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TMI Blog2023 (4) TMI 1333X X X X Extracts X X X X X X X X Extracts X X X X ..... e National Faceless Appeal Centre ['NFAC'], Delhi. 2. THAT the said Order was received by me on 27 May 2022 and hence an appeal ought to have been filed with the Income-tax Appellate Tribunal on or before 26 July 2022. 3. THAT the said Order dated 20 May 2022 was received in my junk mail and hence, I have inadvertently lost sight of the same. It was noticed by me only on 21 December 2022 and pursuant to the discussion with the Consultants, I was advised that an appeal ought to be filed against the Order passed by the, NFAC. 4. THAT due to the aforesaid reason there has been a delay of 191 days in filing the appeal with the Income-tax Appellate Tribunal. 5. THAT the failure to file the appeal on time with the Income-tax Appellate Tribunal was neither deliberate nor contumacious. I further declare that the above statements are true and correct and to the best of my knowledge and belief." 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a meritorious matter being thrown at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. (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 ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered to be inordinate or excessive. Furthermore, the Chennai Tribunal by majority opinion in the case of People Education and Economic Development Society (PEEDS) v. ITO (100 ITD 87) (Chennai) (TM ) condoned more 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 as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal would deliver justice rather than legalise injustice on technicalities. Therefore, when this Tribunal was empowered and capable of removing injustice, in our opinion, the delay of 2819 days has to be condoned 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 for the sake of overall justice we condone the delay and admit the appeal for adjudication. 6. On merits, brief facts of the case are assessee filed its return of income on 05.08.2019 declaring total income of Rs..21,56,790/-. Further, assessee filed revised return of income on 16.06.2020 by declaring the same income as declared in the original return of income. However, assessee claimed relief u/s. 90 of Income-tax Act, 1961 (in short "Act") of Rs..1,06,635/-by filing Form 67 along with the revised return of income. The CPC processed the same u/s. 143(1) of the Act and rejected the claim of the assessee and raised the demand of Rs..1,39,200/-. Aggrieved assessee preferred an appeal before the Ld. CIT(A) and filed d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifying the nature of Income: and amount of tax deducted therefrom which is in accordance with clause (b) of Rule 128(8)() of the Income-tax Rules, 1962. 1.6 Without prejudice to the above, the learned CIT(A) erred in not appreciating that submission of Form 67 is a procedural requirement and based on the substantive provisions of the Act read with the DTAA, the appellant should be eligible to claim relief of tax paid in Netherlands. 1.7 Without further prejudice, the appellant submits that he has complied with the procedural requirement and if there is any defect therein, the appellant should be provided an opportunity to remedy the defect. 2. Re.: Consequential levy of interest u/s 2348 and 234C of the Act: 2.1 The learned CIT(A) erred in confirming the levy of interest u/s 2348 and 234C of the Act without considering the duly filing of return of income by the Appellant. 3. Re.: General 3.1 Each one of the above grounds of appeal is without prejudice to the other. 3.2 The Appellant craves leave to add, alter, amend, substitute and/or modify in any manner whatsoever the foregoing grounds of appeal at or before the hearing of the appeal. 8. At the time of hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for furnishing such return of income. We find that coordinate bench in 42 Hertz Software India (P.) Ltd v. ACIT [2022] 139 taxmann.com 448 (Bangalore-Trib.) wherein following its earlier order in the case of Ms. Brinda Rama Krishna v. ITO [2022] 135 taxmann.com 358 (Bang-Trib) it was held that "one of the requirements of Rule 128 for claiming FTC is that Form 67 is to be submitted by assessee before filing of the returns and that this requirement cannot be treated as mandatory, rather it is directory in nature. This is because, Rule 128(9) does not provide for disallowance of FTC in case of delay in filing Form No. 67. Same view is also taken by a coordinate division bench in Vinodkumar Lakshmipathi V CIT(A) NFAC ITA No. 680/Bang/2022 06.09.2022. It is well settled that while laying down a particular procedure, if no negative or adverse consequences are contemplated for nonadherence to such procedure, the relevant provision is normally not taken to be mandatory and is considered to be purely directory. Admittedly, Rule 128 does not prescribe denial of credit of FTC. Further the Act i.e. section 90 or 91 also do not prescribe timeline for filing of such declaration on or before due ..... X X X X Extracts X X X X X X X X Extracts X X X X
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