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2006 (8) TMI 660 - AT - Income TaxCondonation of delay in filing of the appeal by 310 days - No cogent reasons produced - Condonation of delay of 20 days in filing the appeal - Addition of excise duty and sales-tax to the turnover for the purpose of computation of deduction under Section 80HHC - Disallowance made under Section 43B in respect of PF and ESI. Addition of excise duty and sales-tax to the turnover for the purpose of computation of deduction under Section 80HHC - HELD THAT - This issue is covered in favour of the assessee by the Hon ble jurisdictional High Court decision in CIT v. Sundarm Fasteners Ltd 2004 (10) TMI 33 - MADRAS HIGH COURT . In this case it was held that excise duty and sales-tax have to be excluded from turnover for the purposes of Section 80HHC. Respectfully following the precedent we decide the issue in favour of the assessee and against the Revenue. Condonation of delay of 20 days in filing the appeal - HELD THAT - The reason for the delay has been attributed by the Department that there were some administrative reasons for this small delay. Considering the circumstances and hearing the counsel the appeal is condoned. Disallowance made under Section 43B in respect of PF and ESI - HELD THAT - In this case the payments were made within the grace period allowed under the respective enactments. The same is covered in favour of the assessee by the Hon ble jurisdictional High Court decision in CIT v. Shri Ganapathy Mills Co. Ltd. 1999 (2) TMI 26 - MADRAS HIGH COURT - the Revenue s appeal is dismissed. Condonation of delay in filing of the appeal by 310 days - No cogent reasons produced - HELD THAT - There was a difference of opinion amongst the Members of the Bench and the following question was answered by the Third Member Whether in the facts and circumstances of the case there is sufficient cause on the part of the assessee for not filing the appeal within the period of limitation? The Hon ble Vice President Shri M.K. Chaturvedi sitting as Third Member vide his order dt. 11th Aug. 2006 has concurred with the view of the AM. Therefore in accordance with the majority view the issue is decided against the assessee and the appeal of the assessee is dismissed.
Issues Involved:
1. Inclusion of excise duty and sales tax in the turnover for Section 80HHC deduction. 2. Exclusion of 90% of miscellaneous receipts from profit for Section 80HHC deduction. 3. Condonation of delay in filing appeals. Detailed Analysis: 1. Inclusion of Excise Duty and Sales Tax in Turnover for Section 80HHC Deduction: The first issue is whether excise duty and sales tax should be included in the turnover for computing deductions under Section 80HHC. The appellate tribunal referred to the jurisdictional High Court decision in CIT v. Sundaram Fasteners Ltd., which held that excise duty and sales tax must be excluded from the turnover for Section 80HHC purposes. Respecting this precedent, the tribunal decided in favor of the assessee, ruling that excise duty and sales tax should be excluded from the turnover. 2. Exclusion of 90% of Miscellaneous Receipts from Profit for Section 80HHC Deduction: The second issue was the exclusion of 90% of miscellaneous receipts from profit for Section 80HHC computation. The tribunal found that this issue was neither raised before the CIT(A) nor adjudicated by them. As the issue did not emanate from the CIT(A)'s order, it was dismissed by the tribunal. 3. Condonation of Delay in Filing Appeals: a. Assessee's Appeal for AY 1995-96 (310 Days Delay): The assessee filed an appeal with a delay of 310 days, attributing the delay to the misplacement of the CIT(A)'s order. The tribunal referenced several precedents, including Sreenivas Charitable Trust v. Dy CIT and Vedabai Alias Vaijayanatabai Baburao Patil v. Shantaram Baburao Patil, which emphasized a pragmatic approach to condonation of delay, especially when the delay is short. However, the tribunal noted that the delay of 310 days was inordinate and not justifiable merely by the misplacement of documents. They concluded that condoning such a delay would be prejudicial to the Revenue and contrary to the principles laid down by the apex Court. Hence, the tribunal decided not to condone the delay. b. Revenue's Appeal for AY 1996-97 (20 Days Delay): The Revenue's appeal had a delay of 20 days due to administrative reasons. Considering the circumstances and after hearing the counsel, the tribunal decided to condone the delay. Separate Judgments: Assessee's Appeal for AY 1996-97: The tribunal partly allowed the appeal by ruling in favor of the assessee on the exclusion of excise duty and sales tax from the turnover but dismissed the issue of excluding 90% of miscellaneous receipts from profit. Assessee's Appeal for AY 1995-96: The tribunal dismissed the appeal due to the inordinate delay of 310 days, which was not condoned. Revenue's Appeal for AY 1996-97: The tribunal dismissed the Revenue's appeal, as the payments were made within the grace period allowed under respective enactments, and this was covered by the jurisdictional High Court decision in CIT v. Shri Ganapathy Mills Co. Ltd. Dissenting Opinion: One member dissented regarding the condonation of the 310-day delay for the assessee's appeal for AY 1995-96, arguing that substantial justice should prevail over technicalities. This member cited various precedents advocating for a liberal approach to condonation of delay when substantial justice is at stake. However, the majority view, which did not condone the delay, prevailed. Third Member's Opinion: The third member concurred with the majority view that the delay of 310 days could not be condoned, emphasizing that the delay was due to negligence and inaction on the part of the assessee. Final Decision: In accordance with the majority opinion, the tribunal dismissed the assessee's appeal for AY 1995-96 due to the inordinate delay, while the other appeals were decided as mentioned above.
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