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TMI Blog2013 (12) TMI 1209X X X X Extracts X X X X X X X X Extracts X X X X ..... y partnership deeds? 3. Whether even otherwise the assessee's appeal could have been dismissed when the original and supplementary partnership deeds exist on the assessment record? 4. Whether the assessee could have been assessed as an Association of Persons and salary and interest paid to the partners disallowed in the face of the original and supplementary partnership deeds? " 4. The assessee is a partnership firm. A return of income for the assessment year 1994-95 was filed on 31.08.1995, declaring income of Rs.510/-, in the status of a firm. The return was processed under Section 143 (1) (a) on 30.11.1995. A notice under Section 143 (2), was issued on 18.01.1996 and served on the assessee on 24.01.1996, fixing 30.01.1996. On 30.01.1996, the case was adjourned to 6.2.1996, on the request of the assessee. On 6.2.1996, the assessee filed written submissions. The books of account were not produced on that date. From the Partnership deed dated on 1.4.1992 available on record, it was seen that clause-6 of the deed provide for allowance of salary to the working partners at the rate of Rs.9.000/- each partner per annum. However for the year under consideration, the total salary paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the deponent due to pressure of work and oversight could not prepare the appeal in time and thus an inadvertent delay of almost 46 days occurred in filing the appeal for the present assessment year." 7. The Tribunal, after referring to the facts of the case, dismissed the appeal with reasons given in paragraph No.4 as follows:-. "4. After considering the rival submissions and in view of the affidavit filed along with the return enclosing therewith the medical certificate and further particulars, I do not find it to be a fit case for condonation of delay and also considering the fact that the assessee did not obtain the relevant details from the ACIT, Range 2 (1) Kanpur, for which a letter has only been written as late as on 14.11.2003. Under the circumstances the appeal of the assessee is treated as dismissed." 8. Sri S.D. Singh, learned counsel appearing for the assessee-appellant submits that the Tribunal has not considered the ground that the supplementary partnership deed was available, and in any case the Tribunal failed to accept the explanation given by the counsel for the assessee for condonation of delay in filing the appeal. He submits that the Tribunal, on the firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by Mr. A.K.Sanghi. Appeal allowed to the extent indicated with costs in the manner indicated." 10. Sri S.D. Singh has also relied on another judgment in Ram Kumar Gupta and others Vs. Har Prasad and another [(2010) 1 SCC 391] in which relying on judgment in Rafiq Vs. Munhsi Lal (supra) the Supreme Court held in paras 12 to 16 as follows:- "12. As noted hereinabove, for restoration of the writ petition dismissed for non-prosecution, an application for restoration was filed by the appellants which was rejected only on the ground of delay and latches. But on a perusal and on proper examination of the record of this case, we find that no delay was caused by the appellants in filing the application for restoration of the writ petition. In any view of the matter, the appellants cannot be punished for the lapses even if there was any, as the appellants had engaged a learned counsel to appear and contest the writ petition. 13. That apart, considering the fact that the appellants had been prosecuting the litigation since 1982 diligently and there was no lapse on their part till the writ petition was dismissed for non prosecution and also considering the fact that a lawyer was engaged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss." 12. Sri Govind Krishna, appearing for respondent-department, submits that the explanation for condoning the delay, offered by the counsel, was entirely vague and uncertain to be accepted by the Tribunal. The Tribunal in exercise of its discretion is not supposed to accept such casual explanation in support of the ground for condoning the delay. He has relied on the decisions in Commissioner of Income-Tax Vs.P. Mohanakala [(2007) 291 ITR 278 (SC)], Lachman Singh (dead) through Lrs and others Hazara singh (dead) through Lrs and others [(2009) 106 RD 79] and Office of the Chief Post Master General and others vs. Living Media India Ltd and another [(2012) 348 ITR 7 (SC)], to support his contention. 13. In all these cases, the Supreme Court considered the exercise of jurisdiction of courts in condoning the delay in filing appeals and the necessity of substantial questions of law arise from the order of appellate authority, to entertain the appeal. In CIT Vs. P. Mohanakala (Supra), the Supreme Court has held th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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