TMI Blog2023 (5) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... Raj Mansukhani [ 2021 (3) TMI 252 - ITAT MUMBAI ] we also hold that the above receipt of compensation for hardship is in the nature of capital receipt. Accordingly, the addition made by the Assessing Officer is deleted. Ground raised by the assessee is allowed. - ITA NO. 2823/MUM/2022 - - - Dated:- 3-4-2023 - SHRI KULDIP SINGH , HON'BLE JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN , HON'BLE ACCOUNTANT MEMBER For the Assessee : Shri Ashwin Chhag For the Department : Shri Ashish Kumar Deharia ORDER PER S. RIFAUR RAHMAN ( AM ) 1. This appeal is filed by the assessee against order of Learned Commissioner of Income Tax (Appeals)-41, Mumbai [hereinafter in short Ld.CIT(A) ] dated 23.05.2018 for the A.Y.2013-14. 2. At the outset, we observe that the present appeal is filed by the assessee with a delay of 1566 days and assessee also filed an affidavit in this regard and prayed for condonation of delay. In the affidavit assessee has submitted as under: - (1) It is evident from the order of assessment completed u/s 143(3) of the Income Tax Act, 1961 that there were two addition made in the course of assessment u/s.143(3) on account of drawings Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly to the registry of this Hon ble tribunal on 04.11.2022 in view of which delay worked out was 1566 days. (viii) In view of the above, I pray this Hon ble Bench of the Tribunal to condone the delay and admit my aforesaid appeal, ignoring the technicality and considering the substantial justice, as the delay is not caused by the negligence but under the bonafide belief that the order of the ld. CIT(A) was as per the law and following the binding precedent which found to have missed. That whatever I have stated above is true to the best of my knowledge, except vide para no. v which is based on information received from CA Ashwin S Chhag and which I believe it to be true. 3. Ld. DR objected for the condonation of delay and however, he has not filed any submissions against the affidavit and the facts described in the above affidavit. 4. Considered the submissions of both parties, we observe that in the case of M/s. Midas Polymer Compounds Pvt. Ltd., v. ACIT in ITA.No. 288/Coch/2017 the Coordinate Bench of the Tribunal has considered the issue of condonation of delay and by following various judicial precedents along with the decision of the Hon'ble Supreme Court in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. (3) 'Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational, commonsense and pragmatic manner. (4) 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 in injustice being done because of a non deliberate delay. (5) There is no presumption that delay is occasioned deliberately, 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 the judiciary is respected not on account of its power to legalise 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 nonde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e than six hundred days delay. It is pertinent to mention herein that the view taken by the present author in that case was overruled by the Third Member. 6.4. The Madras High Court in the case of Sreenivas Charitable Trust (supra) held that no hard and fast rule can be laid down in the matter of condonation of delay and the Court should adopt a pragmatic approach and the Court should exercise their discretion on the facts of each case keeping in mind that in construing the expression sufficient cause the principle of advancing substantial justice is of prime importance and the expression sufficient cause should receive a liberal construction. Therefore, this Judgment of the Madras High Court (supra) clearly says that in order to advance substantial justice which is of prime importance, the expression sufficient cause should receive 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondoned and the appeal of the assessee has to be admitted and disposed of on merit. 6.7 In view of the above, we condone the delay of 2819 days in filing the appeal and admit the appeal for adjudication. 5. Respectfully following the above said decision and also considering the overall facts on record that the assessee was not properly guided by his counsel and for the sake of overall justice we condone the delay with such delay. 6. Brief facts of the case are, assessee filed its return of income for the A.Y. 2013-14 on 27.03.2013 declaring total income of ₹.16,90,830/-. The return was processed u/s. 143(1) of Income-tax Act, 1961 (in short Act ). The case was selected for scrutiny under CASS and notices u/s. 143(2) and 142(1) of the Act were issued and served on the assessee. In response AR of the assessee attended and submitted the relevant information as called for. 7. Assessee is an individual and dealing in shares, trading business and also receives commission and consultancy income. During the assessment proceedings, Assessing Officer observed from the capital account submitted by the assessee that assessee has shown a receipt of of ₹.3,73,191/- a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the assessee Ld.CIT(A) rejected and distinguished the case laws relied on by the assessee in the case of Kushal K. Bangia v. ITO in ITA.No. 2349/Mum/2011 and sustained the addition made by the Assessing Officer. 11. Aggrieved assessee is in appeal before us raising following grounds in its appeal: - Ground No.1 Ld. CIT(A) is erred to confirm the addition made, despite this being a covered issue by the decision of the Co- Ordinate Bench of this Hon ble ITAT whereby it is made clear that impugned addition made is capital receipt and hence, not chargeable to tax. Ground No.2 Appellant craves to add, amend alter to the grounds raised above 12. Considered the rival submissions and material placed on record, it is fact on record that assessee has received ₹.3,73,191/- from the builder for alternate accommodation. However, assessee has not utilized these funds for any accommodation. However, he adjusted and lived with his parents. It clearly indicates that even though assessee has not utilized the rent received for his accommodation, however, he has faced hardship by vacating the flat for redevelopment and also adjusted himself during the period. We observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008-09 Bench E and ITA No 5271/Mum/2012 assessment year 2008-09 Bench D the Tribunal held that the amounts received as compensation for hardship , rehabilitation and for shifting are not liable to tax We, therefore , respectfully , the above decisions are of the considered view that the amounts received by the assessee as hardship compensation, rehabilitation compensation and for shifting are not liable to tax and the order passed by the first appellate authority cannot be sustained. Thus the order of CIT(A) is reversed and ground is allowed in favour of the assessee. 16. In the result, appeal of the assessee is partly allowed, as above. 6. Respectfully following the co-ordinate Bench decision, we set aside the findings of the ld. CIT(A) on this issue and direct the AO to delete the addition made of Rs.2,60,000/-. Accordingly, the ground No.6 is allowed. 13. Respectfully following the above said decision, we also hold that the above receipt of compensation for hardship is in the nature of capital receipt. Accordingly, the addition made by the Assessing Officer is deleted. Ground raised by the assessee is allowed. 14. In the result, appeal filed by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
