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TMI Blog2013 (7) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... decided in favor of assessee. Taxability of Earning from Cricket - professional cricketer or amateur cricketer - Benefit of CBDT's Circular No.447 – Assessing Officers denied exemptions – Held that:- In all subsequent years, in order passed under Section 143(3), Assessing Officer himself accepted that assessee to be amateur cricketer and not professional cricketer – No justification to hold that during accounting year relevant to AY 1992-93 and 1993-94, assessee was professional cricketer – Exemption allowed to assessee which is available as per Board's Circulars to amateur cricketers – Decided in favor of assessee. - ITA Nos. Nos.4788/Del/2003 & 4789/Del/2003, Cross Objection Nos.344/Del/2011 & 345/Del/2011 - - - Dated:- 28-6-2013 - Shri G. D. Agrawal And Shri Chandra Mohan Garg,JJ. For the Petitioner : Shri Tarun Seem, Sr. DR. For the Respondent : Shri K. Sampath and Shri Raj Kumar, Advocates. ORDER Per G. D. Agrawal, VP : ITA Nos.4788 4789/Del/2003:- These appeals by the Revenue are directed against the order of learned CIT(A)-II, New Delhi dated 4th July, 2003 for the assessment years 1992-93 1993-94. 2. The common ground raised in these appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted under Section 143(3) of the Act in respect of the assessment years 1992-93 and 1993-94 also. Since this error is apparent and the learned counsel for the parties have fairly stated that no such assessment has been done in respect of the years in question in these appeals, we feel that it would be appropriate that the matter with regard to these years is remitted to the Tribunal for consideration afresh. 4. Consequently, we dispose of these appeals and direct that the Tribunal shall consider the appeals filed by the Revenue for the assessment years 1992-93 and 1993- 94 afresh." 4. Accordingly, these appeals were fixed for hearing. At the time of hearing before us, the learned counsel fairly admitted that the original assessment for these two years was not made under Section 143(3) and, therefore, proviso to Section 147 was not applicable. He, however, stated that all the facts were on record and, therefore, even if original assessment was made under Section 143(1), reopening is based upon the change of opinion. 5. Learned DR, on the other hand, stated that when there was no original regular assessment, obviously, no opinion was expressed by the Assessing Officer. When no o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... length with regard to condonation of delay. He stated that when the appeal was fixed for hearing originally, i.e. on 14th February, 2006, the appeal memo from the department was not served upon the assessee and the assessee sought adjournment vide letter dated 14th February, 2006 in which the assessee had requested for the supply of copy of the grounds of appeal as filed by the department. However, the Bench rejected the assessee's application for adjournment and the case was heard in which Revenue's appeal was dismissed. Thus, the appeal was decided by the ITAT even without the supply of copy of appeal memo by the department. The assessee can file the cross-objection only after the receipt of copy of appeal memo filed by the department. That after the order of ITAT, wherein the Revenue's appeal was dismissed, the assessee had no occasion to file the cross-objection because the impugned assessment order stood annulled. That the Hon'ble High Court decided the matter against the assessee vide order dated 21st August, 2008. However, the person who appeared before the High Court on behalf of the assessee never advised the assessee that any cross-objection is now required to be filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench with the remark "Case Heard. Adj. rejected.". We could not find on record any evidence of service of appeal memo and the grounds of appeal upon the assessee. In view of the above, we accept the assessee's contention that he did not had any occasion to file the cross-objections after the filing of the appeals by the Revenue. In the original order, the ITAT had dismissed the Revenue's appeals and thereby, upheld the annulling of assessment. Therefore, till the order of the Hon'ble Jurisdictional High Court, the assessee had no grievance. However, Hon'ble Jurisdictional High Court set aside the matter of the ITAT for the assessment years under appeal on 21st August, 2008. Thereafter, the assessee ought to have filed the cross-objections. However, we notice that before the Hon'ble Jurisdictional High Court, one Shri S.Krishnan appeared on behalf of the assessee, viz., Shri Kapil Dev. While, before the ITAT, he is represented by Shri K. Sampath. The assessee is a renowned cricketer and, therefore, we accept the contention of the learned counsel that the assessee was not aware about the intricacies of the Income-tax Act and his counsel, who appeared before Hon'ble High Court, never ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of N.Balakrishnan Vs. M. Krishnamurthy (supra), Hon'ble Apex Court held as under:- "The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the court in different situations is not because on the expiry of such time a bade cause would transform into a good cause. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy ... for the redress of the legal injury so suffered. The law of limitation is thus founded on public policy." 13. In the case of Auto Centre (supra), Hon'ble Allahabad High Court held as under:- "In matters of condonation of delay a pragmatic view should be taken and there should be a liberal approach. The law of limitation is enshrined in the maxim interest reipublicae ut sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time." 14. Respectfully followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the addition made by the Assessing Officer may be deleted. 17. Learned DR, on the other hand, relied upon the orders of authorities below. 18. We find that the identical issue came up for consideration in assessee's own case for AY 1994-95 wherein in the original assessment, the Assessing Officer denied the exemption claimed by the assessee on the cricket earning on the ground that the assessee is a professional cricketer and not an amateur. On appeal before the ITAT, the ITAT, vide order dated 28th November, 2008 in ITA Nos.3895, 3896 3897/Del/2002, set aside the matter to the file of the Assessing Officer with the following direction:- "5. We have considered the submissions of the representatives of both the parties and orders of authorities below. We find substance in the submission of the ld.AR and in the interest of justice we consider it prudent to restore the matter to the Assessing Officer after setting the orders of authorities below with a direction to decide the issues disputed before us after considering the order of Tribunal in the case of Shri Ajay Jadeja dated 21 July 2008 (supra) and the documents of expenses as may be produced by the assessee before him ..... X X X X Extracts X X X X X X X X Extracts X X X X
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