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TMI Blog2023 (7) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... yee to whom power of attorney was given in the absence of appellant s son Shri Kuldeep Jamnadas who also left for USA in 2008 also requires proper consideration. According to the appellant, such attorney is neither conversant with such old matters, nor been able to take proper steps in the proceeding pending before the different judicial forums. Thus we find sufficient cause has been shown by the appellant in being unable to prefer the appeals before us within time Sufficient cause as it appears in the Act is to be interpreted and understood in its proper spirit as these terms are flexible enough to be applied liberally in the interest of justice even in the case of long delay. We, therefore, with the aforesaid observations, condone the delay. As the impugned orders passed by the Ld. CIT(A) is only on the ground that the Hon ble Income Tax Settlement Commission has exclusive jurisdiction on every aspect of this case in terms of Section 245F(2) of the Act and in terms of provision of Chapter XI-A. It is an admitted position that the Settlement Commission has already rejected the application filed by the assessee on the ground of shortfall in the payment of interest and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 25.07.2002 passed by the Learned JCIT, Junagadh Range-1, Junagadh, under Section 271D and 271E of the Income Tax Act, 1961 (hereinafter referred as to the Act ) for the block period from 01.04.1989 to 08.06.1999. 2. We have heard the rival submissions made by the respective parties and perused the materials available on record. 3. Both the appeals being ITA Nos. 215 216/Rjt/2022 are time barred by 6901 days. 4. The appeals have been preferred by the assessee, a non-resident Indian, one of the partners in the partnership firm, namely, M/s. Kuldeep Ginning Pressing Factory in the capacity of Karta of his Hindu undivided family and currently staying at USA. These appeals are having a chequered history. Initially, a search and seizure action under Section 132 of the Act was conducted at the premises of the appellant on 08.06.1999. Consequent to such search, the jurisdiction of the appellant was transferred to the Deputy Commissioner of Income Tax, Jamnagar and the assessment proceeding whereof was finalized under Section 158BC of the Act on 29.06.2001 for the block period ended on 08.06.1999 determining the undisclosed income of appellant at Rs. 71,74,590/- on the all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07.2007. 9. Being aggrieved by and/or dissatisfied with the said order dated 28.05.2013 the appellant duly filed Special Civil Application before the Hon ble Jurisdictional High Court at Gujarat on 15.01.2014, whereupon, partial relief was granted to the appellant on 26.07.2016. Hon ble High Court was pleased to grant liberty to the appellant to file appeals before the Ld. CIT(A) latest by 31.08.2016 with an observation that the facts of the case were quite complicated and the statutory provisions even more so. 10. In terms of the liberty granted by the Hon ble High Court at Gujarat, the appellant on 18.08.2016 duly filed appeal against the order passed under Section 158BC of the Act dated 16.07.2003. During the pendency of the said appeal before the Ld. CIT(A), on 12.02.2021 the appellant further opted for the Vivad se Vishwas Scheme (VSVS) for settling the tax issue in regard to the pending appeal under the said Scheme introduced by and under the Finance Bill, 2020 under Vivad se Vishwas Act, 2020, final order whereof was received on 19.04.2021 under the VSV, 2020 Scheme in Form No.5. 11. Before us, the appellant filed appeal being ITA No. 215/Rjt/2022 for the block peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this matter, particularly, the order passed by the Hon ble Jurisdictional High Court in granting partial relief to the appellant by granting liberty to the appellant to file quantum appeal before the CIT(A) latest by 31.08.2006 appreciating the facts of the case were quite complicated and statutory provisions even more so. 15. It is pertinent to note that these two penalty appeals before us are actually arising out of the quantum appeal order dated 29.06.2001 and the liberty granted by the Hon ble Jurisdictional High Court was also in respect of dismissal of appeal by the Ld. CIT(A)-4, Rajkot dated 16.07.2003 arising out of the said quantum order dated 29.06.2001 under Section 158BC of the Act. Further that, though these two appeals are against the penalty orders but the status of both these two penalty appeals and the quantum appeal in which liberty was granted by the Hon ble Jurisdictional High Court on 26.07.2016 remained same as on 16.07.2003 i.e. the date of dismissal order of CIT(A)-4, Rajkot and also on the date of order on 26.07.2016 passed by the Hon ble Jurisdictional High Court. In that event, the delay in respect to these two penalty appeals filed before us by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2001 and alleged that the appellant had violated provisions of section 269SS and 269T of the Act and, proposed to initiate the penalty proceedings under section 271D and 271E separately. 3. Thereafter, the appellant's case was transferred to JCIT, Junagadh Range- 1,Junagadh. The jurisdictional AO, initiated penalty proceedings against the appellant u/s 27ID and u/s 271E of the Act. The AO issued show-cause notice dated 15.01.2002, requiring the appellant to show-cause as to why the penalty of Rs 26,97,460/- should not be levied on alleged ground of contravening provisions of section 269SS. In response to the same, appellant stated that it had not contravened provisions of section 269SS of the Act. Furthermore, the appellant requested to keep the penalty proceedings in abeyance in order to avoid multiple proceedings as the settlement application filed before the Hon'ble Settlement Commission was still pending. However, the jurisdictional AO did not consider the submission of appellant and passed order u/s 271D dated 25.07.2002, levying penalty of Rs 26,97,460/-. 4.0 Being aggrieved, the appellant had filed an appeal against the penalty order before CIT (A) - IV, R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not much conversant with the old matters and as such the delay occurred. 7.0 Thus, the appellant was prevented by reasonable and sufficient cause in requesting the concerned CIT (A) to recall the earlier appeal filed against penalty order. 16. At the time of hearing of the instant appeal, Learned Counsel appearing for the appellant submitted before us that the appellant along with his wife Smt. Kaushalya J. Vikani permanently shifted to USA in the year 2003. He has further drawn our attention to the affidavit affirmed by the appellant appearing at Page Nos. 115 116 of the paper book filed before us. The relevant portion whereof is as follows: 17. The Ld. Counsel, therefore, vehemently argued on the two aspects of the matter, mainly, health issue of the appellant s wife who shifted to USA in 2003 and visiting India for medical treatment; the supporting documents whereof have also been filed before us on 28.03.2023 by the Ld. Counsel appearing for the appellant annexed to the paper book filed. Page Nos. 1 to 5 of the said paper book consist of the medical papers of appellant s wife for F.Y. 2008-09 and Page Nos. 6 to 8 consist of the medical documents for F. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jurisdictional High Court as well. In fact, in our considered opinion, in the case in hand the following should be taken into account in order to adjudicate the issue of condonation of delay: i. A liberal, pragmatic and justice oriented and non-pedantic view is required to be observed while dealing with the application for condonation of delay. ii. The terms sufficient cause should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. iii. Substantial justice being paramount and pivotal, the technical considerations should not be given undue and uncalled for emphasis. iv. No presumption can be attached to deliberate position of delay but, gross negligence on the part of the either Counsel or litigant is to be taken note which is not found in the case in hand before us. v. Apart from that we have to consider the prejudice theory; the appellant in this particular case would be seriously prejudiced in the event these applications in respect of penalty appeals are not allowed, keeping in view of the particular fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejection of the application by the Settlement Commission the appellant filed appeal before the Hon ble Jurisdictional High Court and obtained order on 26.07.2016 in favour of the appellant by way of liberty to file the appeal before the appropriate forum against the order passed in the quantum appeal. The said quantum appeal was also settled under the VSV Scheme, 2020. As the penalty is consequential to the order of quantum proceeding, the assessee filed appeals challenging the order of dismissal dated 16.07.2003 passed by the Ld. CIT(A)-4, Rajkot on the ground of pendency of the matter before the Settlement Commission. The assessee, has a right to approach the Court seeking remedy against the said orders and we cannot keep the assessee aside remediless, keeping in view of this fact of having no deliberate or willful violation or malafide intention on the part of the assessee in filing the appeal before us though the same is apparently after a long delay. viii. While going through the entire records of the case, we do not find any fraud or misinterpretation by the assessee by taking recourse to the technicalities of law of limitation. 21. On this aspect, we are also enlight ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2003. Initially, when appeals were filed against order dated 25.07.2002 for levy of penalty under Section 271D and 271E of the Act to the tune of Rs. 26,97,460/- and Rs. 23,45,415/- respectively on 16.07.2003, the Ld. CIT(A)-4, Rajkot dismissed the said two appeals stating the Settlement Commission had exclusive jurisdiction on every aspect of this case in terms of Section 245F(2) of the Act and therefore the appeals were not found to be maintainable. These two appeals filed by the appellant on 13.11.2021 practically were for recalling of confirmation of penalty order passed by the Ld. CIT(A)-IV, Rajkot in view of the rejection of application by the Settlement Commission on 28.05.2013 and disposing of the Special Civil Application by the Hon ble Gujarat High Court on 26.07.2016 restoring the right of the appellant to file the quantum appeal before the Commissioner stating that the facts of the case was quite complicated and the statutory provisions even more so. In fact, on this premise, the assessee preferred appeal before the Ld. CIT(A)-13, Ahmedabad on 13.11.2021 with the prayer for recalling of the orders passed by the Ld. CIT(A) dated 16.07.2003, whereby and whereunder the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in in its proper perspective. Though, we do not want to make any comment on the approach taken by the Ld. CIT(A) in both the occasions but keeping in view the law of reasonableness and fairness which plays a prime role in rendering substantive justice to the litigant, in this case the appellant before us, we ultimately think it proper to adjudicate the issue by ourselves. 27. The present penalty proceedings emanate from the order passed by the Ld. AO dated 29.06.2001 under Section 158BC of the Act in respect of the Block Period ended on 08.06.1999. During the course of assessment proceeding, the Ld. AO recorded its finding at para 6 of assessment order that from the rough cash book being Annexure A-16, A-41 A-75, it was found that the assessee has credited large amount in the name of Patel Cotton Company and the said account is operated as current account but no transaction has been recorded in the regular books of accounts. The said account was also reproduced in the assessment order; the assessee did not produce any evidence or confirmation in support of the said credits in the account. In fact, it is found from the records that the assessee has credited total of Rs. 6,10,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... side the AO has held that the entire receipts and payments recorded in the seized material do not reflect in the regular books of account and the assessee could not furnish evidence related to its genuineness and as such the peak of receipts is held to be the undisclosed income of the assessee and simultaneously initiate and levy penalty u/s 271D holding it as loan or deposit from others is contradictory Once the AO has taxed the peak of the transaction in the hands of the appellant the question of holding the same as loan or deposit for the purpose of section 271D is ab initio void 31. We further note that the finding of the Ld.AO to the effect that the peak of receipts recorded in the name of third parties is nothing but appellant's own undisclosed income has already reached finality as soon as the matter got settled under the Vivad Se Vishwas Act, 2020 on 19.04.2021 in respect of the appeal pending before the appellate forum arising out of the same assessment order dated 29.06.2001. Thus, there is no scope for illustration of the mechanism already adopted by the Ld. AO in imposing penalty as we find that the peak of appellant has been held to be the undisclosed income o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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