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TMI Blog2013 (10) TMI 645X X X X Extracts X X X X X X X X Extracts X X X X ..... ling these appeals. 3.1 I.T.A. No. 1543/H/2010 - Assessment year 1995-96 : In this year, the assessee Shri Vishnu Cement Limited filed an appeal against the orders of CIT(A) before the ITAT with a delay of 9 years ten months and 20 days. The Tribunal registered the appeal with the delay of 2934 days. 3.2 ITA No. 1544/H/2010 - Assessment year 1996-97: The assessee filed this appeal before this Tribunal with a delay of 8 years one month and 3 days and the same was registered by the Tribunal with the delay of 3602 days delay. 3.3 ITA No. 1618/H/2010 - Assessment year 1999-2000: The assessee filed this appeal with a delay of 8 years and 24 days. The Tribunal has registered the appeal with delay of filing the appeal by the assessee for a period of 2946 days. 3.4 ITA No. 76/H/2001- assessment year 1997-98: This appeal is filed by the assessee seeking rectification of the order of CIT(A). In this appeal the assessee has sought condonation of delay in filing its appeal before this Tribunal for the total period of 1266 days and the Tribunal has registered the delay of 3 years six months and 21 days. 4. The assessee has offered a detailed submission with prayer to condone the delay in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e prayed that the delay to be condoned and appeals to be disposed on merits. 7. He submitted that the assessee had paid funded interest in the previous years to the assessment years out of the interest funded in assessment year 1993-94. The appeal is pending against the assessment year 1993-94 before the CIT(A) Guntur. The Tribunal may direct the revenue to find out the veracity of the information. The information is as follows: Sl. No. Appeal No. Assessment year Payment of funded interest in Rs. Lakhs 1 1543/H/2010 1995-96 133.15 2 1544/H/2010 1996-97 258.05 3 1618/H/2010 1999-00 309.06 4 0076/H/2011 1997-98 244.07 Total amount of funded interest paid in the assessment years 944.33 8. He submitted that the assessee has come before the Tribunal in respect of the first three appeals against appeal orders of the CIT(A) with additional ground and in respect of 4th appeal against rectification of appeal orders with an undertaking that the funded interest in respect of interest funded in assessment year 1993-94 will be withdrawn from the appeal before the CIT(A) Guntur. The payment is to be allowed in one year. 9. Accordingly to A.R. due to retro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the order of BIFR is evidence. Nobody should ask any paper other than legally recognised evidence. 12. He submitted that on this count also, there is sufficient cause to specify that the first assessment order is not as per law. There is retrospective amendment to add the same for multiple appeals. The entire exercise is due to ignorance of law by Assessing Officer and not bringing the proper legal position by the assessee. The assessee alone cannot be found fault in the exercise. 13. The AR further brought to the notice of the Tribunal that Explanation 3C was inserted to section 43B specifying the payment of funded interest will be allowed in the year of payment not in the year of funding. The Tribunal on prayer for additional ground in ITA No.1221/H/2004 and 721/H/2007 dated 9.1.2009 admitted the additional ground and restored the matter to the file of Assessing Officer. 14. He also drew our attention to the additional ground raised by the assessee in that appeal which is as follows: "On the facts and in the circumstances of the case, the assessee ought to have been allowed the deduction on payment basis in respect of funded interest actually paid to financial institution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee prayed to delete the addition of payment of royalty of Rs. 3 lakhs and to admit the additional grounds in respect of donations of Rs. 44,04,176/- which is given in the course of business. He also relied on the order of the Tribunal in assessee's own case dated 9.1.2004 in ITA No. 1221/H/2004 which is in its favour. 19. He also prayed to admit the additional ground in respect of payment of penal interest u/s 234B and 234C on MAT. 20. He further requested the Bench to admit the additional ground in respect of disallowance of notional interest of Rs. 9,59,619 on loans given to sister concerns and ground relating to prior period expenses Rs.60,500/- which crystallised in the previous year and payment of funded interest Rs.309.6 I.T.A. No.76/H/2011 assessment year 1997-98 21. The assessee is filed this appeal against rejection of rectification petition rejecting the assessee contention to rectify the appeal orders allowing the payment of funded interest Rs. 244.07 specifying that the retrospective amendment does not exist at the time of passing the appeal order. The Income Tax Act uses the word deemed in many number situations and many number of section. The insertion of Explanat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng. This explanation has been made retrospectively effective from 1.4.1989 and was introduced by the Finance Act 2006. 25. He submitted that it has also been stated by the assessee that BIFR in respect of the interest payable in 1993-94. In view of the filing of appeal in respect of allowing funded interest in the year of funding i.e. 1992-93 assessment year 1993-94, the payment of funded interest during the previous year 1996-97 assessment year 1997-98 was not claimed as deduction. To avail benefit of the insertion of explanation 3C to section 43B, the assessee has filed the present appeal. The assessee has claimed that he will withdraw the claim for payment of funded interest for the assessment year 1993-94 if his claim for the assessment year 1995-96 is allowed. 26. According to the DR, the claim of the assessee for condonation of delay in filing the appeal should not be considered for the following reasons. 27. In the case of DCIT Vs. Jaya Publications, the revenue has sought condonation of delay. In this case reported in ITA Nos. 1221 to 1223/Mad/2002 and 279 to 281/Mds/) 2006 dated Nov. 30, 2007, the Tribunal Chennai A Bench has held as under : "The court has to exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a delay of more than 4 years after the said amendment was incorporated in the stature. Nothing prevented the assessee from filing appeals even though appeal before the CIT(A) was pending as the assessee is supposed to take due care." 28. He submitted that as observed by the Tribunal Chennai in the case of DCIT Vs. Jaya Publications quoted supra, the law assists those who are vigilant and not those who sleep over the rights. This principle is embodied in the dictum - vigilanti - bus non dormientibus jura subsvenuint. IN the case of Ramlal V. Rewa Coalfields Ltd. supra, the Hon'ble Apex Court has held that the cause for the delay in filing the appeal, which by due care and attention, could have been avoided, cannot be a sufficient cause within the meaning of the limitation provision. 29. He submitted that if the assessee slept over the matter and did not file for 10 years just because appeal before the CIT(A) is pending, he has no legal or moral ground or cogent reason to file such an abnormally belated appeal. If the delay in filing the appeal by the assessee is condoned, it would open a Pandora's box of large number of assessees coming with appeals time barred by more than a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard. We have to exercise the discretion on the facts of each case, keeping in mind that in considering the expression 'sufficient cause', the principle of advancing substantial justice is of prime importance. It is pertinent to note that in the case of Mst. Katiji cited supra, the delay was only 4 days. The law assists the vigilant, not those who sleep over right. The delay cannot be condoned simply because the assessee case is hard and calls for sympathy or merely out of benevolence to the party seeking relief. In granting the indulgence and condoning the delay it must be proven beyond the shadow of doubt that the assessee was diligent and was not guilty of negligence whatsoever. The sufficient cause within the contemplation of the limitation provision must be a cause which is beyond the control of the party invoking the aid of the provisions. The cause for the delay in filing the appeal which by due care and attention could have been avoided cannot be a sufficient cause within the meaning of limitation provision. Where no negligence, nor inaction, or want of bona-fides ..... X X X X Extracts X X X X X X X X Extracts X X X X
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