TMI Blog1993 (8) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... to file memorandum of cross objections within 30 days from the date of receipt of the appeal papers from the Tribunal. However, the cross-objections were filed on 18-5-1992. Thus, there is a delay of 518 days in filing the cross-objections. The cross-objections mainly dispute the disallowance under section 37(3B) in respect of expenditure on running and maintenance of motor car and expenditure on Diwali cards and posters considered as sales promotion expenses for the purpose of disallowance under section 37(3A) of the Act. The appeals filed by the revenue as well as the cross-objections filed by the assessee were fixed for hearing on 23-8-1993. While the appeals filed by the revenue were heard and disposed of, the cross objections being barred by time were not heard on merits and the counsel appearing on behalf of the assessee was directed to advance arguments regarding the causes for the delay in filing the cross objections. The assessee's counsel Shri S.N. Soparkar submitted that the assessee came to know from the order of the ITAT Ahmedabad Bench in IT Appeal No. 1410/Ahd/1988 for assessment year 1984-85 reported in Ahmedabad CA Journal 1991 at page 510 that the expenditure on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed and the Commissioner of Income-tax declined to condone the delay and dismissed the revision petition. Being aggrieved, the assessee-company filed a writ petition before the Hon'ble Gujarat High Court averring that the assessee became aware of the true legal position in respect of its grievance only after the pronouncement of judgment by the Supreme Court and since the decision of the Supreme Court amounted to declaration of law as per article 141 of the Constitution of India and such declaration having retrospective effect in law, the assessee was entitled to get its grievance redressed through revision proceedings under section 264 of the IT Act before the Commissioner and the Commissioner ought to have condoned the delay on this ground. The Hon'ble Gujarat High Court after considering the facts and the merits of the case held as under : "The decision of the Supreme Court amounted to a declaration of law as contemplated by article 141 of the Constitution of India. This declaration of law had retrospective effect and rendered the assessment of the expenditure in connection with the debentures illegal, because that assessment was passed on a wrong view that the expenditure i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a mutual mistake. Therefore, the Tribunal was right in holding that the assessees had sufficient cause for not filing the appeals within the time prescribed, and in holding that the delay ought to have been condoned." 4.2 Similar view was taken by the Calcutta High Court in the case of Sothia Mining Mfg. Corpn. Ltd. that after decision of the Supreme Court if an appeal is preferred, then the delay has to be condoned for this reason. The Supreme Court while deciding the case of Mst. Katiji has laid down as under : "Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step-motherly treatment when the 'State' is the applicant praying for condonation of delay. In fact, experience shows that on account of an impersonal machinery (no one is charge of the matter is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t provisions of the tax laws for declaration of law by Supreme Court or for that matter by the appropriate jurisdictional High Court. If the delay is condoned in the instant case on the strength of an earlier decision of Ahmedabad Bench of the Tribunal as stated in the condonation petition and if at a later stage, the same is upset or reversed either by the Jurisdictional High Court or by the Apex Court, then it will amount to condonation of delay without there being a reasonable cause and the opposite side will be prejudiced on account of this act of the Tribunal. The Gujarat, Andhra Pradesh and Calcutta High Courts in the cases referred to above have laid down that after the decision of the Supreme Court, an assessee is entitled to file appeal or revision petition though belatedly before the concerned authorities, because the decision/judgment of the Supreme Court amounts to declaration of law of the land as per article 141 of the Constitution of India. Same cannot be said about the decisions rendered by this Tribunal though it is a judicial body and performs the judicial functions of the State in vetting, deciding and adjudicating the disputes brought before it in accordance wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rat AIR 1981 SC 733. The assessee's counsel has taken strong aid from the decision of the Supreme Court in the case of Mst. Katiji which has laid down that it is not necessary that every day's delay must be explained and a pedantic approach should not be taken while considering a case for condoning the delay in filing the appeal. In our view, this case cannot come to the rescue of the assessee, because in that case the State of Jammu Kashmir preferred an appeal late before the High Court by four days and Their Lordships of the Supreme Court have observed that the State as a litigant does not stand to gain by filing the appeals beyond the prescribed period of limitation. This decision supports more the case of the revenue than that of the assessee. Nonetheless the observations of Their Lordships of the Supreme Court in Mst. Katiji's case are registered in our mind but at the same time, we cannot remain passive or oblivious to the other judgments rendered by the Apex Court in relation to the condonation of delays in pursuing the remedies available in an enactment particularly, a special enactment like the Income-tax Act, 1961 or the other related direct tax laws namely, the WT Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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