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TMI Blog2023 (5) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... pment. (ii) That the aggrieved by the aforesaid both the additions appeal was contested before CIT(A)- 41, Mumbai u/s.250 Of the Act wherein the 1st addition of Rs 1,90,000 was deleted whereas the 2nd addition was confirmed, vide order CIT(A)-41/IT/152/16-17 dated 23.05.2018, distinguishing the order of Coordinate Bench of this Tribunal, relied upon by me, in the case of Kishore B Bangia vide ITA 2349/M/2011 vide dated 31.01.2012. (iii) That both the proceedings, proceeding u/s 143(3) as well as proceeding u/s.250 of the Income Tax Act, were represented by the Bharat B Shah and CO., Chartered Accountants which advised me that addition confirmed is based on the order of the Co-ordinate Bench of the ITAT, Mumbai and hence, there is little merit in the case to take it before the 2nd appellate authority and this advice was followed in view of fiduciary relation have had with the CA Shri Bharat B Shah. (iv) That following the aforesaid order of the CIT(A)-41, Mumbai, penalty proceeding was initiated u/s.271(1)(c) and eventually levied, vide Order DIN ITBA/PNL/F/271(1)(c)/2021- 22/1038515609(1) dated 07.01.2022 and the same is contested before the NFAC, Delhi. (v) That while chal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "6. We have heard the rival submissions and perused the record. There was a delay of 2819 days in filing the appeal before the Tribunal. The assessee has stated the reasons in the condonation petition accompanied by an affidavit which has been cited in the earlier para. The assessee filed an affidavit explaining the reasons and prayed for condonation of delay. The reason stated by the assessee is due to inadvertent omission on the part of Shri Unnikrishnan Nair N, CA in taking appropriate action to file the appeal. He had a mistaken belief that the appeal for this year was filed by the assessee as there was separate Counsel to take steps to file this appeal before the ITAT. Therefore, we have to consider whether the Counsel's failure is sufficient cause for condoning the delay. The Madras High Court considered an identical issue in the case of Sreenivas Charitable Trust v. Dy. CIT (280 ITR 357) and held that mixing up of papers with other papers are sufficient cause for not filing the appeal in time. The Madras High Court further observed that the expression "sufficient cause" should be interpreted to advance substantial justice. Therefore, advancement of substantial justice is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see by the binding Judgment of the jurisdictional High Court. Moreover, no counter-affidavit was filed by the Revenue denying the allegation made by the assessee. It is not the case of the Revenue that the appeal was not filed deliberately. Therefore, we have to prefer substantial justice rather than technicality in deciding the issue. As observed by Apex Court, if the application of the assessee for condoning the delay is rejected, it would amount to legalise injustice on technical ground when the Tribunal is capable of removing injustice and to do justice. Therefore, this Tribunal is bound to remove the injustice by condoning the delay on technicalities. If the delay is not condoned, it would amount to legalising an illegal order which would result in unjust enrichment on the part of the State by retaining the tax relatable thereto. Under the scheme of Constitution, the Government cannot retain even a single pie of the individual citizen as tax, when it is not authorised by an authority of law. Therefore, if we refuse to condone the delay, that would amount to legalise an illegal and unconstitutional order passed by the lower authority. Therefore, in our opinion, by preferring th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A similar view was taken by the Madras High Court in the case of Venkatadri Traders Ltd. v. CIT (2001) 168 CTR (Mad) 81 : (2001) 118 Taxman 622 (Mad). 6.5 The Mumbai Bench of this Tribunal in the case of Bajaj Hindusthan Ltd. v. Jt. CIT (AT) (277 ITR 1) has condoned the delay of 180 days when the appeal was filed after the pronouncement of the Judgment of the Apex Court. Furthermore, the Revenue has not filed any counter-affidavit opposing the application of the assessee for condonation of delay. The Apex Court in the case of Mrs. Sandhya Rani Sarkar vs. Smt. Sudha Rani Debi (AIR 1978 SC 537) held that non-filing of affidavit in opposition to an application for condonation of delay may be a sufficient cause for condonation of delay. In this case, the Revenue has not filed any counter-affidavit opposing the application of the assessee, therefore, as held by the Apex Court, there is sufficient cause for condonation of delay. The Supreme Court observed that when the delay was of short duration, a liberal view should be taken. "It does not mean that when the delay was for longer period, the delay should not be condoned even though there was sufficient cause. The Apex Court did not sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... development and this amount is basically a monthly rental compensation from the builder for rent of alternate accommodation. The assessee was asked to why the said amount received from the builders for alternate accommodation should not be treated as income from other sources and brought to tax. In response, Ld. AR of the assessee submitted that the amount received from builder is in the nature of hardship compensation and it is a capital receipt and thus not taxable in the hands of the assessee. 8. The Assessing Officer rejected the submissions of the assessee and held that it is not a capital receipt. He observed that it is clearly a revenue receipt in the form of alternate accommodation rent provided by the builder for development of his residences. Further, he observed that assessee has not utilized any amount of its receipt for his alternate accommodation. Accordingly, he treated the above amount as income of the assessee and taxed under the head "income from other sources". 9. Aggrieved assessee preferred an appeal before the Ld.CIT(A) and submitted as under: - "During the year under consideration, assessee has received compensation of Rs.3,73,191 from Rohan Infrastructur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al submissions and perusing the material on record, we find that compensation received by the assesse towards displacement in terms of Development Agreement is not a revenue receipt and constitute capital receipt as the property has gone into redevelopment. In such scenario, the compensation is normally paid by the builder on account of hardship faced by owner of the flat due to displacement of the occupants of the flat. The said payment is in the nature of hardship allowance / rehabilitation allowance and is not liable to tax. The case of the assessee is squarely supported by the decision of the Co-ordinate Bench in the case of Shri Devshi Lakhamshi Dedhia vs. ACIT in ITA No.5350/Mum/2012 wherein similar issue has been decided in favour of the assessee, the relevant operative portion is reproduced hereunder:- 15. We have considered the rivals submissions and perused the materials on records. We note that the assessee received compensation of Rs. 19,50,873/- from the developer when the building in which the assessee owned flat went for re-development as per the agreement between the developers and flat owners dated 28.03.2008. The said compensation was paid towards hardship Rs, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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