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TMI Blog2017 (12) TMI 425X X X X Extracts X X X X X X X X Extracts X X X X ..... not stand to benefit by resorting to delay. As stated earlier, in the application dated 20th March, 2014 seeking invocation of the power under Section 264, the delay has been adequately explained. Perusal of the impugned order shows that the Commissioner has misdirected himself by going into the question whether the petitioners could have made the claim. The question of going into maintainability of the claim made by the petitioners could have been gone into on merits, only if the delay was condoned. Proviso to Sub-Section (3) of Section 264 confers a statutory power on the Commissioner to condone the delay. Therefore it was not necessary for the Commissioner to have taken recourse to Section 5 of the Limitation Act, 1963. We dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... identical, for the sake of convenience, we are referring to the impugned order made in Writ Petition No. 6287 of 2015. 5. The learned Counsel appearing for the petitioners has taken us through the impugned order. His submission is that the Commissioner has completely misdirected himself, as the Commissioner has not noted that the power to condone delay is vested in him under the provision of Sub-Section 3 of Section 264 of the said Act. He submitted that the reasons for delay were set out in the application for Revision filed by the petitioners. He submitted that the Commissioner could not have gone into the question, whether on merits, any relief could be granted to the petitioners if the Revision Application was to be entertained. 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amended with effect from 18th April, 2005. After referring to the said provisions, it is stated thus : However, the new sub-section( d) which was inserted w.e.f. 01.04.2005 gave an impression to the applicant it may also apply for the ongoing projects during F.Y. 0405 (A.Y. 0506) even though the projects have been approved before 01.04.2005. In fact, Department in many cases took this stand. Hence, the applicant did not claim any deduction u/s 80IB (1) for the A.Y. 2007-08. However, later on, various High Courts and ITAT had taken a view that the amendment is not applicable to projects approved prior to 1.4.2005. Based on those decisions, the applicant claimed deduction u/s 80IB (10) for the first time in A.Y. 2009-10 by filing r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merits are concerned, both the learned Counsel for the petitioners and respondent tried to contend that there is an adjudication made on merits. For that purpose we must closely scrutinise the impugned judgment. In paragraph 17 of the judgment, it is observed that : The issue before us is as to whether the assessee could claim deduction u/s. 80IB(10) though it had not made any claim in the return of income for the relevant assessment year and the impact of sec.80A(5) on such a claim. 15. On a plain reading of the judgment of the Commissioner, it appears that the said issue though noted by the Commissioner has not been decided. As stated earlier, on a plain reading of the application made by the petitioners, there was sufficient e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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