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TMI Blog2010 (5) TMI 910X X X X Extracts X X X X X X X X Extracts X X X X ..... th the provisions of section 3 and 4 of the Andhra Pradesh Housing Board Act, 1956, filed an application on 23-8-2004, in Form No.10A, seeking registration under S. 12A (a) of the Income-tax Act, 1961 as a public charitable institution in order to claim exemption of its income from tax. The date of creation f the application Board is indicated to be 5-10-1956 in the application and the application was accompanies by certified copies of annual accounts for the years 200-01, 2001-02 and 2002-03, copies of extracts from the A.P. Housing Board Act, 1956 and a list of members of the A.P. Housing Board. 3. During the course of processing of the application, the assessee was asked to furnish certain information, to adduce evidence and to submit e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the condonation of delay. We proceed to adjudicate the issue of condonation of delay. It is true that the assessee is entitled to file an appeal beyond stipulated time with a petition to condone the delay under Section 5 of the Limitation Act. But by filing such petition, it does not automatically entitle the assessee for its appeal to be admitted. The assessee has to prove that it was prevented by sufficient reasons in not filing of the appeal within the due date. In the present case, two reasons advanced by the assessee for the delay of filing of the appeal. Both the reasons are independent to each other. The first reason being the person responsible for looking after the accounts Mr. M.N. Raghunathan, who was on deputation from Rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 23rd October, 2008. 5. Now, we come to the second reason advanced by the assessee and that is, it dawned on the assessee to file an appeal after the judgment of the Bombay High Court in the case of CIT vs. APMC reported in 291 ITR 419 that there is no bar for a local authority seeking exemption under Section 11 of the Act. Otherwise, it was advised that the order of the DIT [Exemptions] was correct in view of the finding that Section 10 [20] of the Act having been amended and that it would not be open to a local authority to seek exemption under section 11 of the Act. We find that non-filing of appeal by the assessee before the end of the limitation period, created a vested right in the revenue. The department therefore had a legitim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on stipulated but also beyond two years. There was no circumstances at all before the limitation expired, which prevented the assessee from filing the present appeal. In the case of V.V.Kudva and Another vs. ESI reported in AIR 1972 Mysore 204, the Mysore Court observed that subsequent ruling of the Supreme Court or the High Court cannot be regarded as a sufficient ground for condoning the delay in filing of the appeal. If the second reason given in the affidavit filed by the assessee to be taken as cause of delay in filing the appeal, the assessee is on a weaker footing inasmuch as that it has preferred an appeal on the basis of a subsequent ruling by the High court. Even the judgment of the High court was rendered on 28th March, 2007 wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Mahalakshmi Real Estates, Hyderabad vs. ITO, Ward-6(3), and Hyderabad dated 18th December, 2009, some ambiguity was existed in filing of appeal and if the condonation is denied, it amounts to double taxation. Hence the delay was condoned by the Tribunal. In the instant case, no such ambiguity exists and the delay is mainly due to negligence on the part of the assessee and the assessee appears to have woke up and filed the present appeal when the department pursued recovery action. Considering the totality of facts and the circumstances of the case, we refuse to condone the delay. Since the appeal remains un-admitted on the grounds of limitation, we are not inclined to go into the merits of the issues. 8. In the result, the appeal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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