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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 ..... the assessee which cannot be condoned - The assessee could have very well avoided the delay by the exercise of due care and attention - there exists no sufficient and good reasons for such an inordinate delay – Decided against Assessees. - ITA No. 1543/H/2010, ITA No. 1544/H/2010, ITA No. 1618/H/2010, ITA No. 76/H/2011 - - - Dated:- 11-10-2013 - Shri G. C. Gupta And Shri Chandra Poojari,JJ. For the Appellant : Shri Gangaiah For the Respondent : Shri B. V. Prasad Reddy ORDER Per Chandra Poojari, A. M. These four appeals preferred by the assessee are directed against the order passed by the CIT(A) IV, Hyderabad and pertains to the assessment years 1995-96, 1996-97, 1997-98 1999-2000. Since issues involved in these four appeals are common in nature, they are clubbed and heard together and disposed of by this common order for the sake of convenience. 2. The assessee is a company Viz., Sri Vishnu Cements Limited (merged with Zuari Cement Limited) filed appeals against the orders of CIT(A) in respect of the assessment years 1995-96, 1996-97 and 1999-2000. The assessee filed an appeal against rectification of appeal order of CIT(A) for the assessment year 1997-98 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3rd December, 2010. 4.3. He submitted that the Tribunal specified the claim is to be accepted as per law. But as per the retrospective amendment of section 43B by insertion of Explanation 3C, the claim is to be allowed in the year of payment. He expressed that the appeals against the years of payment of funded interest are not before him. The assessee had taken steps to file the appeals in respect of assessment in which the payment of funded interest is made. The payment of funded interest is made in 8 assessment years. The Tribunal has already considered the issue of payment of funded interest in two assessment year years i.e. 2001-02 and 2002-03 vide its order dated 9th January, 2009 in ITA No. 1221/H/2004. Hence the issue in 6 assessment years is to be decided. The assessee has filed 4 appeals against appeal orders/rectification of appeal orders of the CIT(A) before the Tribunal and two appeals before the CIT(A) Guntur with condonation of delay. 5. The Learned Authorized Representative for the assessee relied on the following judgements: 1. CA Abraham Uppottil Vs. Income tax Officer (1960 Ind law SC 280) 2. Collector of Land Acquisition Vs. Mst. Katiji Other (167 ITR 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e found fault for not anticipation of future retrospective amendment in filing the return of income. 11. Further, he submitted that the assessment order passed for the first time in respect of assessment year 1993-94 disallowed the funded interest for want of confirmation letters from the banker in respect of funding the interest even though the bankers are supposed to fund the interest as per BIFR order. Demanding confirmation letters to follow the orders of BIFR is bad in law. He drew our attention to Section 18(7) of Sick Industrial Companies (special provisions) Act specifies: "(7) The sanction accorded by the Board under sub section (5) shall be conclusive evidence that all the requirements of this scheme relating to the reconstruction or amalgamation, or any other measure specified therein have been complied with and a copy of the sanctioned scheme certified in writing by an officer of the board to be true copy thereof, shall in all legal proceedings (whether in appeal or otherwise) be admitted as evidence". Disallowance of funded interest in the assessment year for want of confirmation letters from bankers is bad and in ignorance of law. BIFR order is taken on record. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 65,099 on loans given to sister concerns. The Tribunal in its orders dated 9.1.2009 in ITA No. 1221/H/2004 decided in favour of the assessee in assessee's own case. The Tribunal in its orders specified that the Supreme Court then went on to discuss the expression 'commercial expediency' but obviously not enumerating what could be the situations covered under the said expression. Suffice it to say that the amount so utilised should not be for the personal benefit of the directors or should not have any sentimental or personal reasons to make the advance. It also observed that it is for the assessee to decide what is expedient for it and the revenue cannot justifiably claim to put itself in the arm chair of the business or in the position of the board of directions and assume the role to decide how much is reasonable expenditure having regard to the circumstances of the case. In the light of the judgement of the supreme court and the foregoing discussion, we are of the view that no income can be added notionally unless permitted by the statute and the present addition not being an income earned by the assessee, we delete the same". Delete the addition of prior period income Rs. 78,70 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n addition of Rs. 2,04,79,277 was made to the return of income of Rs. 10,47,32,127. Aggrieved by the additions, the assessee preferred appeal before the CIT(A) who partly allowed the appeal by giving relief of Rs. 7,92,195. The CIT(A) order was passed on 20.9.2002 and the assessee claims to have received the order on 1.6.2007. The assessee also filed a petition u/s 154 before the CIT(A) seeking allowance of payment of funded interest in view of the amended provisions of section 43B after the insertion of explanation 3C. The 154 petition of the assessee was rejected. 24. The DR further submitted that later the assessee has filed a second appeal before the Tribunal on 17.1.2011 and prayed for admission of additional ground in respect payment of funded interest of Rs. 244.77 lakhs during the previous year. The appeal was filed with a delay of 3 years 6 months and 21 days. The assessee has sought condonation of delay in filing the appeal before the Tribunal. As per sub section 3 section 253, every appeal under sub section (1) or sub section (2) shall be filed within sixty days of the date of on which the order sought to be appealed against is communicated to the assessee or to the CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lief. In granting the indulgence and condoning the delay it must be proved beyond the shadow of doubt that the revenue 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. In the case of Ramlal V. Rewa Coalfields Ltd. (AIR 1962 SC 361), 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. Where no negligence, or inaction or want of bona fides can be imputed to the assessee, a liberal construction of the limitation provisions has to be made or order to advance substantial justice. Seekers of justice must come with clean hands. We do not find any reasonable cause for condoning the delay. Keeping in view the facts and circumstances of the case, the delay was due to negligence, and inaction on the part of the revenue authorities and the inordinate delay of 2569 days cannot be condoned and the appeals are dismissed as time barred. The decision of the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3602 3. 1618/H/2010 2946 4. 76/H/2001 1266 32. The assessee has advanced reasons for delay that due to retrospective amendment to Sec. 43B by insertion of Explanation 3C, the claim of the assessee is to be allowed in the year of payment in respect of funded interest. The retrospective amendment has forced the assessee to file these appeals with delay. Had there been no amendment, the assessee could have pursued the appeal before the CIT(A). This argument of the assessee is devoid of merit. Explanation 3C to section 43B was introduced by the Finance Act 2006 which becomes operative with effect from 1.4.2006. The assessee must have filed the appeal within the reasonable time from 1st April 2006. However, the assessee has filed the appeal as follows: I.T.A. No. Due date of filing Actual date of filing No. of days delay 1543/Hyd/10 08.11.2002 10.12.2010 2934 1544/Hyd/10 29.01.2001 10.12.2010 3602 1618/Hyd/10 26.11.2002 20.12.2010 2946 76/Hyd/11 31.07.2007 17.01.2011 1266 33. Thus, ev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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