the Applicant had given up the issue of reopening of assessment being without jurisdiction before the Tribunal. The impugned order dated 5th June, 2009 of the Tribunal had no occasion to deal with the issue of reopening of the assessment. The Applicant, if aggrieved by the decision dated 5th June, 2009 of the Tribunal, incorrectly recording its withdrawal of challenge to the reopening of the assessment, the Applicant should have been filed an application for rectification immediately. The Applicant accepted the order of the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for rectification on the basis of the decision of the Apex Court in Liberty India (supra) is further evidence of the Applicant not acting diligently. There is no explanation for the aforesaid conduct on the part of the Applicant in the affidavit in support of the application. This clearly establishes that Applicant was not diligent. 8. In the present facts, we are of the view that the rectification application was moved on the ground that the recording of not pressing its grievance with regard to reopening of the assessment at the time of hearing of an appeal, leading to the impugned order dated 5th June, 2009, was not correct. Therefore, even if we exclude the period between 22nd February, 2011 to 30th October, 2014, on the basis of the Apex Court's decision in M. P. Steel Corporation (supra), the Applicant has not given any explanation, much less, any satisfactory explanation for the time spent between 30th June, 2009 to 22nd February, 2011,when the first Miscellaneous Application was filed i.e. 18 months. Besides, affidavit in support does not explain the delay of approximately one and half months after the withdrawal of the Appeal (L) No.1385 of 2014 from the order on t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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