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TMI Blog2016 (3) TMI 1124X X X X Extracts X X X X X X X X Extracts X X X X ..... ear that the delay in the present appeal has been condoned to the peculiar facts of the case, therefore, may not be quoted as precedent. - ITA NO. 3786/Mum/2012 - - - Dated:- 18-3-2016 - SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI JOGINDER SINGH, JUDICIAL MEMBER Assessee by Shri M.G. Moryani Revenue by Shri Yogesh Kamat O R D E R Per Joginder Singh (Judicial Member) The assessee is aggrieved by the impugned order dated 28/02/2006 of the ld. First Appellate Authority, Mumbai, on the grounds stated in the grounds of appeal. The assessee has also filed an application for condonation of delay of 2191 days in filing the appeal before this Tribunal, supported by an affidavit duly sworn by the Managing Director of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es were served upon the assessee. The assessee claimed deduction of ₹ 2,79,93,183/- u/s 80HHC of the Act. While calculating the deduction u/s 80HHC, the assessee included 90% of the DEPB as part of export incentive by claiming that the DEPB amount is covered as export incentive under clause (iiia) and (iiic) of section 28 of the Act. However, the ld. Assessing Officer was of the view that the DEPB is assessable as income u/s 28(iv) of the Act, consequently, he did not allow the claimed deduction u/s 80HHC of the Act in respect of DEPB. It is noted that before the ld. Commissioner of Income Tax (Appeals) as well as during assessment proceedings, the stand of the assessee was that identical issue of sale of DEPB, for assessment year 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent cause appearing in sub-section (5) of section 253 of the Act should receive a liberal construction so as to advance substantial justice. It must be remembered that in every case of delay, there can be some lapses on the part of the litigant concern. That alone is not enough to turn down the plea and to shut the doors against him, unless and until, it makes a mala-fide or a dilatory statutory, the court must show utmost consideration to such litigant. Further the length of delay is immaterial, it is the acceptability of the explanation and that is the only criteria for condoning the delay. 2.4. In such a situation, no doubt filing of an appeal is a right granted under the statute to the assessee and is not an automatic privilege, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion sufficient cause is adequately elastic to enable the courts to apply law in a meaningful manner, which sub-serves the end of justice- that being the life purpose of the existence of the institution of the courts. When substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred. This means that there should be no malafide or dilatory tactics. Sufficient cause should receive liberal construction to advance substantial justice. The Hon ble Apex Court in Collector, Land Acquisition vs Mst. Katiji Ors. (167 ITR 471) observed as under:- 3. The legislature has conferred the power to condone delay by enacting section 51 of the Limitation Act of 1963 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r his loss. 2.8. In another case, the Hon ble Madhya Pradesh High court in Mahaveer Prasad Jain vs CIT (1988) 172 ITR 331 (MP) held that applicant cannot be made to suffer for the negligence of his counsel by following the decision from Hon ble Apex Court in Rafiq vs Munsilal (AIR 1981 (SC) 1400). Identically, in Y.P. Trivedi vs JCIT (2014) 059 (II) ITC 0450 , it was held that the assessee should not suffer and a bona-fide mistake has to be condoned. 2.9. Likewise, Hon ble Bombay High Court in Artis Tree Pvt. Ld. vs CBDT Ors. (2015) 273 CTR 0014(Bom.); (2014) 369 ITR 691(Bom.), it was held that if the acceptable explanation is offered and a case of genuine hardship, delay has to be condoned. 2.10. Considering the afo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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