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TMI Blog2019 (12) TMI 1444X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 days. The assessee has filed an application for seeking condonation of delay. He also filed an affidavit dated 15.10.2019 and application as below: Application contents as under: 1. In the above mentioned case, the Commissioner of Income Tax (Appeals)-I, Surat passed an order on 06-09-2007 which was duly served. The due date of filing this appeal before the Hon'ble ITAT was two months from the date of receipt of CIT(A)'s order, i.e. 05-11-2007. The appeal before Your Honours is however ' being tiled now, for which there is delay of about 4378 days. 2. There are genuine reasons for the delay which are being narrated before Your Honours for your sympathetic consideration and for the condonation of the delay, so that the appeal may kindly be admitted and the justice due to the appellant is rendered. 3. Subsequent to survey action carried out on 11-03-2005, all the group entities of M/s. M. D. Industries Private Limited, including individuals, HUF, firms etc. had filed their settlement applications before the Income-tax Settlement Commission. In all, twenty such applications were filed. Pursuant to the survey certain transactions were unearthed and these transa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inance Act, 2007, w.e.f. 01- 06- 2007 was challenged. The appellant filed writ petition for A.Y. 1999-00 to A.Y. 2005-06 before Hon'ble Bombay High Court. 11. 07-08-2009: Hon'ble Bombay High Court disposed of the writ petitions in nine cases of the Group, including the case of the appellant, and restored the settlement applications back to the ITSC. 12. 20-09-2019: The members of the Bench were of the view that the petition filed by you deserves to be dismissed/abated" as the group has not been able to proceed with writ petition filed before Hon'ble Bombay High Court by Shri Mohan D Patel, inspite of repeated assurance given by the appellant to the settlement commission. The Bench also pointed out that appellant has taken adjournments on several earlier occasions on this very ground. Since, the settlement petition in the main case, Shri Mohan D Patel, is no more pending before Settlement Commission, the Bench is of the firm view that no decision can be taken in this case until the petition is tagged with the settlement petition of Shri Mohan D. Patel. 13. 15-10-2019: Based on current circumstances, hearing held on 20-09-2019 and after consulting the council rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Lakhani Impex, bearing ITA No. 1647,1648 & 1649/Ahd/2016/SRT, & Others wherein delay was ranging between 1007 days to 2831 days has been condoned in cases of 11 entities. (iii) Order dated 29-05-2018 in case of Kirit Mohanbhai Patel, bearing ITA No. 1639,1821 & 1822/Ahd/2016/SRT & 678/Ahd/2015/SRT, & Others wherein delay was ranging between 1007 days to 3157 days has been condoned in cases of 17 entities. (iv) Order dated 29-05-2018 in case of Mohanbhai D. Patel (HUF), bearing ITA No. 1450/Ahd/2015/SRT, & Others wherein delay was ranging between 2810 days to 2831 days has been condoned in cases of 3 entities. Therefore, we humbly submit before Your Honours that issue of condonation of issue is a covered issue." 17. In view of the facts and circumstances explained above and the ratio laid down in the aforesaid decisions, it is humbly prayed that the delay of about 4378 days occurred in filing the captioned appeal may kindly be condoned in the interests of justice and equity, and it may be decided on merits and in accordance with law. It is submitted that by acceding to this humble request, the revenue is not going to be prejudiced but, on the other hand, the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance sheet of Shri Arvindbhai M. Patel, HUF it revealed that this assessee has shown loan/advances of investment in the name of M.D. International amounting to Rs. 24,15,654/-. When the AO called for information about source and nature of this advance, then nothing was submitted, and accordingly, an addition was made. Since we are not called upon to adjudicate these issues on merit, therefore, we do not deem it necessary to take note of the facts in other cases. Reference to the above facts is in order to appreciate whether there is a plausible explanation at the end of the assessees to explain the delay in filing of the appeal before the Tribunal order or not. These assessment orders were challenged before the ld.CIT(A). The ld.First Appellate Authority has dismissed the appeals on the ground that these appeals are not maintainable because the assessees have approached Settlement Commission and the proceedings were stated to be pending at different levels. Thus, for want of jurisdiction, the ld.CIT(A) has dismissed all the appeals. 5. With this background, let us note of the pleadings made in the application for condonation of delay. As observed earlier, we take the facts for r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Finance Act 2007 in section 245D(4) of the Act wherein if the settlement proceedings were not concluded by 31-03-2008, such proceedings would be abated. Accordingly, the petition of appellant for AY 2000-01 and 2004-05 were also abated. 8. 28-04-2008: All the 20 member of our Group, thereafter filed writ petitions in the Hon'ble Bombay High Court challenging the abatement orders passed u/s. 245HA of the Act by Settlement Commission as well as challenging the constitutional validity of sections 245D(2A), 245(20), 245D(4A) and 245HA of the IT. Act, 1961, as amended/inserted by Finance Act, 2007, w.e.f. 01-06-2007 which was admitted on 30-04-2008. The appellant filed writ petition for AY 2000-01 and 2004-05 before Hon'ble Bombay High Court. 9. 31-12-2008: The assessment proceedings were concluded by the assessing officer u/s. 147 of the Act for AY 2003-04. 10. 07-08-2009: Based on judgment of Hon'ble Bombay High Court in case of Star Television News Limited vs. UOI & Others (2009) 317 ITR 66 (Bom), wherein it was held by Hon'ble Bombay High Court that if the delay in disposal before 31-03-2008 is not attributable to the applicant, then Settlement Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... humbly prayed that the delay caused in lodging the captioned appeal may kindly be condoned. 15.In this connection, the appellant places reliance upon the following decisions with the relevant findings therefrom: Collector. Land Acquisition v. Mst. Katiji & Ors. [167 ITR 471 (SOI: "The Legislature has conferred power to condone delay by enacting section 5 of the Limitation Act, 1963, in order to enable the courts to substantial justice to parties by disposing of matters on merits. The expression 'sufficient cause' in section 5 is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice-that being the life-purpose of the existence of the institution of courts. A justifiably liberal approach has to be adopted on principle. 'Every day's delay must be explained' does not imply a pedantic approach. The doctrine must be applied in a rational, common sense and pragmatic manner. 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 a vested right in injustice being done b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d considerations in mind. " v) Saurashtra Cement and Chemical Industries Ltd, v. CIT [115 ITR 27 In AY 1965-66, the assessee had paid a sum of x 3,00,600/- to Gujarat State Electricity Board for laying electric power line to its factory, which was capitalized and depreciation thereon was claimed @10%. This claim was allowed by the ITO in the order passed for that year. Similar claim for the subsequent year, however, was disallowed by the ITO on the ground that the assessee was not the owner of the power line and such finding was sustained in first appeal. During the course of the hearing before the ITAT, the assessee realized the difficulty in getting depreciation and, accordingly, requested the Tribunal to allow it to withdraw the appeal which was granted. Subsequent to receipt of the order of the Tribunal on 07.12.1972, the assessee filed a revision application on 26.12.1972 praying that it should be allowed to treat the amount of x 3,00,600/- as revenue expenditure for A.Y. 1965-66 along with an application for condonation of delay. That was, however, rejected for delay. In the writ petition filed, the Hon'ble High Court held as under: "In the instant case, the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 14.3.2015. Whereas, the ld.CIT(A) has decided the appeal for want of jurisdiction on 23.12.2013. There is no explanation for this delay. Hon'ble Settlement Commission has also rejected their application under section 245E on 3.6.2016 Thereafter, they have filed application on 17.6.2016. According to the ld.DR, there is no plausible explanation at the end of the assessee. 8. We have considered rival contentions and gone through the record carefully. Subsection 5 of Section 253 contemplates that the Tribunal may admit an appeal or permit filing of memorandum of cross-objections after expiry of relevant period, if it is satisfied that there was a sufficient cause for not presenting it within that period. This expression "sufficient cause" employed in the section has also been used identically in sub-section 3 of section 249 of Income Tax Act, which provides powers to the ld.Commissioner to condone the delay in filing the appeal before the Commissioner. Similarly, it has been used in section 5 of Indian Limitation Act, 1963. Whenever interpretation and construction of this expression has fallen for consideration before Hon'ble High Court as well as before the Hon'ble Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi lain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court allowed their petitions and remitted that matter back to the file of Settlement Commission for adjudication. Question before us is how the assessees have harboured a belief that they should not file appeals before the Tribunal. According to them, they were expecting that their cases will be taken up by the Settlement Commission in all assessment years. According to the assessee, they have harboured this belief on the advice of their counsel Shri Hemant Jadia, whose opinion is available on the paper book. 11. We have considered this opinion. The ld.counsel for the assessee also took us through letter of Pr. Commissioner of Income Tax, Surat dated 26.5.2016 written to the CIT(DR), Settlement Commission. This letter was rebuttal to reply to Rule 9 report made in the M.D. Group of cases. While giving reply to the cases of Shreya Traders, one of the concerns of group, even the Department has supported the application of the assessee moved under section 245E of the Income Tax Act for taking up petition relevant to the Asstt.Year 2004-05 for consideration. It is pertinent to observe that when the Settlement Commission has dismissed the application of the appellants on 20.2.008, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal was that, they were expecting that their cases will be taken by the Settlement Commission in all assessment years. According to the assessee, they have harboured this belief on the advice of their Counsel, whose opinion is available on the paper book. Moreover, under the same set of facts the Co-ordinate Bench of ITAT has already taken a view and has condoned the delay under the identical circumstances in ITA No.1635 to 1638 & 1655/Ahd/2016 for A.Y. 2003-04 & 2001-02. Since the Co-ordinate Bench has already taken a view by condoning the delay, therefore in order to maintain judicial consistency and judicial discipline, we also deem it appropriate to condone the delay in filing of appeals, accordingly, we proceed to decide the appeal on merits. 7. Since the ld.CIT(A) has not adjudicated the issues on merits rather, dismissed the appeals on account of non-maintainability. In the light of above decision of Co-ordinate Bench of ITAT, we deem it appropriate to set-aside orders of the ld.CIT(A) on these appeals and restore all these to the file of the ld.CIT(A) for re-adjudication. 8. In the result, Eight appeals of the Assessee are allowed for statistical purpose. 9. O ..... X X X X Extracts X X X X X X X X Extracts X X X X
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