TMI Blog2023 (12) TMI 499X X X X Extracts X X X X X X X X Extracts X X X X ..... e allow the Cross Objection of the assessee resulting into deletion of the adjustments made in respect of the SDTs by the Ld. AO. - Shri Sanjay Garg, Judicial Member And Shri Girish Agrawal, Accountant Member For the Revenue : Shri Kapil Mondal, Addl. CIT, DR For the Assessee : Shri Soumen Adak, FCA Shri Ashish Poddar, FCA ORDER PER GIRISH AGRAWAL, ACCOUNTANT MEMBER: The appeal filed by the revenue and the Cross Objection filed by the assessee are against the order of Ld. CIT(A)-22, Kolkata dated 31.01.2019 passed against the assessment order of Ld. DCIT, Circle-5(1), Kolkata u/s. 143(3) r.w.s. 92CA(3) of the Income-tax Act, 1961 (hereinafter referred to as the Act ) dated 23.02.2018 for AY 2014-15. 2. The appeal filed by the Department is delayed by 85 days for which petition for condonation of delay is placed on record. The reasons explained for delay relate to various procedural approvals and communication which took time for filing the present appeal. We also note that there is a delay of 110 days in filing the Cross Objection of the assessee for which also petition for condonation of delay along with affidavit is placed on record. To explain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 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. 2.2. Similarly, we would like to make reference to authoritative pronouncement of Hon'ble Supreme Court in the case of N.Balakrishnan Vs. M. Krishnamurthy (supra). It reads as under: Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with a justice oriented approach. 2.4. In light of the above, if we examine the facts then it would reveal that there is a brief delay of 85 days in filing of the appeal by the Department. In its application it has been contended by the revenue that delay occurred on account of time taken in getting the approvals by the concerned officer from the competent authority for filing the appeal. Considering the brief delay and the explanation of the revenue, we condone the same and admit the appeal. 2.5. As far as the delay in filing of the cross-objection is concerned, it is pertinent to note that sub-Section (4) of Section 253 of the Act, authorizes the respondent to file cross-objection against any part of the impugned order by which it is aggrieved. In the present case, the assessee has filed the cross-objection well in advance of the actual listing of the appeal on the board. Further, the impugned order on which the cross-objection has been filed by the respondent/assessee is open for debate in the appeal of the appellant/revenue. The respondent/assessee has explained the reason for such delay in the affidavit placed on the record. We have gone through the same. The affidavit i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and clause 22 of Form 3CEB to demonstrate that the transactions in respect of which adjustments have been made are all SDTs, carried out with its. 7.1. Ld. Counsel thus, submitted that once clause (i) of section 92BA has been ommitted by the Finance Act, 2017 from the statute, the resultant effect is that the said provision had never existed and as such in the present case the reference and adjustment proposed u/s. 92CA and addition made in the assessment order are erroneous and contrary to the law. 7.2. Ld. Counsel submitted that the position of law with regard to omission of a provision from a statute is settled, which is the normal effect of repealing a statute or deleting a provision is to obliterate it from the statute-book as completely as if it had never existed. If a provision of a statute is unconditionally omitted without a saving clause in favour of pending proceedings, all actions must stop where the omission finds them, and if final relief has not been granted before the omission goes into effect, it cannot be granted afterwards. 7.3. He further submitted that the said view has been settled by the Hon ble Supreme Court in the cases of Kolhapur Canesugar Works ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TPO and DRP is unsustainable in the eyes of law. The said finding is based on the authoritative principles enunciated by the Hon'ble Supreme Court in Kolhapur Canesugar Works Ltd. referred to herein supra which has been followed by Co-ordinate Bench of this Court in the matter of M/s. GE Thermometrias India Private Ltd., stated supra. As such we are of the considered view that first substantial question of law raised in the appeal by the revenue in respective appeal memorandum could not arise for consideration particularly when the said issue being no more res integra. 9.2. Therefore, respectfully considering the above, impugned order is not sustainable. Considering the above facts and circumstances in their setting as a whole, we allow the Cross Objection of the assessee resulting into deletion of the adjustments made in respect of the SDTs by the Ld. AO. 9.3. As already noted above, appeal by the revenue is in respect of deletion of adjustments made for various SDTs which do not survive in view of the decision given by us while disposing the Cross Objection of the assessee as stated above. Accordingly, appeal of the revenue is dismissed. 10. In the result, appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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