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TMI Blog2017 (7) TMI 360X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings are pending before the Settlement Commission, and therefore, the ld.CIT(A) has no jurisdiction to entertain the issue agitated by the assessee on merit. This findings of the ld.CIT(A) supports bona fide of the assessee in believing that their applications under section 245E would be entertained by the Settlement Commission and there is no need to challenge the order of the CIT(A). It is also important to note that there is no adjudication on merit on the issues involved in these appeals by the ld.CIT(A). The appeals were dismissed for the reason that they are not maintainable. Considering this aspect and in the interest of justice, we deem it appropriate to condone the delay in filing the appeal. We proceed to decide the appeal on merit. - ITA No. 1635 to 1638, 1655/Ahd/2016 - - - Dated:- 1-6-2017 - Shri Rajpal Yadav, Judicial Member And Shri Amarjit Singh, Accountant Member Assessee by : Shri Harsh Bhutia Revenue by : Shri Shiva Sewak, Sr.DR ORDER Per Rajpal Yadav, Judicial Member Present appeals are directed at the instance of the assessees against separate orders of the ld.CIT(A) passed on the appeals of the appellants in respect of respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that during the course of survey on the premises of Shri Pankaj Danawala evidences exhibiting creation of bogus capital was found. A perusal of balance sheet of Shri Arvindbhai M. Patel, HUF it revealed that this assessee has shown loan/advances of investment in the name of M.D. International amounting to ₹ 24,15,654/-. When the AO called for information about source and nature of this advance, then nothing was submitted, and accordingly, an addition was made. Since we are not called upon to adjudicate these issues on merit, therefore, we do not deem it necessary to take note of the facts in other cases. Reference to the above facts is in order to appreciate whether there is a plausible explanation at the end of the assessees to explain the delay in filing of the appeal before the Tribunal order or not. These assessment orders were challenged before the ld.CIT(A). The ld.First Appellate Authority has dismissed the appeals on the ground that these appeals are not maintainable because the assessees have approached Settlement Commission and the proceedings were stated to be pending at different levels. Thus, for want of jurisdiction, the ld.CIT(A) has dismissed all the appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s. 148 of the Act was issued for AY 2003-04. 7. 31-03-2008: All the admitted petitions of the Group were abated on 31-03-2008 due to the amendment brought in by Finance Act 2007 in section 245D(4) of the Act wherein if the settlement proceedings were not concluded by 31-03-2008, such proceedings would be abated. Accordingly, the petition of appellant for AY 2000-01 and 2004-05 were also abated. 28-04-2008: All the 20 member of our Group, thereafter filed writ petitions in the Hon'ble Bombay High Court challenging the abatement orders passed u/s. 245HA of the Act by Settlement Commission as well as challenging the constitutional validity of sections 245D(2A), 245(20), 245D(4A) and 245HA of the IT. Act, 1961, as amended/inserted by Finance Act, 2007, w.e.f. 01-06-2007 which was admitted on 30-04- 2008. The appellant filed writ petition for AY 2000-01 and 2004-05 before Hon'ble Bombay High Court. 9. 31-12-2008: The assessment proceedings were concluded by the assessing officer u/s. 147 of the Act for AY 2003-04. 10. 07-08-2009: Based on judgment of Hon'ble Bombay High Court in case of Star Television News Limited vs. UOI Others (2009) 317 ITR 66 (Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mandated by the statute was not filed before this Hon'ble Tribunal in view of the circumstances explained hereinabove. Considering the complexity of the subject-matter, it is humbly prayed that the delay caused in lodging the captioned appeal may kindly be condoned. 15. In this connection, the appellant places reliance upon the following decisions with the relevant findings therefrom: Collector. Land Acquisition v. Mst. Katiji Ors. [167 ITR 471 (SOI: The Legislature has conferred power to condone delay by enacting section 5 of the Limitation Act, 1963, in order to enable the courts to substantial justice to parties by disposing of matters on merits. The expression 'sufficient cause' in section 5 is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice-that being the life-purpose of the existence of the institution of courts. A justifiably liberal approach has to be adopted on principle. 'Every day's delay must be explained' does not imply a pedantic approach. The doctrine must be applied in a rational, common sense and pragmatic manner. When substantial justice and tech ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee, but only in the just enforcement of the provisions of the Act. The discretion of the authority, therefore, on the facts of this case, was required to be exercised by bearing the aforementioned considerations in mind. (v) Saurashtra Cement and Chemical Industries Ltd, v. CIT [115 ITR 27 In AY 1965-66, the assessee had paid a sum of x 3,00,600/- to Gujarat State Electricity Board for laying electric power line to its factory, which was capitalized and depreciation thereon was claimed @ 10%. This claim was allowed by the ITO in the order passed for that year. Similar claim for the subsequent year, however, was disallowed by the ITO on the ground that the assessee was not the owner of the power line and such finding was sustained in first appeal. During the course of the hearing before the ITAT, the assessee realized the difficulty in getting depreciation and, accordingly, requested the Tribunal to allow it to withdraw the appeal which was granted. Subsequent to receipt of the order of the Tribunal on 07.12.1972, the assessee filed a revision application on 26.12.1972 praying that it should be allowed to treat the amount of x 3,00,600/- as revenue expenditure fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave not taken any steps before the Hon ble Settlement Commission after the order of the Hon ble High Court till the application under section 245E of the Income Tax Act was considered against abatement order was filed on 14.3.2015. Whereas, the ld.CIT(A) has decided the appeal for want of jurisdiction on 23.12.2013. There is no explanation for this delay. Hon ble Settlement Commission has also rejected their application under section 245E on 3.6.2016 Thereafter, they have filed application on 17.6.2016. According to the ld.DR, there is no plausible explanation at the end of the assessee. 8. We have considered rival contentions and gone through the record carefully. Sub-section 5 of Section 253 contemplates that the Tribunal may admit an appeal or permit filing of memorandum of cross- objections after expiry of relevant period, if it is satisfied that there was a sufficient cause for not presenting it within that period. This expression sufficient cause employed in the section has also been used identically in sub-section 3 of section 249 of Income Tax Act, which provides powers to the ld.Commissioner to condone the delay in filing the appeal before the Commissioner. Similarly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld 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 promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words sufficient cause under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi lain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been dismissed. Appellants have challenged the order of Settlement Commission dated 31.3.2008 vide which their petitions have been abated by operation of provisions of Income tax Act before the Hon ble High Court. Ultimately, Hon ble Court allowed their petitions and remitted that matter back to the file of Settlement Commission for adjudication. Question before us is how the assessees have harboured a belief that they should not file appeals before the Tribunal. According to them, they were expecting that their cases will be taken up by the Settlement Commission in all assessment years. According to the assessee, they have harboured this belief on the advice of their counsel Shri Hemant Jadia, whose opinion is available on the paper book. 11. We have considered this opinion. The ld.counsel for the assessee also took us through letter of Pr. Commissioner of Income Tax, Surat dated 26.5.2016 written to the CIT(DR), Settlement Commission. This letter was rebuttal to reply to Rule 9 report made in the M.D. Group of cases. While giving reply to the cases of Shreya Traders, one of the concerns of group, even the Department has supported the application of the assessee moved under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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