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TMI Blog2016 (6) TMI 1112X X X X Extracts X X X X X X X X Extracts X X X X ..... st of inflation index in terms of sec.49(1)(iii)(a) of the Act. Same view was taken in the case of CIT vs. Manjula J. Shah (2011 (10) TMI 406 - BOMBAY HIGH COURT ). Consequently, the assessee is entitled to exemption u/s.54 of the Act. Accordingly, this appeal of the assessee is allowed. - ITA Nos. 407 & 408/Mds/2015 & 582/Mds/2016 - - - Dated:- 6-6-2016 - SHRI N.R.S.GANESAN, JUDICIAL MEMBER AND SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER Appellant by : Shri N. Vijay Kumar, CA Respondent by : Smt. Jayanthi Krishnan, CIT O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER These appeals are filed by the assessee. ITA No.407/Mds/2015 is filed against the order of the Commissioner of Income-tax(Appeals) dated 30.11.2014 for the assessment year 2009-10, wherein levy of penalty u/s.271(1)(c) of the Act is challenged. ITA No.408/Mds/2015 is filed by the assessee against the order passed by the CIT u/s.263 of the Act for the assessment year 2009-10 and ITA No.582/Mds/2016 is emanating from the order of the CIT(Appeals) dated 4/12/2015 consequent to the order passed u/s.143(3) r.w.s.263 of the Act. 2. ITA No.407/Mds/2015 : The grievance of the assessee in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of sec.50C of the Act. Later, the Commissioner of Income-tax took up the matter u/s.263 of the Act on the reason that the assessee has wrongly adopted the financial year 1981-82 for the purpose of cost of inflation index. According to the CIT, the impugned properties were inherited to the assessee, on 21.5.2002 on the demise of Smt. V. Anusuya Devi, wife of late V. Venugopal. Thus, the date of demise of the assessee s mother, Smt. Anusuya Devi on 21.5.2002 relevant to the financial year 2002-03 is to be taken as applicable for the purpose of application of cost of inflation index so as to compute the capital gains arising out of sale of capital assets. Accordingly, he set aside the original assessment order dated 30.12.2011 and directed the AO to pass appropriate order. Against this, the assessee is in appeal before us. 7. There is a delay of 299 days in filing the appeal in ITA No.408/Mds/2015, before us. The ld. AR drew our attention to the condonation petition filed by the assessee stating that on the advice of Shri Shreyans Bhandari, CA, he handed over CIT(Appeals) order to Shri T. Banusekar, CA for filing the appeal before the Tribunal. The appeal papers were prepare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant does not stand to benefit by lodging an appeal late. (2). Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. (3). Every day's delay must be explained does not mean that pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational, common sense and pragmatic manner. (4). When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. (5). There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs serious risk. (6). It must be grasped that the judiciary is respected not on account of its power to legalize injustice on technical grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment of appeal fees paid by it and also the assessee never took a plea before the AO while passing the consequential order u/s.143(3) r.w.s. 263 of the Act that the assessee has fled appeal. Even otherwise, the assessee has also not made any argument while adjudicating the appeal by the CIT(A) against the consequential order passed by the AO. The reasons advanced by the assessee by way of affidavits filed by the assessee as well as by one Smt. H. Chitra, are only paper work and an afterthought. Both are self-serving documents. Since, these affidavits are unsubstantiated and not supported any positive evidence, we cannot give any credence to these two affidavits. The law will assist those who are vigilant, not those who sleep over their rights. After considering the surrounding circumstances and applying the test of human probabilities, one has to reasonably conclude that the plea of the assessee is not genuine. The explanation offered by the assessee for the delay to be rejected as devoid of merits. We find no reason to condone the delay. Accordingly, this appeal is not admitted and dismissed. 10. ITA No. 582/Mds/2016 : In this appeal, the assessee is challenging the order pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no question of consideration of cost of asset in terms of sec.49(1)(iii)(a) of the Act. 12. It is to be noted that this Tribunal in the case of Smt. Mina Deogun v. ITO(19 SOT 183)(Kol.), after considering the Memorandum explaining the Finance Bill 1992 and CBDT Circular No.636 dated 13.8.1992 (107 CTR(St.), held that indexation is to be allowed in respect of period of holding of the asset and not in relation to the individuality of the assessee. Accordingly, it was held that for the purpose of determining the period of holding, intermediate transfers on account of succession are to be ignored. Similarly, in the case of Smt. Pushpa Sofat v. ITO (81 ITD 1), Chandigarh Bench of this Tribunal has expressed similar view. We also noticed that as per the provisions of sec.2(42A), Explanation I(b), it is stipulated that in determining the period for which any capital asset is held by the assessee, in the case of a capital asset which becomes the property of the assessee by way of succession, inheritance etc., the period for which the asset was held by the previous owner shall also be included. 13. It is also to be noted that in the case of DCIT v. Kishore Kanungo (102 ITD 43 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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