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TMI Blog2018 (10) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... For The Assessee : Shri S.N. Soparkar, AR For The Revenue : Shri Lalit P. Jain, Sr.DR ORDER PER RAJPAL YADAV, JUDICIAL MEMBER: In the present appeals, the assessees are impugning separate orders of the ld.CIT(A)-13, Ahmedabad dated 31.3.2015 in their respective appeals passed for the assessment years 2008-09 and 2009-10. 2. Registry has pointed out that all these appeals are time barred by 203 days. In order to explain the delay, both assesses have filed their affidavits which are verbatim same. Therefore, for the facility of reference we take note of affidavit filed by Shri Tarun S. Varma, which reads as under: I, Tarun S Varma L/H Santramdas K Varma, adult at present operating from 307-308, Sarthik Square, Opp. New U S Pizza, S.G. Highway, Ahmedabad 380 054 state on solemn affirmation as under: That the order u/s 143 (3) r w s 263 for A.Y. 2008-09 passed by CIT (A) dismissing the appeal of the appellant was received on 10/04/2015. Mr. Sanjiv Shah, Accountant was entrusted with the task to file appeal before Hon'ble ITAT that required to be filed within 60 days of receipt of appellate order. However, the accountant kept the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the appeals. 5. We have duly considered rival contentions and gone through the record carefully. Sub-section 5 of Section 253 of the Act 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, it has been used in section 5 of Indian Limitation Act, 1963. Whenever interpretation and construction of this expression has fallen for consideration before Hon ble High Court as well as before the Hon ble Supreme Court, then, Hon ble Court were unanimous in their conclusion that this expression is to be used liberally. We may make reference to the following observations of the Hon ble Supreme court from the decision in the case of Collector Land Acquisition Vs. Mst. Katiji Others, 1987 AIR 1353: 1. Ordinarily a litigant does not stand to benefit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld.CIT(A) has erred in dismissing the appeals of the assessee without providing sufficient opportunity of hearing. First of all we note that facts on all vital points are common. Therefore, for the facility of reference, we take up the facts from ITA No.3642/Ahd/2015 in the case of Tarun S. Varma. 9. As observed earlier, both the assessee are directors in Swagat Infrastructure P.Ltd. and partners in Swagat Developers and Mrunal Builders and TS Corporation. It is pertinent to note that assessees assessments under section 143(3) of the Act were framed in the case of Tarun S. Varma on 22.12.2010 in the Asstt.Years 2008-09 and 2009-10 determining taxable income of ₹ 30,63,390/- and ₹ 3750,280/- i.e. returned income in both years. In the case of Shri Gaurav S. Varma assessment under section 143(3) was finalized on 22.12.2010 determining taxable income at ₹ 24,99,440/- i.e. returned income. The ld.Commissioner took cognizance under section 263 of the Income Tax Act and set aside these assessment orders. In pursuance of 263-order, the AO has passed fresh assessment order on 21.1.2014 in the case of both assessees in all these years. In the fresh assessment order, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... term capital gains ii) To examine the genuineness of cash advance shown from two Co-op housing societies as advance against land, on all aspects as per provisions of section 68 and the applicability of section 269SS iii) To examine the genuineness of the expenses incurred on improvement / development of land by conducting through inquiry and its source thereof. iv) To examine the genuineness of the Cooperative societies and its relation with the assessee with respect to the transaction of land and receipt of cash. 11. Thus, the basic issue involved in these appeals relates to whether profit on sale of land is to be assessed from business income or short term capital gain. This is the major issue. While impugning the orders of the ld.CIT(A), the ld.counsel for the assessee submitted that the ld.CIT(A) has not recorded any independent finding, rather concurred with the AO and dismissed the appeals of the assessees in a way on account of non-prosecution. On the other hand, the ld.DR submitted that the ld.CIT(A) has taken cognizance of the assessment orders, and thereafter he concurred with the AO because the assessees have not filed any fresh evidence or any f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter of a judicial or quasi judicial body. In the absence of the complainant, therefore, the court will be will without its jurisdiction to dismiss the complaint for non prosecution. So also, it would have the inherent power and jurisdiction to restore the complaint on good cause being shown for the non appearance of the complainant. 3. The Hon'ble Bombay High Court has also laid down the proposition that where the appellant in spite of notice is persistently absent and the Tribunal on facts of the case is of the view that the appellant is not interested in prosecuting the appeal, it can in exercise its inherent power to dismiss the appeal for non 12 prosecution. In the case of CIT Vs. B. N. Bhattacharya reported at 118 ITR 461, it was held that appeal does not mean merely filing of appeal but effectively pursuing it. 4. The Hon'ble ITAT Delhi (ITR No.2006/Del/2011 dt.19.12.2001) in the case of Whirlpool f of India Ltd. v. DOT had dismissed appeal for non attendance at hearings, inferring that f assessee was not interested in prosecuting of appeal. 5. In the case of Chadho Finlease Ltd. V. ACIT (ITA No.3013/Del/2011 date of order 20.12.2011) the Hob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A) though is running into 21 pages, but from page no.3 upto 18, he has just reproduced the assessment order. Thereafter, he has recorded finding extracted (supra). A perusal of this finding would indicate that the ld.CIT(A) has not justified his action as to why he should concur with the AO. It is pertinent to observe that subsection (6) of section 250 contemplates procedures require to be followed by the ld.CIT(A) while deciding the appeal. This section provide that the ld.CIT(A) would state points in dispute, and thereafter record reasons in support of his conclusion. The assessee has filed paper book running into 63 pages in the case of Gaurav S. Varma and 68 pages in the case of Tarun S. Varma. He placed on record copy of statement recorded on 9.10.2013 and other details. All these documents were filed by the AO. Thus, perusal of the order of the ld.CIT(A) would indicate that neither the ld.CIT(A) carved out any points of disputes nor recorded reasons for the decision. After looking into the record, he simply concurred with the AO. The ld.CIT(A) ought to have applied his independent mind on the facts collected by the AO and the explanation given by the assessee before the AO. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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