Kapil Dev, New Delhi V. ACIT Central Cir-9, New Delhi

CO 344/DEL/2011

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8688 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 8 month(s) 14 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 28-06-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 24-06-2013
• Assessment Year: 1992-1993
• Appeal Filed On: 14-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: TARUN SEEM
• Keywords: Reopening of assessment; Gift; Difference of opinion; Condonation of delay; Change of opinion
• Section: 143(3); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH H HH H : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND SHRI SHRI SHRI SHRI CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG, ,, , JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ITA NO ITA NO ITA NO ITA NOS SS S. .. .4788/DEL/2003 & 4789/DEL/2003 4788/DEL/2003 & 4789/DEL/2003 4788/DEL/2003 & 4789/DEL/2003 4788/DEL/2003 & 4789/DEL/2003 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEARS SS S : : : : 1992 1992 1992 1992- -- -93 & 93 93 & 93 93 & 93 93 & 93- -- -94 9494 94 ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE- -- -9, 9,9, 9, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. VS. VS. VS. VS. SHRI KAPIL DEV, SHRI KAPIL DEV, SHRI KAPIL DEV, SHRI KAPIL DEV, 39, SUNDER NAGAR, 39, SUNDER NAGAR, 39, SUNDER NAGAR, 39, SUNDER NAGAR, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. PAN : PAN : PAN : PAN : AADPD9024A. AADPD9024A. AADPD9024A. AADPD9024A. (APPELLANT) (RESPONDENT) CROSS OBJECTION NOS.344/DEL/2011 & 345/DEL/2011 CROSS OBJECTION NOS.344/DEL/2011 & 345/DEL/2011 CROSS OBJECTION NOS.344/DEL/2011 & 345/DEL/2011 CROSS OBJECTION NOS.344/DEL/2011 & 345/DEL/2011 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEARS SS S : : : : 1992 1992 1992 1992- -- -93 & 93 93 & 93 93 & 93 93 & 93- -- -94 9494 94 SHRI KAPIL DEV, SHRI KAPIL DEV, SHRI KAPIL DEV, SHRI KAPIL DEV, 39, SUNDER NAGAR, 39, SUNDER NAGAR, 39, SUNDER NAGAR, 39, SUNDER NAGAR, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. PAN : AADPD9024A. PAN : AADPD9024A. PAN : AADPD9024A. PAN : AADPD9024A. VS. VS. VS. VS. ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE- -- -9, 9,9, 9, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI TARUN SEEM, SR.DR. ASSESSEE BY : SHRI K.SAMPATH AND SHRI RAJ KUMAR, ADVOCATES. ORDER ORDER ORDER ORDER PER G. PER G. PER G. PER G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VP VPVP VP : : : : ITA NOS.4788 & 4789/DEL/2003: ITA NOS.4788 & 4789/DEL/2003: ITA NOS.4788 & 4789/DEL/2003: ITA NOS.4788 & 4789/DEL/2003:- -- - THESE APPEALS BY THE REVENUE ARE DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-II, NEW DELHI DATED 4 TH JULY, 2003 FOR THE ASSESSMENT YEARS 1992-93 & 1993-94. ITA-4788 & 4789/D/2003 & C.O. 344 & 345/D/2011 2 2. THE COMMON GROUND RAISED IN THESE APPEALS BY THE RE VENUE READS AS UNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD.CIT(A) ERRED IN ANNULLING THE ASSTT. BY IGNORING T HE FACT THAT NO ASSTT. WAS MADE IN THIS CASE U/S 143(3) THEREFORE REFERENCE TO PROVISION TO SECTION 147 IS NOT CALLED FO R. 3. THE FACTS OF THE CASE ARE THAT IN BOTH THE YEARS, T HE ASSESSMENTS WERE REOPENED UNDER SECTION 147 OF THE INCOME-TAX A CT, 1961 AND AGAINST SUCH ORDER OF REASSESSMENT, THE ASSESSEE HAD FILED T HE APPEAL BEFORE THE LEARNED CIT(A) WHO HAD CANCELLED THE REO PENING OF ASSESSMENT AND, CONSEQUENTLY, HAD ANNULLED THE ASSESSMENT OR DER. AGAINST THE ORDER OF LEARNED CIT(A), THE REVENUE WA S BEFORE THE ITAT. THE ITAT, VIDE ORDER DATED 15 TH FEBRUARY, 2006 IN ITA NOS.4787 TO 4789/DEL/2003, UPHELD THE ORDER OF LEARNED CIT(A) A ND DISMISSED THE APPEALS FILED BY THE REVENUE. ON APPEAL BY THE REVE NUE, HON'BLE JURISDICTIONAL HIGH COURT REMITTED THE MATTER TO THE ITAT WITH THE FOLLOWING FINDING:- THESE APPEALS ARE IN RESPECT OF THE ASSESSMENT YEARS 1992-93 AND 1993-94 AND ARISE OUT OF THE ORDER PASSED BY THE INCOME TAX APPELLATE TRIBUNAL ON 15.02.2006 IN RESPECT OF THE ITA NOS.4788 TO 4789/DEL/2003. THE IMPUGNED ORDER IS A COMMON ORDER WHICH ALSO INCLUDES THE ASSESSMENT YEAR 1991-92. THE APPEAL AGAINST THE ASSESSMENT YEAR 1991-92 BEING ITA NO.1563/2006 HAS BEEN DISMISSED BY THIS COURT TODAY ITSELF BY A SEPARATE ORDER. 2. HOWEVER, WE ARE TAKING A DIFFERENT APPROACH IN RESPECT OF THE PRESENT APPEAL BECAUSE THERE APPEARS TO BE A MISTAKE IN TRIBUNALS ORDER WITH REGARD TO THE TWO YEARS IN QUESTION IN THESE APPEALS. IN PARAGRAPH NO.8 OF T HE IMPUGNED ORDER, IT HAS BEEN RECORDED THAT :- IT IS NOT DISPUTED THAT IN ALL THE THREE ASSESSMENT YEAR S, THE ASSESSMENT HAD BEEN COMPLETED UNDER SECTION 143(3) ITA-4788 & 4789/D/2003 & C.O. 344 & 345/D/2011 3 INCOME TAX ACT, 1961, AND THEREFORE, IN VIEW OF THE PROVISO TO SECTION 147, THE ASSESSMENT COULD BE REOPENED ONLY I N CASE OF ASSESSEE FAILED OR TO DISCLOSE THE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT 3. IT IS AN ADMITTED POSITION BEFORE THIS COURT THAT I N SO FAR AS THE ASSESSMENT YEARS 1992-93 AND 1993-94 ARE CONCERNED THERE WAS NO ASSESSMENT UNDER SECTION 143(3) OF THE ACT. THE ONLY ASSESSMENT UNDER SECTION 143(3) W AS IN RESPECT OF THE ASSESSMENT YEAR 1991-92. THE TRIBUNA L SEEMS TO HAVE OVERLOOKED THIS FACT AND HAS BASED ITS DECISION PURELY ON THE GROUND THAT THE ASSESSMENT HAD BEEN COMPLETED UNDER SECTION 143(3) OF THE ACT IN R ESPECT OF THE ASSESSMENT YEARS 1992-93 AND 1993-94 ALSO. SINCE THIS ERROR IS APPARENT AND THE LEARNED COUNSEL FOR THE PARTIES HAVE FAIRLY STATED THAT NO SUCH ASSESSMENT HAS BEEN DONE IN RESPECT OF THE YEARS IN QUESTION IN THESE APPEALS, WE FEEL THAT IT WOULD BE APPROPRIATE THAT T HE MATTER WITH REGARD TO THESE YEARS IS REMITTED TO THE TRIBUNAL FOR CONSIDERATION AFRESH. 4. CONSEQUENTLY, WE DISPOSE OF THESE APPEALS AND DIRECT THAT THE TRIBUNAL SHALL CONSIDER THE APPEALS FI LED BY THE REVENUE FOR THE ASSESSMENT YEARS 1992-93 AND 1993- 94 AFRESH. 4. ACCORDINGLY, THESE APPEALS WERE FIXED FOR HEARING. AT THE TIME OF HEARING BEFORE US, THE LEARNED COUNSEL FAIRLY ADMITTE D THAT THE ORIGINAL ASSESSMENT FOR THESE TWO YEARS WAS NOT MADE UNDER SECTION 143(3) AND, THEREFORE, PROVISO TO SECTION 147 WAS NOT APPLIC ABLE. HE, HOWEVER, STATED THAT ALL THE FACTS WERE ON RECORD AND , THEREFORE, EVEN IF ORIGINAL ASSESSMENT WAS MADE UNDER SECTION 143(1), RE OPENING IS BASED UPON THE CHANGE OF OPINION. 5. LEARNED DR, ON THE OTHER HAND, STATED THAT WHEN T HERE WAS NO ORIGINAL REGULAR ASSESSMENT, OBVIOUSLY, NO OPINION WAS E XPRESSED BY THE ASSESSING OFFICER. WHEN NO OPINION WAS EXPRESSED, THE QUESTION OF CHANGE OF OPINION DOES NOT ARISE. ITA-4788 & 4789/D/2003 & C.O. 344 & 345/D/2011 4 6. AFTER CONSIDERING THE ARGUMENTS OF BOTH THE SIDES, W E ENTIRELY AGREE WITH THE ARGUMENT OF THE LEARNED DR. IN THIS CASE, THERE WAS NO ORIGINAL ASSESSMENT. ONCE THERE WAS NO ORIGINAL ASSESSMENT, NO OPINION WAS EXPRESSED BY THE ASSESSING OFFICER. THEREFORE , IT CANNOT BE SAID THAT THE REOPENING OF ASSESSMENT WAS DUE TO CHANG E OF OPINION BY THE ASSESSING OFFICER. MOREOVER, BY THESE APPEALS, TH E REVENUE HAS CHALLENGED THE ORDER OF LEARNED CIT(A) DATED 4 TH JULY, 2003 WHICH WAS THE COMMON ORDER FOR AY 1991-92, 1992-93 & 1993- 94. FROM A PERUSAL OF LEARNED CIT(A)S ORDER, IT IS EVIDENT THAT HE DISCUSSED THE FACTS IN DETAIL RELATING TO AY 1991-92 AND HELD THAT THE ORIGINAL ASSESSMENT WAS COMPLETED UNDER SECTION 143(3). ALL THE MATERIAL FACTS NECESSARY FOR ASSESSMENT WERE DULY DISCLOSED BY THE ASSE SSEE. THEREFORE, THE REOPENING OF ASSESSMENT AFTER FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR WAS BAD IN LAW IN VIEW O F THE PROVISO TO SECTION 147. THEREAFTER, ON THE LAST PAGE, HE JU ST MENTIONED ONE LINE THE FACTS AND CIRCUMSTANCES ARE SIMILAR FOR ASSTT. YEAR 92-93 AND 93-94 AND, THEREFORE, ON A CAREFUL CONSIDERATION OF ALL THE FACTS AND CIRCUMSTANCES OF THE CASE THE IMPUGNED ASSESSMENTS ARE ANNU LLED . NOW, IT IS EVIDENT THAT THE FACTS OF AY 1991-92 ARE DIFFERENT THAN THAT OF AY 1992-93 & 1993-94. IN AY 1991-92, ORIGINAL ASSESSME NT WAS COMPLETED UNDER SECTION 143(3) AND, THEREFORE, PROV ISO TO SECTION 147 WAS APPLICABLE BECAUSE THE ASSESSMENT WAS REOPENED AFTER F OUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. SO FAR AS THE ASSESSMENT YEARS 1992-93 & 1993-94 ARE CONCERNED, THE OR IGINAL ASSESSMENT WAS NOT COMPLETED UNDER SECTION 143(3). THER EFORE, PROVISO TO SECTION 147 WAS NOT APPLICABLE. IN VIEW O F THE ABOVE, THE ORDER OF LEARNED CIT(A) FOR AY 1992-93 AND 1993-94 CANNOT BE SUSTAINED. WE REVERSE THE SAME AND HOLD THAT LEARNED C IT(A) WAS NOT JUSTIFIED IN QUASHING THE REOPENING OF ASSESSMENT AS WELL AS ANNULLING THE IMPUGNED ASSESSMENT ORDERS FOR AY 1992-93 AND 1993- 94. ACCORDINGLY, THE APPEALS OF THE REVENUE ARE ALLOWED. ITA-4788 & 4789/D/2003 & C.O. 344 & 345/D/2011 5 CROSS CROSS CROSS CROSS- -- -OBJECTION NOS.344 & 345/DEL/2011: OBJECTION NOS.344 & 345/DEL/2011: OBJECTION NOS.344 & 345/DEL/2011: OBJECTION NOS.344 & 345/DEL/2011:- -- - 7. THESE CROSS-OBJECTIONS FILED BY THE ASSESSEE ARE LATE BY 2082 DAYS. THE ASSESSEE HAD FILED THE APPLICATION FOR CONDON ATION OF DELAY AND, AT THE TIME OF HEARING BEFORE US, THE LEARNED C OUNSEL FOR THE ASSESSEE ARGUED AT LENGTH WITH REGARD TO CONDONATION OF DELAY. HE STATED THAT WHEN THE APPEAL WAS FIXED FOR HEARING OR IGINALLY, I.E. ON 14 TH FEBRUARY, 2006, THE APPEAL MEMO FROM THE DEPARTMENT WAS NOT SERVED UPON THE ASSESSEE AND THE ASSESSEE SOUGHT ADJOURNMENT VIDE L ETTER DATED 14 TH FEBRUARY, 2006 IN WHICH THE ASSESSEE HAD REQUESTED FOR THE SUPPLY OF COPY OF THE GROUNDS OF APPEAL AS FILED BY T HE DEPARTMENT. HOWEVER, THE BENCH REJECTED THE ASSESSEES APPLICATION F OR ADJOURNMENT AND THE CASE WAS HEARD IN WHICH REVENUES APPEAL WAS DISMISSED. THUS, THE APPEAL WAS DECIDED BY THE ITAT EV EN WITHOUT THE SUPPLY OF COPY OF APPEAL MEMO BY THE DEPARTMENT. TH E ASSESSEE CAN FILE THE CROSS-OBJECTION ONLY AFTER THE RECEIPT OF C OPY OF APPEAL MEMO FILED BY THE DEPARTMENT. THAT AFTER THE ORDER OF I TAT, WHEREIN THE REVENUES APPEAL WAS DISMISSED, THE ASSESSEE HAD NO OCCASION TO FILE THE CROSS-OBJECTION BECAUSE THE IMPUGNED ASSESSMENT ORDE R STOOD ANNULLED. THAT THE HONBLE HIGH COURT DECIDED THE MATTER AGAINST THE ASSESSEE VIDE ORDER DATED 21 ST AUGUST, 2008. HOWEVER, THE PERSON WHO APPEARED BEFORE THE HIGH COURT ON BEHALF OF THE ASSESSEE NEVER ADVISED THE ASSESSEE THAT ANY CROSS-OBJECTION IS NOW REQUI RED TO BE FILED BEFORE THE ITAT. THAT THE ASSESSEE IS A SPORTSPERSO N VIZ., A CRICKETER WHO, ONCE UPON A TIME, WAS THE CAPTAIN OF THE INDIAN CRICKET TEAM. HE IS NOT AWARE OF THE INTRICACIES OF THE INC OME-TAX ACT. THAT WHEN THE APPEALS FOR THE YEARS UNDER CONSIDERATION WER E FIXED BEFORE THE ITAT ON 12 TH OCTOBER, 2011, THE PRESENT COUNSEL ADVISED THE ASSESSEE TO FILE THE CROSS-OBJECTIONS AND THE CROSS-OBJECTIO NS WERE IMMEDIATELY FILED ON 14 TH OCTOBER, 2011. HE, THEREFORE, SUBMITTED THAT ITA-4788 & 4789/D/2003 & C.O. 344 & 345/D/2011 6 THE DELAY IN FILING OF THE CROSS-OBJECTIONS MAY BE CON DONED. IN SUPPORT OF HIS CONTENTION, HE RELIED UPON THE FOLLOWING DECI SIONS:- (I) COLLECTOR, LAND ACQUISITION VS. MST. KATIJI AND OTHER S [1987] 167 ITR 471 (SC). (II) AUTO CENTRE VS. STATE OF UTTAR PRADESH AND OTHERS [2 005] 278 ITR 291 (ALL). (III) N. BALAKRISHNAN VS. M. KRISHNAMURTHY [1998] 7 SCC 12 3 (SC). 8. LEARNED DR, ON THE OTHER HAND, STATED THAT EVEN I F IT IS ACCEPTED THAT DURING ORIGINAL PROCEEDINGS BEFORE THE ITAT THE ASSESSEE DID NOT GET ADEQUATE OPPORTUNITY OF FILING THE CROSS-OBJECTI ONS BECAUSE HIS APPEALS WERE DECIDED EX PARTE , THE ASSESSEE OUGHT TO HAVE FILED THE CROSS-OBJECTIONS IMMEDIATELY AFTER THE PRONOUNCEMENT OF THE ORDER BY THE HON'BLE JURISDICTIONAL HIGH COURT. THAT THE HON 'BLE JURISDICTIONAL HIGH COURT PRONOUNCED THE ORDER ON 21 ST AUGUST, 2008 AND THE CROSS- OBJECTIONS WERE FILED BY THE ASSESSEE ON 14 TH OCTOBER, 2011. THUS, THERE WAS A DELAY OF MORE THAN THREE YEARS IN FILING THE CROSS- OBJECTIONS AFTER THE ORDER OF HON'BLE JURISDICTIONAL HIGH COURT. NO SATISFACTORY EXPLANATION HAS BEEN GIVEN FOR SUCH DELA Y OF MORE THAN THREE YEARS. HE, THEREFORE, SUBMITTED THAT THE DELAY IN FILING OF THE CROSS-OBJECTIONS SHOULD NOT BE CONDONED. 9. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BOTH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. INSOFAR TH E FILING OF CROSS- OBJECTIONS BEFORE THE ORIGINAL ORDER OF THE ITAT IS C ONCERNED, WE FIND THAT ORIGINALLY, THE APPEALS OF THE REVENUE WERE FIX ED FOR HEARING FOR THE FIRST TIME ON 14 TH FEBRUARY, 2006. THE ASSESSEE SOUGHT ADJOURNMENT VIDE LETTER DATED 14 TH FEBRUARY, 2006 WITH THE FOLLOWING REQUEST:- ITA-4788 & 4789/D/2003 & C.O. 344 & 345/D/2011 7 THE ABOVE MATTER IS FIXED FOR HEARING BEFORE YOUR H ONOURS TODAY. IN THIS MATTER THE GROUNDS OF APPEAL AS FILED BY THE DEPARTMENT ARE YET TO BE RECEIVED. KINDLY THEREFOR E MAKE THE SAME AVAILABLE AND PROVIDE US. 10. HOWEVER, THE ASSESSEES REQUEST WAS REJECTED BY THE BE NCH WITH THE REMARK CASE HEARD. ADJ. REJECTED.. WE COULD NOT FIND ON RECORD ANY EVIDENCE OF SERVICE OF APPEAL MEMO AND THE GROUN DS OF APPEAL UPON THE ASSESSEE. IN VIEW OF THE ABOVE, WE ACCEPT THE ASSESSEES CONTENTION THAT HE DID NOT HAD ANY OCCASION TO FILE THE CROSS-OBJECTIONS AFTER THE FILING OF THE APPEALS BY THE REVENUE. IN THE ORIGINAL ORDER, THE ITAT HAD DISMISSED THE REVENUES APPEALS AND THEREBY, UP HELD THE ANNULLING OF ASSESSMENT. THEREFORE, TILL THE ORDER OF THE HON'BLE JURISDICTIONAL HIGH COURT, THE ASSESSEE HAD NO GRIEVANCE . HOWEVER, HON'BLE JURISDICTIONAL HIGH COURT SET ASIDE THE MATTER OF THE ITAT FOR THE ASSESSMENT YEARS UNDER APPEAL ON 21 ST AUGUST, 2008. THEREAFTER, THE ASSESSEE OUGHT TO HAVE FILED THE CROSS-OBJECTIONS. H OWEVER, WE NOTICE THAT BEFORE THE HON'BLE JURISDICTIONAL HIGH C OURT, ONE SHRI S.KRISHNAN APPEARED ON BEHALF OF THE ASSESSEE, VIZ., SHR I KAPIL DEV. WHILE, BEFORE THE ITAT, HE IS REPRESENTED BY SHRI K. SAMPATH. THE ASSESSEE IS A RENOWNED CRICKETER AND, THEREFORE, WE ACC EPT THE CONTENTION OF THE LEARNED COUNSEL THAT THE ASSESSEE WAS NOT AWARE ABOUT THE INTRICACIES OF THE INCOME-TAX ACT AND HIS COUNSEL, WHO APPEARED BEFORE HONBLE HIGH COURT, NEVER ADVISED TO FILE CROSS- OBJECTION. AFTER THE ORDER OF HON'BLE JURISDICTIONA L HIGH COURT, THE APPEALS WERE FIXED FOR HEARING FOR THE FIRST TIME BEF ORE THE ITAT ON 12 TH OCTOBER, 2011 AND THE ASSESSEE FILED THE CROSS-OBJECTION S ON 14 TH OCTOBER, 2011. 11. HONBLE APEX COURT IN THE CASE OF MST. KATIJI AN D OTHERS (SUPRA) HELD AS UNDER:- ITA-4788 & 4789/D/2003 & C.O. 344 & 345/D/2011 8 THE LEGISLATURE HAS CONFERRED THE POWER TO CONDONE D ELAY BY ENACTING SECTION 5 OF THE LIMITATION ACT OF 1963 IN ORDER TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO PARTI ES BY DISPOSING OF MATTERS ON MERITS. THE EXPRESSION SUFFICI ENT CAUSE EMPLOYED BY THE LEGISLATURE IS ADEQUATELY ELASTI C TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL M ANNER WHICH SUBSERVES THE ENDS OF JUSTICE THAT BEING THE LIF E- PURPOSE OF THE EXISTENCE OF THE INSTITUTION OF COURTS. IT IS COMMON KNOWLEDGE THAT THIS COURT HAS BEEN MAKING A JUSTIFIABLY LIBERAL APPROACH IN MATTERS INSTITUTED IN THIS COURT. BUT THE MESSAGE DOES NOT APPEAR TO HAVE PERCOLATED DOWN TO ALL THE OTHER COURTS IN THE HIERA RCHY. AND SUCH A LIBERAL APPROACH IS ADOPTED ON PRINCIPLE AS IT IS REALIZED THAT: 1. ORDINARILY, A LITIGANT DOES NOT STAND TO BENEFIT B Y LODGING AN APPEAL LATE. 2. REFUSING TO CONDONE DELAY CAN RESULT IN A MERITORI OUS MATTER BEING THROWN OUT AT THE VERY THRESHOLD AND CA USE OF JUSTICE BEING DEFEATED. AS AGAINST THIS ; WHEN DELAY I S CONDONED, THE HIGHEST THAT CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERITS AFTER HEARING THE PARTIES. 3. EVERY DAYS DELAY MUST BE EXPLAINED DOES NOT MEA N THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT E VERY HOURS DELAY, EVERY SECONDS DELAY? THE DOCTRINE MUST BE APPLIED IN A RATIONAL, COMMON SENSE AND PRAGMATIC MANNER. 4. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIO NS ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED, FOR THE OTHER SIDE CA NNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTICE BEING DONE BE CAUSE OF A NON-DELIBERATE 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 B ENEFIT BY RESORTING TO DELAY. IN FACT, HE RUNS A SERIOUS RISK. 6. IT MUST BE GRASPED THAT THE JUDICIARY IS RESPECTED N OT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECH NICAL ITA-4788 & 4789/D/2003 & C.O. 344 & 345/D/2011 9 GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTIC E AND IS EXPECTED TO DO SO. 12. IN THE CASE OF N.BALAKRISHNAN VS. M. KRISHNAMURTHY (SUPRA), HONBLE APEX COURT HELD AS UNDER:- THE PRIMARY FUNCTION OF A COURT IS TO ADJUDICATE T HE DISPUTE BETWEEN THE PARTIES AND TO ADVANCE SUBSTANTIAL JUSTICE. THE TIME-LIMIT FIXED FOR APPROACHING THE C OURT IN DIFFERENT SITUATIONS IS NOT BECAUSE ON THE EXPIRY OF SU CH TIME A BADE CAUSE WOULD TRANSFORM INTO A GOOD CAUSE. RULES OF LIMITATION ARE NOT MEANT TO DESTROY THE RIGH TS OF PARTIES. THEY ARE MEANT TO SEE THAT PARTIES DO NOT RE SORT TO DILATORY TACTICS, BUT SEEK THEIR REMEDY FOR THE REDRESS OF THE LEGAL INJURY SO SUFFERED. THE LAW OF LIMITAT ION IS THUS FOUNDED ON PUBLIC POLICY. 13. IN THE CASE OF AUTO CENTRE (SUPRA), HONBLE ALLAH ABAD HIGH COURT HELD AS UNDER:- IN MATTERS OF CONDONATION OF DELAY A PRAGMATIC VIEW SHOULD BE TAKEN AND THERE SHOULD BE A LIBERAL APPROAC H. THE LAW OF LIMITATION IS ENSHRINED IN THE MAXIM INTER EST REIPUBLICAE UT SIT FINIS LITIUM (IT IS FOR THE GENERAL WELFARE THAT A PERIOD BE PUT TO LITIGATION). RULES OF LIMIT ATION ARE NOT MEANT TO DESTROY THE RIGHTS OF THE PARTIES, RATHE R THE IDEA IS THAT EVERY LEGAL REMEDY MUST BE KEPT ALIVE FO R A LEGISLATIVELY FIXED PERIOD OF TIME. 14. RESPECTFULLY FOLLOWING THE ABOVE DECISIONS OF HON BLE APEX COURT AS WELL AS HONBLE ALLAHABAD HIGH COURT AND CONSIDERIN G THE FACTS OF THE ASSESSEES CASE, WE DEEM IT PROPER TO CONDONE THE DE LAY AND ADMIT THE CROSS-OBJECTIONS FOR HEARING ON MERITS. 15. THE GROUNDS RAISED IN BOTH THE CROSS-OBJECTIONS READ AS UNDER:- ITA-4788 & 4789/D/2003 & C.O. 344 & 345/D/2011 10 C.O. NO.344/DEL/2011:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE AUTHORITIES BELOW ERRED IN HOLDING T HAT THE BENEFIT OF CBDTS CIRCULAR NO.447 DATED 22.01.1986 WAS NOT AVAILABLE TO THE ASSESSEE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN CONFIRMING ADDITION IN SUM OF RS.5,14,275 ON ACCOUNT OF CRICKET EARNINGS. THE FINDINGS RETURNED BY THE REVENUE AUTHORITIES ARE MISCONCEIVED AND ERRONEOUS, AND MUST BE QUASHED, WITH DIRECTIONS OF APPROPRIATE RELIEF. C.O. NO.345/DEL/2011:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE AUTHORITIES BELOW ERRED IN HOLDING T HAT THE BENEFIT OF CBDTS CIRCULAR NO.447 DATED 22.01.1986 WAS NOT AVAILABLE TO THE ASSESSEE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN CONFIRMING ADDITION IN SUM OF RS.20,19,293 ON ACCOUNT OF CRICKET EARNINGS. THE FINDINGS RETURNED BY THE REVENUE AUTHORITIES ARE MISCONCEIVED AND ERRONEOUS, AND MUST BE QUASHED, WITH DIRECTIONS OF APPROPRIATE RELIEF. 16. AT THE TIME OF HEARING BEFORE US, IT IS STATED BY THE LEARNED COUNSEL THAT THE ASSESSING OFFICER HAD DENIED THE EXEMP TION AVAILABLE AS PER CBDT CIRCULAR NO.447 DATED 22.01.1986 ON THE ONLY GROUND THAT THE ASSESSEE IS PROFESSIONAL CRICKETER AND NOT AN AMATEUR CRICKETER. WHILE DOING SO, HE ALSO RELIED UPON THE DECISION OF AN OTHER CRICKETER SHRI AJAY JADEJA. IT IS STATED BY THE LEARNED COUNSEL THAT SUBSEQUENTLY, THE CASE OF SHRI AJAY JADEJA IS DECIDED IN ASSESSEES FAVO UR BY THE ITAT VIDE ORDER DATED 25 TH JULY, 2008 IN ITA NOS.4451 & 4452/DEL/2004, 1249/DEL/2002 AND C.O.NOS.44 & 45/DEL/2006. THAT SIM ILAR ISSUE IS ALSO DECIDED IN THE CASE OF SHRI MANOJ PRABHAKAR AND IN HIS CASE, THE SLP IS DISMISSED BY THE HONBLE APEX COURT. HE FURTHER SUBMITTED THAT ITA-4788 & 4789/D/2003 & C.O. 344 & 345/D/2011 11 EVEN IN ASSESSEES OWN CASE, IN ALL THE SUBSEQUENT YEARS, I. E., AY 1994- 95, 1995-96 AND 1999-2000, IN THE ORDER PASSED UNDER SECTION 143(3), THE REVENUE HAS ALLOWED THE BENEFIT OF ABOVE CIRCULA R ACCEPTING THE ASSESSEE TO BE AN AMATEUR CRICKETER. HE, THEREFORE, SUB MITTED THAT THE ADDITION MADE BY THE ASSESSING OFFICER MAY BE DELETED. 17. LEARNED DR, ON THE OTHER HAND, RELIED UPON THE ORDERS OF AUTHORITIES BELOW. 18. WE FIND THAT THE IDENTICAL ISSUE CAME UP FOR CONSI DERATION IN ASSESSEES OWN CASE FOR AY 1994-95 WHEREIN IN THE ORIGINA L ASSESSMENT, THE ASSESSING OFFICER DENIED THE EXEMPTION CLA IMED BY THE ASSESSEE ON THE CRICKET EARNING ON THE GROUND THAT THE ASSESSEE IS A PROFESSIONAL CRICKETER AND NOT AN AMATEUR. ON APPE AL BEFORE THE ITAT, THE ITAT, VIDE ORDER DATED 28 TH NOVEMBER, 2008 IN ITA NOS.3895, 3896 & 3897/DEL/2002, SET ASIDE THE MATTER TO THE FIL E OF THE ASSESSING OFFICER WITH THE FOLLOWING DIRECTION:- 5. WE HAVE CONSIDERED THE SUBMISSIONS OF THE REPRESENTATIVES OF BOTH THE PARTIES AND ORDERS OF AUTHORITIES BELOW. WE FIND SUBSTANCE IN THE SUBMISSION OF THE LD.AR AND IN THE INTEREST OF JUSTICE WE CONSIDER I T PRUDENT TO RESTORE THE MATTER TO THE ASSESSING OFFICER A FTER SETTING THE ORDERS OF AUTHORITIES BELOW WITH A DIRECTI ON TO DECIDE THE ISSUES DISPUTED BEFORE US AFTER CONSIDERING TH E ORDER OF TRIBUNAL IN THE CASE OF SHRI AJAY JADEJA DA TED 21 JULY 2008 (SUPRA) AND THE DOCUMENTS OF EXPENSES AS MAY BE PRODUCED BY THE ASSESSEE BEFORE HIM. NEEDLESS TO SAY THAT ASSESSING OFFICER WILL GIVE DUE OPPORTUNITY OF HE ARING TO THE ASSESSEE WHILE DECIDING THE ISSUES AFRESH. IN VIEW OF THE ABOVE ALL THE THREE APPEALS OF THE ASSESSEE ARE ALLO WED FOR STATISTICAL PURPOSES. 19. THEREAFTER, THE ASSESSING OFFICER, VIDE ORDER DATE D 1 ST DECEMBER, 2009, GAVE EFFECT TO THE ORDER OF THE ITAT WHEREIN THE ASSESSEES CLAIM ITA-4788 & 4789/D/2003 & C.O. 344 & 345/D/2011 12 WAS ACCEPTED. THE RELEVANT PORTION OF THE ASSESSMENT OR DER READS AS UNDER:- 3.3 THE HONBLE ITAT, ON FURTHER APPEAL, HAS DIRECT ED THE AO TO DECIDE THE ISSUE REGARDING THE ASSESSEE AS BEING AMATEUR OR PROFESSIONAL CRICKETER AFTER CONSIDERING TH E ORDER OF TRIBUNAL VIDE ITA NOS.4451/DEL/2004 & 4452/DEL/2004. ON CAREFUL READING OF THE ABOVE MENTIONED ORDER IT HAS BEEN NOTICED THAT THE HONBLE ITAT HAS NOT GIVEN ANY SPECIFIC DIRECTION WITH REGARD TO T HE APPLICABILITY OF INSTRUCTION NUMBER 1432 OF CBDT IN THE CASE OF AJAY JADEJA BUT HAS RESTORED THE MATTER BACK T O THE AO. HOWEVER, THE HONBLE ITAT HAS RELIED UPON THE DECISION OF BANGALORE BENCH OF ITAT IN THE CASE OF G. R. VISHWNATH (29 ITD 142) AND THE DECISION OF DELHI BENC H OF ITAT IN THE CASE OF SRI MANOJ PRABHAKAR IN ITA NO.56 4 & OTHERS/DEL/2004 WHEREIN IT WAS HELD THAT THERE WAS NO MATERIAL IN THE POSSESSION OF THE AO TO ARRIVE AT A FI NDING THAT THE ASSESSEE WAS A PROFESSIONAL CRICKETER NOT ENTITLE D FOR THE BENEFIT OF CIRCULAR NO.447 DATED 22.01.1986 . 3.4 BASED ON THE OPINION HELD BY HONBLE ITAT IN THE CASE OF SH. AJAY JADEJA WHEREIN IT IS HELD THAT THE ASSESSEE WAS ENTITLED FOR EXEMPTION IN RESPECT OF AWARD MONEY AS PER CIRCULAR NUMBER 447 DATED 22.01.1986, THE SAME TREATMENT IS BEING DONE IN THE PRESENT CASE OF SH. KAP IL DEV. ACCORDINGLY, THE AMOUNT OF RS.18,24,198/- WHIC H WAS TREATED AS TAXABLE BY THE AO IN THE ORIGINAL ASSESSMENT IS CONSIDERED AS EXEMPT AS PER CIRCULAR NO. 447 OF CBDT BEING THE AWARDS AND GIFTS RECEIVED BY THE ASSESSEE. FURTHER, THE SAME RATIO IS APPLIED IN THE CASE OF INCO ME RECEIPT FROM TEST MATCHES AS PER CIRCULAR NO.1432 OF C BDT AND ONLY 75% OF RS.538,546/- (AFTER REDUCING THE CONTRIBUTION TO PLAYERS BENEVOLENT FUND) AMOUNTING TO RS.403909/- IS CONSIDERED AS EXEMPT AND RS.134,637/- CONSIDERED AS TAXABLE PROFESSIONAL INCOME. 20. SIMILAR VIEW WAS TAKEN BY THE ASSESSING OFFICER IN A Y 1995-96 AS WELL AS 1999-2000. THUS, WHEN IN THE SUBSEQUENT YEAR T HE ASSESSING OFFICER HIMSELF HAS ACCEPTED THAT THE ASSESSEE IS AN AMATE UR CRICKETER AND NOT A PROFESSIONAL CRICKETER, THERE COULD BE NO J USTIFICATION TO HOLD THAT DURING THE ACCOUNTING YEAR RELEVANT TO AY 1992 -93 AND 1993-94, ITA-4788 & 4789/D/2003 & C.O. 344 & 345/D/2011 13 THE ASSESSEE WAS A PROFESSIONAL CRICKETER. THAT IN THE CA SE OF OTHER CRICKETERS WHO ALSO PLAYED FOR INDIAN CRICKET TEAM, VIZ., SHRI AJAY JADEJA AND SHRI MANOJ PRABHAKAR, THE APPELLATE AUTH ORITIES AND THE HONBLE COURTS HAVE DECIDED THE ISSUE IN FAVOUR OF TH E ASSESSEE, HOWEVER, THE DETAILS OF WHICH IS ALREADY DISCUSSED BY TH E ASSESSING OFFICER IN HIS ORDER FOR AY 1994-95, THEREFORE, THE SAME IS NOT BEING DISCUSSED AGAIN FOR THE SAKE OF BREVITY. IN VIEW OF TH E TOTALITY OF ABOVE FACTS, WE DIRECT THE ASSESSING OFFICER TO ALLOW EXEMPTIO N TO THE ASSESSEE WHICH IS AVAILABLE AS PER BOARDS CIRCULARS TO THE AMATEUR CRICKETERS. 21. IN THE RESULT, THE APPEALS OF THE REVENUE AS WELL AS THE CROSS- OBJECTIONS OF THE ASSESSEE ARE ALLOWED. DECISION PRONOUNCED IN THE OPEN COURT ON 28 TH JUNE, 2013. SD/- SD/- ( (( (CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG) )) ) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 28.06.2013 VK. COPY FORWARDED TO: - 1. REVENUE : ASSISTANT COMMISSIONER OF INCOME TA X, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE- -- -9, NEW DELHI. 9, NEW DELHI. 9, NEW DELHI. 9, NEW DELHI. 2. ASSESSEE : SHRI KAPIL DEV, SHRI KAPIL DEV, SHRI KAPIL DEV, SHRI KAPIL DEV, 39, SUNDER NAGAR, NEW DELHI. 39, SUNDER NAGAR, NEW DELHI. 39, SUNDER NAGAR, NEW DELHI. 39, SUNDER NAGAR, NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR