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TMI Blog2022 (3) TMI 1427X X X X Extracts X X X X X X X X Extracts X X X X ..... vit stating that she was advised to avail the benefit of scheme in the event the revenue prefers an appeal before this Court against the decision of the Tribunal which was in favour of the assessee. We cannot examine the case on abstract propositions or what would have been the intention of the assessee. On careful reading of all the provisions of Act 3 of 2020, it is clear that the benefit provided is optional, an assessee exercising such option is not automatically entitled to the benefit under the scheme and the authority is empowered to consider and refuse to entertain the application for reasons to be assigned. Section 9 has also enumerated the cases where the Act will not apply. Thus, on a complete reading of Act 3 of 2020 it is clear that the scheme propounded therein not only is optional but can never construed to be a vested or a valuable right. Therefore, on the assessee contemplating of going under the scheme cannot be said to have suffered prejudice only because the revenue preferred the appeal belatedly as we find the scheme does not confer any vested right on the assessee. Assessee placed reliance on the order passed by this Court in the case of Nitu Agarwal [ 2021 (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the orders passed by the Income Tax Appellate Tribunal, Kolkata (the Tribunal). 2. For the purpose of disposal of the applications filed under Section 5 of the Limitation Act, it may not be necessary to go into the factual aspects nor as to what would be the relevant assessment year which was subject matter before the Tribunal. Equally the length of delay may also not be very relevant factor as the submissions have been made on either side on the issue as to whether the Court should exercise discretion in condoning the delay in filing the appeals before this Court. There are cases where delay is only 90 days, there are also cases where delay is more than 300 days. As has been settled in various decisions, length of delay is always not a very relevant factor as even a meagre delay if shown to be on account of certain mala fide reasons, the Court will refuse to exercise discretion and will dismiss the applications. In other cases, where delay is substantial, the Court finds that sufficient cause has been shown and for reasons to be assigned will exercise discretion and condone the delay. 3. The case of the revenue is that the matters which are subject matter of the appeal are popul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... computing limitation for filing petitions or appeals etc. Therefore, it is submitted that a broader view may be taken in the matter, considering the sensitivity of the issue and wide ramification which has been brought out on account of the investigation, which is still in progress. 5. The learned standing counsel places reliance on the decision of the Hon'ble Supreme Court in McDowell & Company Limited vs. Commercial Tax Officer reported in AIR 1986 SC 649 for the proposition that tax planning may be legitimate provided it is within the framework of law. Colourable devices cannot be part of tax planning and it is wrong to encourage or entertain the belief that it is honourable to avoid the payment of tax by resorting to dubious methods. Further it is the obligation of every citizen to pay the taxes honestly without resorting to subterfuges. 6. The learned standing counsel has also placed reliance on the decision of the High Court of Madras in the case of The Commissioner of Income Tax, Chennai vs. Manish D. Jain (Huf) in TCA No. 223 of 2020 dated 16.12.2020 and CIT vs. Pinky Devi in TCA No. 181 of 2020 dated 23.03.2021. Reference was also made to the order passed by this Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... everybody including the Government. Learned counsel also referred to the decision of this Court in the case of PCIT vs. Nitu Agarwal in ITA No. 4 of 2021 dated 10.12.2021 and submitted that in the said case there was delay of 331 days in filing the appeal by the revenue which was dismissed by taking note of the fact that the assessee could not avail the benefit of the Vivad Se Vishwas scheme. Further learned counsel submitted that though the revenue has produced a report of the investigation being of the Department, there is nothing to indicate that the assessees have been shown to be scamsters or involved in the process of defrauding revenue and therefore, the said investigation report is of little significance so far as the assessees are concerned who are generally medicore persons who have made small investments and probably might have earned little or negligible profits and therefore, the Court may not exercise discretion in condoning the delay in filing these appeals. 8. We have elaborately heard learned counsels for the parties and perused the materials placed on record. The celebrated decision of the Hon'ble Supreme Court in the case of Collector Land Acquisition, Anantnag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verall facts and circumstances leading to such delay. In many of the matters before us, the tax effect may be less than the threshold limit fixed by the CBDT for pursuing appeals by the Department. The Department initially, applying the Circular, did not prefer appeals. It is much later CBDT clarified and issued further instruction that insofar as the penny stock matters irrespective of tax effect appeals have to be preferred. The object underlying such decision cannot be ignored as it is represented before us that investigation reveals large scale financial scam throughout the country. If such is the fact situation, the Court cannot be put under shackles on technical grounds. The case of the assessee as submitted by learned counsel for the respondent is that had the appeal been preferred within the period of limitation, the assessee would have exercised their right under the Vivad Se Vishwas scheme and would have purchased peace by remitting the tax as quantified. This having not been done, the assessee would submit that a valuable right or in other words vested right has been impinged. 11. The settlement scheme was introduced pursuant to an Act of Parliament called the Direct Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance on the order passed by this Court in the case of Nitu Agarwal (supra). In the said decision, the revenue had not placed any submission as to the effect of the provisions of Act 3 of 2020 nor there was any dispute raised on the submission of the assessee that they wanted to avail the benefit of the scheme. In any event it is an order passed in a miscellaneous application refusing to exercise discretion and the same cannot be treated as precedent as each case has to be considered on the facts and circumstances contained therein. 14. Upon going through the affidavits filed in support of the applications and bearing in mind the facts and circumstances set out above, we are satisfied that the revenue has shown sufficient cause for not being able to prefer the appeal within the period of limitation. 15. Thus, we are of the considered view that cause of justice would be served if the delay in filing the appeal is condoned and the appeals are heard on merits so that the Court can consider as to whether any substantial question of law arises for consideration. 16. For all the above reasons, the applications are allowed and the delay in filing the appeal is condoned. 17. List the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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