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TMI Blog2022 (4) TMI 1445X X X X Extracts X X X X X X X X Extracts X X X X ..... ame. It is also true that the advice of the professional would be the point of time at which the assessee would begin to explore the option of exhausting all legal remedies. Therefore respectfully following the view adopted by this Tribunal in assessee s own case for A.Y. 2009-10 [ 2022 (7) TMI 254 - ITAT BANGALORE] , we accept the reasons given for the delay and thereby condone the same for not able to file an appeal before the Ld.CIT(A). As the Ld.CIT(A) has not decided the issues on merits, we remand this appeal back to Ld.CIT(A) to pass a detailed order on the merits of the case by granting proper opportunity of being heard to assessee in accordance with law. X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 234B and section 234D of the Act which under the facts and circumstances of the case deserves to be cancelled. The calculation of interest under section 234B and section 234D is not in accordance with law as the rate, amount and method for calculating interest is not discernible from the order of assessment. 10. The Appellant craves leave to add, alter, delete or substitute any of the grounds urged above. 11. In the view of the above and other grounds that may be urged at the time of the hearing of the appeal, the Appellant prays that the appeal may be allowed in the interest of justice and equity." 2. Brief facts of the case are as under: 2.1 It was submitted that assessee is a corporation under the special purpose vehicle to implement metro rail projects. It is submitted that the assessee took requisite permission and approvals to invest the surplus funds. The funds were invested in fixed deposits of bank that earned interest until, they were required for implementation of the project. The assessee is said to be a wholly owned company of Govt. of Karnataka, wherein the Govt. of India contributed in the form of equity and subordinate debt to the extent of 25% of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (50:50), due to change in appointees in the Board, the decision was kept pending. That thereafter when seeking advice from its counsel for some other matter, when it was enquired as to what was the status of the matters for the A.Y. 2010-11, it was stated that no appeals have been filed as no decision could be taken on the same. After the counsel advised them to forthwith file the appeals, the present appeal was filed, along with the appeal for the A.Y. 2009-10 before. the ITAT, Bengaluru. The Appellant has placed reliance on the decision of the Karnataka High Court in Karnataka Forest Development Corporation Limited v. AC/Tin ITA No. 83/2009 and several other decisions in support of its plea. 2.1 I have carefully considered the submission of the Appellant and I am of the opinion that the reasons given by the Appellant do not constitute sufficient cause necessary to condone such a great delay of 1037 days. The appellant ought to have contested the order of the AO, as it has done for the preceding assessment years. There is no reason as to why the appellant who has agitated by filing the appeals against the similar treatment given by the AO in the previous years, has chosen to sl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee followed the professional advice. The order of the CIT(A) for the preceding A.Ys.2007-08 & 2008-09 were challenged before this Hon'ble Tribunal. The Hon'ble 'A' Bench of this Tribunal vide its order in ITA No. 1070 & 1071/Bang/2011 dated 31/10/2014 held that income earned on investments made out of surplus funds are not taxable in the case of the assessee. When the then Counsel advised the assessee that in the light of the Tribunal's order in the assessee's favour, it must file the statutory appeals for the orders which were not challenged, the assessee immediately took every step to ensure that this appeal is filed at the earliest. It is also stated that no appeal was filed earlier on account of professional advise. Accordingly the assessee has preferred appeal against the order of the CIT(A) before this Tribunal. 12. It has also been submitted that it is only because of the wrong professional advice that there arose a delay in filing of this appeal. The assessee is a government company and as a matter of established practice, went by the advice of the professional. It was submitted that if the delay is not condoned, great injury would be inflicted, given that the subject ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take a lenient view and dispose-off the matter based on the merits of the matter and not on the basis of technicalities. (i) Collector, Land Acquisition vs. MST. Katiji and Others (1987) 167 ITR 471 (SC); (ii) Concord of India Insurance Co. Ltd., vs. Smt. Nirmala Devi and Others 118 ITR 507 (SC); (iii) Radha Krishna Rai vs. Allahabad Bank & Others [2009] 9 SCC 733; (iv) CIT vs. West Bengal Infrastructure Development Finance Corporation Limited [2011] 334 ITR 269 (SC); (v) Improvement Trust, Ludhiana v. Ujagar Singh & Ors.in Civil Appeal No. 2395 of 2008 (SC); (vi) Ram Nath Sao v. Gobardhan Sao reported in AIR 2002 SC 1201; The assessee further relied on the decision of this Tribunal in the case of M/s. Raghavendra Constructions v. ITO in ITA No. 425/Bang/2012 wherein this Tribunal has, having regard to the facts of the matter, condoned the delay of 678 days. The Tribunal relied on the decision of the this Tribunal in the case of Shakuntala Hegde, L/R of R. K. Hegde v. ACIT in ITA No. 2785/Bang/2004 wherein the reason that appeal was filed after a delay of 1331 days in filing of appeal pursuant to advice given by new counsel was accepted as sufficient cause and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pex Court has emphasized that substantial justice should prevail over technical considerations. The Court has also explained that a litigant does not stand to benefit by lodging the appeal late. The Court has also explained that every day's delay must be explained does not mean that a pedantic approach should be taken. The doctrine must be applied in a rational common sense and pragmatic manner. In the case of Shakuntala Hegde, L/R of R.K. Hegde v. ACIT, ITA No.2785/Bang/2004 for the A.Y. 1993-94, the Hon'ble Tribunal condoned the delay of about 1331 days in filing the appeal wherein the plea of delay in filing appeal due to advice given by a new counsel was accepted as sufficient. The Hon'ble Karnataka High Court in the case of CIT v. ISRO Satellite Centre, ITA No. 532/2008 dated 28.10.2011 has condoned the delay of five years in filing appeal before them which was explained due to delay in getting legal advice from its legal advisors and getting approval from Department of Science and PMO. In the aforesaid decision, the Hon'ble Court found that the very liability of the assessee was nonexistent and therefore condoned the delay in filing appeal. 18. Keeping in mind the aforesai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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