Shri Yashaspati Agarwal, Faizabad V. Income Tax Officer, Faizabad

ITA 203/LKW/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7632 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 30-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SIGNED
• Keywords: Charitable institution; Period of limitation; Reasonable cause; Condonation of delay
• Section: 143(3); 80IB; 154

Judgement Text

I.T.A. NO.202 & 203/LKW/2017 ASSESSMENT YEAR:2007-08 & 08-09 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH SMC, LUCKNOW BEFORE SHRI T. S. KAPOOR, ACCOUNTANT MEMBER I.T.A. NO.202 & 203/LKW/2017 ASSESSMENT YEAR:2007-08 & 08-09 SHRI YASHASPATI AGARWAL, PROP. M/S PIONEER TRADERS, CHOWK, FAIABAD. PAN:ABLPA 0590 P VS. INCOME TAX OFFICER, RANGE-II, FAIZABAD. (APPELLANT) (RESPONDENT) O R D E R THESE TWO APPEALS HAVE BEEN FILED BY THE ASSESSEE AGAINST THE SEPARATE ORDERS OF LEARNED CIT(A)-I, LUCKNOW DATED 25/08/2014 AND 11/06/2012 RESPECTIVELY PERTAINING TO ASSESSMENT YE AR 2007-2008 AND 2008-09. 2. AT THE OUTSET, LEARNED A. R. INVITED OUR ATTENTI ON TO PETITION FOR CONDONATION OF DELAY AND SUBMITTED THAT THERE IS DE LAY IN FILING THE APPEAL OF 872 DAYS IN I.T.A. NO.202 AND 1662 DAYS IN I.T.A. N O.203. EXPLAINING THE REASONS FOR DELAY IN FILING THE APPEALS, LEARNED A. R. INVITED OUR ATTENTION TO THE COPY OF AFFIDAVITS DULY SWORN IN AND SIGNED BY THE ASSESSEE INCLUDING THE REASONS FOR DELAY. LEARNED A. R. INVITED OUR ATTEN TION TO A DETAILED REQUEST FOR CONDONATION OF DELAY AND SUBMITTED THAT DURING ASSESSMENT YEAR 2007- 08 THE ASSESSING OFFICER PASSED ORDER U/S 143(3) AN D MADE AN ADDITION OF APPELLANT BY SHRI K. R. RASTOGI, C. A. RESPONDENT BY S HRI C. K. SINGH, D.R. DATE OF HEARING 09/01/2019 DATE OF PRONOUNCEMENT 11/01/2019 I.T.A. NO.202 & 203/LKW/2017 ASSESSMENT YEAR:2007-08 & 08-09 2 RS.3,84,312/- AS UNEXPLAINED INCOME AND ON AN APPEA L BEFORE CIT(A), THE CIT(A) DISMISSED THE APPEAL AND THE SAID ORDER WAS RECEIVED BY THE ASSESSEE ON 10/09/2014. IT WAS SUBMITTED THAT THE ASSESSEE BEING OLD AND UNEDUCATED PERSON DID NOT KNOW THE TECHNICALITIES O F INCOME TAX PROCEEDINGS AND ON AN ADVICE OF HIS COUNSEL HE FILE D APPLICATION U/S 154 BEFORE INCOME TAX OFFICER AND INCOME TAX OFFICER, F AIZABAD DISMISSED THE APPLICATION BY PASSING A DETAILED ORDER DATED 27/03 /2015. IT WAS SUBMITTED THAT AGAIN ON THE ADVICE OF THE COUNSEL THE ASSESSE E FILED APPEAL BEFORE LEARNED CIT(A) WHICH WAS PENDING BEFORE HIM. IT WA S FURTHER SUBMITTED THAT THE ASSESSING OFFICER WAS PRESSING HARD FOR DE POSIT OF DEMAND AND ON AN ADVICE GIVEN BY THE PRESENT COUNSEL THE ASSESSEE WAS ADVISED TO FILE APPEAL BEFORE THE TRIBUNAL AND THAT IS WHY THE DELA Y IN FILING THE APPEALS HAD OCCURRED. LEARNED A. R. INVITED OUR ATTENTION TO AN ORDER OF COCHIN BENCH OF THE TRIBUNAL WHERE HON'BLE TRIBUNAL VIDE O RDER DATED 25/06/2018 HAD HELD THAT WHERE THE DELAY IN FILING THE APPEAL HAD OCCURRED DUE TO WRONG ADVICE BY THE COUNSEL, THE DELAY SHOULD BE CO NDONED. INVITING OUR ATTENTION TO THE FACTS OF THE CASE, LEARNED A. R. S UBMITTED THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF SELLING SIM CARDS AND DURING THE YEAR UNDER CONSIDERATION RECEIVED FREE COUPONS FROM THE IDEA T ELEPHONE COMPANY. IT WAS SUBMITTED THAT THE FREE COUPONS WERE TO BE DIST RIBUTED AMONG THE RETAILERS AND ASSESSEE WAS NOT TO EARN ANY INCOME O UT OF THIS. IT WAS SUBMITTED THAT IDEA COMPANY HAD DEDUCTED TDS ON THE SE FREE COUPONS AND CREDIT OF TDS WAS TAKEN BY THE ASSESSEE BUT SINCE T HE COUPONS WERE TO BE DISTRIBUTED FREE OF COST, THERE WAS NO ELEMENT OF P ROFIT ON THESE TRANSACTIONS. FURTHER IT WAS SUBMITTED THAT THE CR EDIT OF SUCH FREE COUPONS WAS TAKEN IN THE LEDGER ACCOUNTS IN THE SUBSEQUENT YEAR AND OUR ATTENTION WAS INVITED TO PAGE 7 OF THE PAPER BOOK WHERE THE I NCOME WAS CREDITED IN THE SIM RECHARGED UNDER SALE PROMOTION ACCOUNT. IT WAS SUBMITTED THAT SIMILARLY IN THE SUCCEEDING YEAR I.E. ASSESSMENT YE AR 2008-09 THE INCOME I.T.A. NO.202 & 203/LKW/2017 ASSESSMENT YEAR:2007-08 & 08-09 3 WAS CREDITED IN THE SIMILAR ACCOUNT AND OUR ATTENTI ON WAS INVITED TO PAGE 10 OF THE PAPER BOOK. LEARNED A. R. SUBMITTED THAT TH E ONLY REASON FOR MAKING ADDITION IN THESE YEARS IS THAT THE ASSESSEE HAD NO T DECLARED THE SAME IN ITS PROFIT & LOSS ACCOUNT IN THE RESPECTIVE YEAR WHEREA S IN FORM-26 AS THESE WERE REFLECTED AS RECEIPTS OF THE ASSESSEE. LEARN ED A. R. SUBMITTED THAT IN SUBSEQUENT YEAR THE ASSESSEE HAD DULY DISCLOSED THE INCOMES AND THEREFORE, THERE IS NO LOSS TO THE REVENUE. IT WAS SUBMITTED THAT THOUGH THE ASSESSEE WAS FOLLOWING MERCANTILE SYSTEM OF ACCOUNTING BUT T HESE INCOMES HAD ALWAYS BEEN DECLARED IN THE SUCCEEDING YEARS. LEAR NED A. R. RELIED ON THE ORDER OF HON'BLE SUPREME COURT IN THE CASE OF SUTLE J COTTON MILLS LIMITED VS. CIT 116 ITR 1 (SC) FOR THE PROPOSITION THAT WHERE T HE ENTRIES ARE MADE BY THE ASSESSEE IN ITS BOOKS OF ACCOUNT WHICH ARE NOT IN CONFORMITY WITH THE PRINCIPLES OF ACCOUNTANCY, THAT DOES NOT MEAN THAT HE HAS CONCEALED PROFIT. LEARNED A. R. FURTHER RELIED ON A JUDGMENT OF HON'B LE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. U.P. ELECTRONICS CORPORATION LTD. 282 ITR 428 WHERE HON'BLE ALLAHABAD HIGH COURT HAS HELD THAT NOT MAKI NG THE ENTRIES IN THE BOOKS OF ACCOUNT WOULD NOT DISENTITLE CLAIM OF DEDU CTION FOR AMOUNT OF INTEREST PAYABLE ON LOANS WHICH ACCRUED DURING THE YEAR UNDER CONSIDERATION. LEARNED A. R. FURTHER ARGUED THAT I F THE ADDITION HAS BEEN MADE BY TAKING THE VALUE OF FREE COUPONS ON ACCRUAL BASIS THEN EXPENSES ON THE ACCRUAL BASIS OF SIMILAR AMOUNT SHOULD HAVE BEE N ALLOWED BY THE AUTHORITIES BELOW AS THE ASSESSEE HAD NO ELEMENT OF PROFIT IN THESE COUPONS. 3. LEARNED D. R., ON THE OTHER HAND, SUPPORTED THE ORDERS OF AUTHORITIES BELOW. 4. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE T HROUGH THE MATERIAL PLACED ON RECORD. I FIRST DEAL WITH THE ISSUE OF C ONDONATION OF DELAY. I FIND THAT ASSESSEE WAS PREVENTED FOR FILING THE APPEAL W ITHIN PRESCRIBED PERIOD OF TIME BECAUSE OF THE WRONG ADVISE OF THE COUNSEL WHE REBY THE ORDER OF I.T.A. NO.202 & 203/LKW/2017 ASSESSMENT YEAR:2007-08 & 08-09 4 LEARNED CIT(A) WAS NOT CHALLENGED BEFORE THE TRIBUN AL BUT IT WAS CHALLENGED BY FILING APPLICATION U/S 154 OF THE ACT. THE ASSE SSING OFFICER HAS PASSED ORDER U/S 154 ON 27/03/2015 AND AGAINST THE ORDER O F ASSESSING OFFICER ASSESSEE AGAIN FILED APPEAL BEFORE LEARNED CIT(A) A GAIN ON THE WRONG ADVICE. THEREFORE, THERE WAS SUFFICIENT REASON FOR DELAY IN FILING THE APPEALS. HON'BLE TRIBUNAL IN THE CASE OF MIDAS PLOY MER COMPOUNDS PVT. LTD. VS. ACIT HAS DEALT THE ISSUE IN A CASE WHERE THE DE LAY OCCURRED DUE TO WRONG ADVICE OF A COUNSEL AND HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY HOLDING AS UNDER: 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE RECORD. THERE WAS A DELAY OF 2819 DAYS IN FILING TH E APPEAL BEFORE THE TRIBUNAL. THE ASSESSEE HAS STATED THE RE ASONS IN THE CONDONATION PETITION ACCOMPANIED BY AN AFFIDAVIT WH ICH HAS BEEN CITED IN THE EARLIER PARA. THE ASSESSEE FILED AN AFFIDAVIT EXPLAINING THE REASONS AND PRAYED FOR CONDONATION O F DELAY. THE REASON STATED BY THE ASSESSEE IS DUE TO INADVER TENT OMISSION ON THE PART OF SHRI UNNIKRISHNAN NAIR N, C A IN TAKING APPROPRIATE ACTION TO FILE THE APPEAL. HE HAD A MIS TAKEN BELIEF THAT THE APPEAL FOR THIS YEAR WAS FILED BY THE ASSE SSEE AS THERE WAS SEPARATE COUNSEL TO TAKE STEPS TO FILE THIS APP EAL BEFORE THE ITAT. THEREFORE, WE HAVE TO CONSIDER WHETHER THE CO UNSELS FAILURE IS SUFFICIENT CAUSE FOR CONDONING THE DELAY . THE MADRAS HIGH COURT CONSIDERED AN IDENTICAL ISSUE IN THE CAS E OF SREENIVAS CHARITABLE TRUST V. DY. CIT (280 ITR 357) AND HELD THAT MIXING UP OF PAPERS WITH OTHER PAPERS ARE SUFF ICIENT CAUSE FOR NOT FILING THE APPEAL IN TIME. THE MADRAS HIGH COURT FURTHER OBSERVED THAT THE EXPRESSION 'SUFFICIENT CAUSE' SHO ULD BE INTERPRETED TO ADVANCE SUBSTANTIAL JUSTICE. THEREFO RE, ADVANCEMENT OF SUBSTANTIAL JUSTICE IS THE PRIME FAC TOR WHILE CONSIDERING THE REASONS FOR CONDONING THE DELAY. 6.1 ON MERIT THE ISSUE IS IN FAVOUR OF THE ASSESSEE . BUT THERE IS A TECHNICAL DEFECT IN THE APPEAL SINCE THE APPEAL W AS NOT FILED WITHIN THE PERIOD OF LIMITATION. THE ASSESSEE FILED AN AFFIDAVIT SAYING THAT THE APPEAL WAS NOT FILED BECAUSE OF THE COUNSELS INABILITY TO FILE THE APPEAL. THE REVENUE HAS NOT F ILED ANY COUNTER AFFIDAVIT TO DENY THE ALLEGATION MADE BY TH E ASSESSEE. WHILE CONSIDERING A SIMILAR ISSUE THE APEX COURT IN THE CASE OF I.T.A. NO.202 & 203/LKW/2017 ASSESSMENT YEAR:2007-08 & 08-09 5 COLLECTOR, LAND ACQUISITION V. MST. KATIJI AND I.T. A. NO.288/C/2017 9 ORS. (167 ITR 471) LAID DOWN SIX PR INCIPLES. FOR THE PURPOSE OF CONVENIENCE, THE PRINCIPLES LAID DOWN BY THE APEX COURT ARE REPRODUCED HEREUNDER: (1) ORDINARILY, A LITIGANT DOES NOT STAND TO BENEFI T BY LODGING AN APPEAL LATE. (2) REFUSING TO CONDONE DELAY CAN RESULT IN A MERIT ORIOUS MATTER BEING THROWN AT THE VERY THRESHOLD AND CAUSE OF JUSTICE BEING DEFEATED. AS AGAINST THIS, WHEN DELAY IS CONDONED, THE HIGHEST THAT CAN HAPPEN IS THAT A CAU SE WOULD BE DECIDED ON MERITS AFTER HEARING THE PARTIE S. (3) 'EVERY DAY'S DELAY MUST BE EXPLAINED' DOES NOT MEAN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EV ERY HOUR'S DELAY, EVERY SECOND'S DELAY? THE DOCTRINE MU ST BE APPLIED IN A RATIONAL, COMMONSENSE AND PRAGMATIC MANNER. (4) WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDER ATION ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTAN TIAL JUSTICE DESERVES TO BE PREFERRED, FOR THE OTHER SID E CANNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NONDELIBERATE DELAY. (5) THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONE D 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 R ISK. (6) IT MUST BE GRASPED THAT THE JUDICIARY IS RESPEC TED NOT ON ACCOUNT OF ITS POWER TO LEGALISE INJUSTICE ON TE CHNICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUS TICE AND IS EXPECTED TO DO SO. 6.2 WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDER ATION ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED, FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT FOR INJUSTICE BEING DONE BECAUSE OF NONDELIBERATE DELAY. IN THE CASE ON OUR HAND, THE I SSUE ON MERIT REGARDING ALLOWABILITY OF DEDUCTION U/S. 80IB OF THE ACT WAS COVERED IN FAVOUR OF THE ASSESSEE BY THE BINDIN G JUDGMENT OF THE JURISDICTIONAL HIGH COURT. MOREOVER, NO COUN TER-AFFIDAVIT WAS FILED BY THE REVENUE DENYING THE ALLEGATION MAD E BY THE ASSESSEE. IT IS NOT THE CASE OF THE REVENUE THAT TH E APPEAL WAS NOT FILED DELIBERATELY. THEREFORE, WE HAVE TO PREFE R SUBSTANTIAL JUSTICE RATHER THAN TECHNICALITY IN DECIDING THE IS SUE. AS I.T.A. NO.202 & 203/LKW/2017 ASSESSMENT YEAR:2007-08 & 08-09 6 OBSERVED BY APEX COURT, IF THE APPLICATION OF THE A SSESSEE 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, TH IS TRIBUNAL IS BOUND TO REMOVE THE INJUSTICE BY CONDONING THE DELA Y ON TECHNICALITIES. IF THE DELAY IS NOT CONDONED, IT WO ULD AMOUNT TO LEGALISING AN ILLEGAL ORDER WHICH WOULD RESULT IN U NJUST ENRICHMENT ON THE PART OF THE STATE BY RETAINING TH E TAX RELATABLE THERETO. UNDER THE SCHEME OF CONSTITUTION , THE GOVERNMENT CANNOT RETAIN EVEN A SINGLE PIE OF THE I NDIVIDUAL CITIZEN AS TAX, WHEN IT IS NOT AUTHORISED BY AN AUT HORITY 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 THE SUBSTANTIAL JUSTICE, THE DELAY OF 2819 DAYS HAS TO BE CONDONED. 6.3 THE NEXT QUESTION MAY ARISE WHETHER 2819 DAYS W AS EXCESSIVE OR INORDINATE. THERE IS NO QUESTION OF AN Y EXCESSIVE OR INORDINATE WHEN THE REASON STATED BY THE ASSESSE E WAS A REASONABLE CAUSE FOR NOT FILING THE APPEAL. WE HAVE TO SEE THE CAUSE FOR THE DELAY. WHEN THERE WAS A REASONABLE CA USE, THE PERIOD OF DELAY MAY NOT BE RELEVANT FACTOR. IN FACT , THE MADRAS HIGH COURT IN THE CASE OF CIT V. K.S.P. SHANMUGAVEL NADAI AND ORS. (153 ITR 596) CONSIDERED THE DELAY OF CONDONAT ION AND HELD THAT THERE WAS SUFFICIENT AND REASONABLE CAUSE ON THE PART OF THE ASSESSEE FOR NOT FILING THE APPEAL WITHIN TH E PERIOD OF LIMITATION. ACCORDINGLY, THE MADRAS HIGH COURT COND ONED NEARLY 21 YEARS OF DELAY IN FILING THE APPEAL. WHEN COMPAR ED TO 21 YEARS, 2819 DAYS CANNOT BE CONSIDERED TO BE INORDIN ATE OR EXCESSIVE. FURTHERMORE, THE CHENNAI TRIBUNAL BY MAJ ORITY OPINION IN THE CASE OF PEOPLE EDUCATION AND ECONOMI C DEVELOPMENT SOCIETY (PEEDS) V. ITO (100 ITD 87) (CH ENNAI) (TM ) CONDONED MORE THAN SIX HUNDRED DAYS DELAY. IT IS PERTINENT TO MENTION HEREIN THAT THE VIEW TAKEN BY THE PRESENT AUTHOR IN THAT CASE WAS OVERRULED BY THE THIRD MEMB ER. 6.4 THE MADRAS HIGH COURT IN THE CASE OF SREENIVAS CHARITABLE TRUST (SUPRA) HELD THAT NO HARD AND FAST RULE CAN B E LAID DOWN IN THE MATTER OF CONDONATION OF DELAY AND THE COURT SHOULD ADOPT A PRAGMATIC APPROACH AND THE COURT SHOULD EXE RCISE THEIR DISCRETION ON THE FACTS OF EACH CASE KEEPING IN MIN D THAT IN CONSTRUING THE EXPRESSION 'SUFFICIENT CAUSE' THE PR INCIPLE OF I.T.A. NO.202 & 203/LKW/2017 ASSESSMENT YEAR:2007-08 & 08-09 7 ADVANCING SUBSTANTIAL JUSTICE IS OF PRIME IMPORTANC E AND THE EXPRESSION 'SUFFICIENT CAUSE' SHOULD RECEIVE A LIBE RAL CONSTRUCTION. THEREFORE, THIS JUDGMENT OF THE MADRA S HIGH COURT (SUPRA) CLEARLY SAYS THAT IN ORDER TO ADVANCE SUBSTANTIAL JUSTICE WHICH IS OF PRIME IMPORTANCE, THE EXPRESSIO N 'SUFFICIENT CAUSE' SHOULD RECEIVE A LIBERAL CONSTRUCTION. IN TH IS CASE, THE ISSUE ON MERIT REGARDING GRANTING OF DEDUCTION U/S. 80IB WAS COVERED IN FAVOUR OF THE ASSESSEE BY THE JUDGMENT O F THE JURISDICTIONAL HIGH COURT. THEREFORE, FOR THE PURPO SE OF ADVANCING SUBSTANTIAL JUSTICE WHICH IS OF PRIME IMP ORTANCE IN THE ADMINISTRATION OF JUSTICE, THE EXPRESSION 'SUFF ICIENT CAUSE' SHOULD RECEIVE A LIBERAL CONSTRUCTION. IN OUR OPINI ON, THIS JUDGMENT OF THE JURISDICTIONAL HIGH COURT IS ALSO S QUARELY APPLICABLE TO THE FACTS OF THIS CASE. A SIMILAR VIE W WAS TAKEN BY THE MADRAS HIGH COURT IN THE CASE OF VENKATADRI TRA DERS LTD. V. CIT (2001) 168 CTR (MAD) 81 : (2001) 118 TAXMAN 622 (MAD). 6.5 THE MUMBAI BENCH OF THIS TRIBUNAL IN THE CASE O F BAJAJ HINDUSTHAN LTD. V. JT. CIT (AT) (277 ITR 1) HAS CON DONED THE DELAY OF 180 DAYS WHEN THE APPEAL WAS FILED AFTER T HE PRONOUNCEMENT OF THE JUDGMENT OF THE APEX COURT. FURTHERMORE, THE REVENUE HAS NOT FILED ANY COUNTER- AFFIDAVIT OPPOSING THE APPLICATION OF THE ASSESSEE FOR CONDON ATION OF DELAY. THE APEX COURT IN THE CASE OF MRS. SANDHYA R ANI SARKAR VS. SMT. SUDHA RANI DEBI (AIR 1978 SC 537) HELD THA T 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-AF FIDAVIT OPPOSING THE APPLICATION OF THE ASSESSEE, THEREFORE , AS HELD BY THE APEX COURT, THERE IS SUFFICIENT CAUSE FOR CONDO NATION OF DELAY. THE SUPREME COURT OBSERVED THAT WHEN THE DEL AY 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 SUFFIC IENT CAUSE. THE APEX COURT DID NOT SAY THAT LONGER PERIO D OF DELAY SHOULD NOT BE CONDONED. CONDONATION OF DELAY IS THE DISCRETION OF THE COURT/TRIBUNAL. THEREFORE, IT WOULD DEPEND U PON THE FACTS OF EACH CASE. IN OUR OPINION, WHEN THERE IS S UFFICIENT CAUSE FOR NOT FILING THE APPEAL WITHIN THE PERIOD O F LIMITATION, THE DELAY HAS TO BE CONDONED IRRESPECTIVE OF THE DURATION/PERIOD. IN THIS CASE, THE NON-FILING OF AN AFFIDAVIT BY THE REVENUE FOR OPPOSING THE CONDONATION OF DELAY I TSELF IS SUFFICIENT FOR CONDONING THE DELAY OF 2819 DAYS. I.T.A. NO.202 & 203/LKW/2017 ASSESSMENT YEAR:2007-08 & 08-09 8 6.6 IN CASE THE DELAY WAS NOT CONDONED, IT WOULD A MOUNT TO LEGALISE AN ILLEGAL AND UNCONSTITUTIONAL ORDER. THE POWER GIVEN TO THE TRIBUNAL IS NOT TO LEGALISE AN INJUSTICE ON TECHNICAL GROUND BUT TO DO SUBSTANTIAL JUSTICE BY REMOVING TH E INJUSTICE. THE PARLIAMENT CONFERRED POWER ON THIS TRIBUNAL WIT H THE INTENTION THAT THIS TRIBUNAL WOULD DELIVER JUSTICE RATHER THAN LEGALISE INJUSTICE ON TECHNICALITIES. THEREFORE, WH EN THIS TRIBUNAL WAS EMPOWERED AND CAPABLE OF REMOVING INJUSTICE, IN OUR OPINION, THE DELAY OF 2819 DAYS HAS TO BE CONDONED AND THE APPEAL OF THE ASSESSEE HAS TO BE ADMITTED AND DISPO SED OF ON MERIT. 6.7 . IN VIEW OF THE ABOVE, WE CONDONE THE DELAY OF 2819 DAYS IN FILING THE APPEAL AND ADMIT THE APPEAL FOR ADJUD ICATION. I FIND THAT IN THE PRESENT CASES ALSO THE DELAY HAD OCCURRED BECAUSE OF THE WRONG ADVICE OF THE COUNSEL THEREFORE, THE DELAY IN FILING THE APPEAL IS CONDONED AND THE APPEAL WAS ADMITTED FOR ADJUDICATI ON ON MERITS. 4.1 I FIND THAT DURING THE ASSESSMENT PROCEEDINGS T HE ADDITION OF RS.3,84,312/- WAS MADE BY THE ASSESSING OFFICER AS THE ASSESSING OFFICER HAD OBSERVED THAT SUCH PAYMENT WAS REFLECTED IN FOR M-26 AS AND ASSESSEE HAD CLAIMED TDS OF RS.21,559/-. THE ASSESSING OFFI CER HAD MADE THIS ADDITION AS HE HELD THAT DURING ASSESSMENT YEAR 200 7-08 THE ASSESSEE HAD ALREADY CLAIMED TDS BUT THE CORRESPONDING RECEIPT W AS NOT INCORPORATED IN THE INCOME. THE LEARNED CIT(A) ALSO UPHELD THE ADD ITION. THE LEARNED CIT(A) HAS HELD THAT THE DEDUCTOR IDEA HAD DULY DED UCTED TDS AND HAD ISSUED CREDIT NOTES IN FAVOUR OF THE ASSESSEE. THE LEARNED CIT(A) HOWEVER NOTED THAT THE ASSESSEE HAD DULY CLAIMED THE RECHAR GED COUPONS AS EXPENSES WHEN THESE WERE DISTRIBUTED BY HIM IN THE NEXT YEAR. THE LEARNED CIT(A), IN HIS FINDINGS, HAS IGNORED THE FACT THAT ASSESSEE, ON THE ONE HAD HAD CLAIMED EXPENSES IN THE NEXT YEAR AGAINST THE R ECHARGED COUPONS AND THEREFORE, THERE WAS NO WRONG ON THE PART OF THE AS SESSEE IN DECLARING THE CORRESPONDING INCOME IN THE NEXT YEAR. I FIND FROM THE COPY OF LEDGER I.T.A. NO.202 & 203/LKW/2017 ASSESSMENT YEAR:2007-08 & 08-09 9 ACCOUNT, PLACED AT PAGES 7 TO 25 OF THE PAPER BOOK, THAT ASSESSEE HAD CREDITED THE INCOME ON ACCOUNT OF COUPONS ON 04/04/ 2007 TO 05/04/2007 AND HAS ALSO CLAIMED FREE OF COST RECHARGED COUPONS AS EXPENSES. THE ENTRIES PASSED BY THE ASSESSEE IN THE SUCCEEDING YE AR RELATE TO RECORDING OF INCOME AS WELL AS EXPENSES. THE ACTION OF AUTHORIT IES BELOW BY TAKING ONLY THE INCOME ASPECT IN EARLIER YEAR AND NOT ALLOWING CORRESPONDING EXPENSES IN THE SAME YEAR IS NOT JUSTIFIED. THE ADDITION, I F SUSTAINED, WILL RESULT INTO DOUBLE ADDITION AS THE ASSESSEE HIMSELF DURING SUCC EEDING YEAR HAS CREDITED THE SAME AMOUNT IN THE BOOKS OF ACCOUNT AND THEREFO RE, THE ACTION OF AUTHORITIES BELOW IN MAKING AND SUSTAINING THE ADDI TION IN THE YEAR UNDER CONSIDERATION IS NOT JUSTIFIED. THEREFORE, I ALLOW THE APPEAL FILED BY THE ASSESSEE. 5. THE FACTS AND CIRCUMSTANCES IN I.T.A. NO.203 ARE SIMILAR AND IN THAT YEAR THE ASSESSEE HAD CREDITED THE INCOME OF COUPON S AND CORRESPONDING EXPENSES, AS AVAILABLE ON PAGE 10 OF THE PAPER BOOK , THEREFORE, FOLLOWING THE FINDINGS IN I.T.A. NO.202, I ALLOW THE APPEAL I N I.T.A. NO.203. 6. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE STAND ALLOWED. SD/. ( T. S. KAPOOR ) ACCOUNTANT MEMBER DATED:11/01/2019 *SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW