TMI Blog1987 (12) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... he department, took us through the petition dt. 18th Aug., 1987. The officer who filed the appeal has since been transferred and the petition dt. 18th Aug., 1987 has been written by his successor. It is stated that the order under appeal was received on 4th March, 1986 but the relevant file was in transit due to transfer of the file and it took some time for the said file with the said order therein to reach the ITO. The officer who was holding the charge at that time was also holding the additional of charge of E-Ward, Trust Circle, Calcutta. The declaration of Higher Income and Wealth Scheme was in force. There were several transfers of officers of this Ward. From 11th July, 1986 to 6th Aug., 1986 one officer held charge. Then, a new offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities agree that a second appeal is filed. Normally, all the matters are done within the prescribed period of 60 days. The number of second appeals filed in any month is quite large. The special circumstances of this case unfortunately prevented the procedure to be completed within the stipulated time. 2. Shri S.K. Bagaria, the learned representative for the assessee, on the other hand, strongly opposed the condonation petition filed by the Department. In fact, he has filed an affidavit dt. 16th Dec., 1987 sworn by Shri H.C. Valia, a trustee of the assessee trust. In this affidavit, it is stated that the petition filed by the Department does not give any satisfactory explanation, especially from 29th Sept., 1986 when the appeal ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal considered the aforesaid case of Katiji. 3. We have considered the contention of both the parties. We find that the decisions of the Orissa High Court and the Patna High Court have not taken note of the case of Katiji. The two decisions of the Customs Tribunal have no doubt taken note of the case of Katiji but the delay was not condoned in those cases because of absence, of sufficient cause. In the case before us, we find that the facts are indeed peculiar. In a short span of time, several officers held the charge of C-Ward Trust Circle. The order under appeal was in the file which was received on transfer. We are inclined to believe that the file was lost sight of as stated in the condonation petition till 10th Sept., 1986. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. Hence, ITO did not allow the assessee the benefit of s. 11 of the Act because the provisions of s. 13 were clearly violated. 5. The assessee moved the ITO by way of a miscellaneous petition and requested for rectification of the original assessment order. The ITO by his order dt. 30th April, 1985 under s. 154 of the Act held that the personal guarantee of a partner is not adequate security of the loan given to the firm in which the guarantor is a partner. Hence, the benefit under s. 11 has been rightly disallowed in the original assessment order so that there was no mistake apparent from record which could be rectified under s. 154 of the Act. Hence, he rejected the assessee's petition. 6. The assessee appealed to the AAC and cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. At the time of granting the loan only the personal security of a trustee who was a partner of the debtor firm was taken. Relying on the decision in the case of Patel Bhogilal we hold that the loan was given without any security. The fact that the loan was repaid after three months is of no consequence because the amount was lent for a part of the previous year without security to a prohibited person. This fact was before the ITO when he made the original assessment and he has taken the correct decision thereon to the effect that the assessee lost the exemption under s. 11 because of the above loan. In the petition under s. 154 filed by the assessee no new facts have been alleged and so the ITO was quite correct in rejecting the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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