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TMI Blog2024 (9) TMI 1195X X X X Extracts X X X X X X X X Extracts X X X X ..... ion u/s 264 of the Act. Therefore, the commissioner having been conferred the power to condone the delay to do substantial justice to parties by disposing the matter on merits should have, considering the facts and circumstances of the case, in particular that it took a long time for the CIT(A) to dispose petitioner's appeal, ought to have condoned the delay. As relying on SMITA ROHIT GUPTA [ 2023 (9) TMI 220 - BOMBAY HIGH COURT] Revision u/s 264 of the Act is maintainable against the intimation send under Section 143 (1) of the Act. We answer the question accordingly. - HONOURABLE MR. JUSTICE BHARGAV D. KARIA AND HONOURABLE MR. JUSTICE NIRAL R. MEHTA Appearance: For the Petitioner(s) No. 1 : Mr B S Soparkar (6851). For the Respondent(s) No. 1 : Ms Maithili D Mehta (3206). ORAL ORDER (PER : HONOURABLE MR. JUSTICE NIRAL R. MEHTA) 1. The petitions involve similar facts and identical issues, therefore, they were heard together to be treated for disposal by this common judgment and order. 2. In the facts and circumstances of the case, having regard to the issues involved and with consent and request of learned advocates for the parties, both these Special Civil Applications were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009-10. In this regards, comparative working of depreciation on goodwill, as computed by respondent and Assessing Officer is provided as under: Assessment Year Depreciation claimed by petitioner Depreciation computed by AO 2007-08 - 4,24,86,335/ (Being 12.5% of value of goodwill on demerger i.e. Rs. 33,98,90,680/-) (Notional computation, actual depreciation is not granted) 2008-09 - 7,43,51,086/ (Notional computation, actual depreciation is not granted) 2009-10 - 5,57,63,315/ (Notional computation, actual depreciation is not granted) 2010-11 4,24,86,335/- 4,18,22,486/- (Being 12.5% of value of goodwill on demerger i.e. Rs. 33,98,90,68 0/-) 2011-12 7,43,51,086/ 3,13,66,865/ 2012-13 5,57,63,315/ 2,35,25,148/ 2013-14 4,18,22,486/ 1,76,43,861/ 5.2 The petitioner, in the aforesaid facts and circumstances, filed application under Section 264 of the Act. However, the respondent, vide order dated 4.3.2020, rejected the petitioner s revision application on the ground of being not maintainable. Hence, the present petition is filed seeking appropriate reliefs. 6. Heard learned advocate Mr. B.S. Soparkar for the petitioner and learned advocate Ms. Maithili Mehta for the respondent. 7. Having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The doctrine must be applied in a rational common sense and pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of a nondeliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk. 12. In view of the law laid down by the Apex Court, it was not necessary for the petitioner to have explained each and every day's delay. On the contrary, the Apex Court held that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice is to be preferred. The Apex Court also held there is no presumption that delay is intentional and deliberate, as normally a litigant does not stand to benefit by resorting to delay. As stated earlier, in the application dated 20th March, 2014 seeking invocation of the power under section 264, the delay has been adequately explained. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded to meet the situation faced by an aggrieved assessee who is unable to approach the appellate authority for relief and has no other alternate remedy available under the Act. In the light of the decision of the Apex Court in the case of Bharat Earth Movers (supra), the provision for Leave Encashment being a current liability the assessee is entitled for deduction of that amount. The Assessing Officer had accepted the return, ignoring the request of the assessee for deduction of the above amount. Therefore, the relief which was not granted by the Assessing Officer could be granted by the Commissioner under section 264. Before allowing such deduction if any further enquiry was required to be done, the Commissioner could have either himself enquired or directed the Assessing Officer to do the needful. However, the Commissioner has declined to exercise power under section 264 besasse of amendment to section 143 (1) by Finance Act, 1999. Powers of the Assessing Officer to make prima facie adjustments under section 143 (1), done away with by Finance Act, 1999 (with effect from 1st June, 1999) does not in any way effect the right of the Commissioner under section 265 of the Act to grant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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