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TMI Blog2019 (6) TMI 425X X X X Extracts X X X X X X X X Extracts X X X X ..... in filing the appeals before the CIT(A). More so, the assessment orders for these assessment years were passed ex parte by the Assessing Officer u/s. 144 which itself shows that there is no proper presentation from the Counsel of the assessee before the Assessing Officer. Hence, in our opinion, there are good and sufficient reasons for filing the appeals belatedly before the CIT(A). Disallowance u/s 43B - assessee not remitted VAT payable before the due date of filing of the return of income - CIT(A) observed that the provisions of section 43B of the Act are not applicable to the assessee since the assessee had not produced any evidence to show that the provisions of section 43B have been complied by the assessee - HELD THAT:- The assessee has not produced any evidence to show that the provisions of section 43B have been complied with by the assessee. In the absence of the same, the CIT(A) sustained the addition. Before us, the Ld. AR pleaded that the assessee may be given an opportunity to place necessary evidence in support of the claim of the assessee. Considering this request of the assessee, we are inclined to remit this issue to the file of the CIT(A) with a direction to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) of the Act and the same reads as under: The Commissioner(Appeals) may admit an appeal after the expiration of the said period if he is satisfied that the appellant had sufficient cause for not presenting it within that period . 4 . 3 . Before going into issue of condonation of delay, it would be relevant to place on record principle laid down by Hon'ble Courts with regard to condonation of delay . In the case of Ram Mohan Kabra, 257 ITR 773, Hon'ble Punjab and Haryana High Court, while dealing with the issue of condonation of delay, has observed as under: 3 . The provisions of relating to prescription of limitation in every statute must not be construed so liberally that it would have the effect of taking away the benefit accruing to the other party in a mechanical manner . Where the Legislature spells out a period of limitation and provides for power to condone the delay as well, there such delay can be condoned only for sufficient and good reasons supported by cogent and proper evidence . Now ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal being filed must be traced to a cause arising within the period of limitation . 4 . 5 . In the light of the decisions of Hon'ble High Court and Supreme Court, as above, it is evident that the Appellant seeking condonation of delay in filing of appeal must bring all the evidence explaining the cause for such delay . Further, the cause relied must be an event period of limitation . 4 . 6 . Now, applying the above principles to the facts of the case, the merit of the reasons stated by the Appellant are examined as under: a) The Appellant had stated that the authorized representative was laid up with severe back pain for the last one year and therefore the Appellant is prevented from filing the appeal within the time allowed . In support of the said claim, the Appellant had submitted copies of medical certificates and the same are as under: MEDICAL CERTIFICATE This is to certify that Mr . K . Suresh, 55yr Chartered Accountant residing at Nandavan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the post of managing director also prevented the company from filing the appeal in time . d) The Appellant had not specified the dates when managing directors were changed and what were the reasons for which the previous persons holding the post of managing director were prevented from filing the appeal . In absence of such evidence, the reason stated by the Appellant cannot be accepted . 4 . 7 . Therefore, in view of the above discussion, it is held that the Appellant did not have sufficient cause for not filing of appeal within the limitation period . Hence, the delay in filing of appeal is not condoned and thereby, appeal is not admitted . 4 . 8 As the appeal is not admitted, the grounds raised on merits are not discussed as the same are not relevant . In summary, the appeal is dismissed . 4 . We have heard the rival submissions and perused the record . There was a delay of 301 days and 303 days for the assessment year 2010-11 and 2011-12 in filing the appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 5 of the Limitation Act the courts should adopt a pragmatic approach . A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days . Whereas in the former case, the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration may arise and such a case deserves a liberal approach . No hard and fast rule can be laid down in this regard . The court has to exercise the discretion on the facts of each case keeping in mind that in construing the expression sufficient cause , the principle of advancing substantial justice is of prime importance . In the above case, the Apex Court was considering a case where the application for condonation was for a delay of 7 days in filing the appeal against the order of the trial court . In the same case, the Jurisdictional High Court also cited recent decision of Allahabad High Court in the case of Ganga Sahai Ram Swarup vs . ITAT (271 ITR 512) . In this case i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 . The appellant also has no income to be computed in accordance with section 29 of the Act . There is no computation of profits and gains of business applicable to the appellant Company and as such, the provisions of section 30 to 43D would not apply . 5 . In the absence of any business carried on by the appellant, section 43B will not apply . 6 . Any payment of VAT liability is only money transaction by the assessee which is to be discharged as a monetary/legal liability . Having regard to the above facts, the addition of Rs . 4, 89, 48, 224/- is also illegal . 7 . The ground Nos . ( 2), (3) and (7) are raised without prejudice . 8 . The assessing officer and the CIT (A) failed to appreciate that the appellant is a Government Company registered under the Companies Act, 1956 as per Memorandum of Association dated 24/11/2007 before the Registrar of Companies, Kerala at Ernakulam on 28/12/2007 . The objects of the Company ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 . Against this, the assessee is in appeal before us . The assessee relied on the grounds of appeal . 9 . The Ld . DR relied on the order of the lower authorities . 10 . We have heard the rival contentions and perused the record . Before the lower authorities, the assessee has not produced any evidence to show that the provisions of section 43B of the Act have been complied with by the assessee . In the absence of the same, the CIT(A) sustained the addition . Before us, the Ld . AR pleaded that the assessee may be given an opportunity to place necessary evidence in support of the claim of the assessee . Considering this request of the assessee, we are inclined to remit this issue to the file of the CIT(A) with a direction to give opportunity to the assessee to produce evidence to show that the provisions of section 43B have been complied with by the assessee . Accordingly, this issue is remitted to the file of the CIT(A) for fresh consideration . This ground of appeal of the assessee is partly allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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