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TMI Blog2007 (2) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... d out that the appeal is barred by limitation by 8 years and 47 days. The department moved an application for condonation of delay stating therein that the Assessing Officer recommended filing of appeal before the ITA T vide his Office letter No. 3038 dated 19-2-1998 and that the Office of Dy. CIT Range II, Chandigarh also recommended filing of appeal vide his Office letter No. 2435 dated 23-2-1998 and the ld. CIT, Chandigarh approved the filing of appeal vide order sheet dated 23-2-1998. It has further been stated that the second appeal was not filed inadvertently possibly due to communication gap between the Office of ld. CIT and the Assessing Officer. It has further been stated that the appeals for assessment years 1995-96 and 1997-98 ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cal. 238. He further submitted that the ld. CIT(A) while adjudicating the appeal of the assessee for assessment year 1995-96 in her order dated 28-7-1998 clearly mentioned at page No. 3 that no appeal had been filed by the department for the preceding year wherein her predecessor directed the Assessing Officer to allow depreciation in WDV of the machinery as per rule. He referred to page No.3 of assessee's compilation which is the copy of order of ld. CIT(A), Chandigarh dated 28-7-1998 for assessment year 1995-96 passed under section 250(6) of IT Act. Ld. Counsel for the assessee further drew our attention towards the order of the Tribunal dated 23-9-2003 in ITA No. 1081/Chandi./1998 for assessment year 1995-96 in assessee's own case wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns for delay are given that there was communication gap between the officers of the department. In our view this is not a valid ground to condone the delay. 6.1 Hon'ble Supreme Court in the case of UOI v. Tata Yodogawa Ltd. 1988 (38) ELT 739 held that delay due to inter departmental correspondence and processing is not a sufficient cause for condonation of delay. Similarly in the case of Calcutta Municipal Corpn v. Pawan Kumar Saraf J.T. 1999 (1) S.C. 39 it was held by the Hon'ble Apex Court that even if the Court should be liberal in condonation of delay, it should be unexcusable unless sufficient cause is shown. Their Lordships in para 20 in the above case held as under: "It was submitted that the Court should be liberal in condoning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he delay made thereafter day-by-day till the actual date of the filing of the application." 6.4 In one another case of Ashutosh Bhadra Hon'ble Calcutta High Court has taken a similar view by holding as under: "The existence of "sufficient cause" is a condition precedent for the exercise of discretion under section 5 of the Indian Limitation Act "sufficient cause" must mean a cause beyond the control of the party invoking the aid of the section. A cause for delay which is party could have added by the exercise of the care and attention cannot be a sufficient cause. In other words, the Court must be able to say, having regard to the facts and circumstances of the case that the delay was reasonable. A cause arising from the negligence of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al in its order dated 23-9-2003 for assessment year 1995-96 pointed out that no appeal had been filed by the department against the order of ld. CIT(A) for assessment year under consideration, i.e., assessment year 1994-95, no action was taken by the department. So, it cannot be believed that there was a communication gap in the department which has been claimed as main reason for filing the appeal belated since the fact was in the notice of the department in the year 1998 itself when the order of ld. CIT(A) had been received by the department. So, we do not accept this contention of the ld. D.R. for the revenue that there was a communication gap in the department which is a reasonable cause. In our opinion, faulty internal working in the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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