Devi Marine Food Exports P Ltd., CHENNAI V. ITO, CHENNAI

ITA 2167/CHNY/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 8042 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 04-02-2016
• Assessment Year: 1993-1994
• Appeal Filed On: 19-11-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P RADHAKRISHNAN IRS
• Assessee Lawyers: S SRIDHAR
• Keywords: Rectification of order; Period of limitation; Time period of passing order; Condonation of delay; Ignorance of law
• Section: 80HHC; 54; 154

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI , . ! ' , #'$ BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI G. PAVAN KUMAR, JUDICIAL MEMBER ./ I.T.A. NO. 2167/MDS/2015 # % &% / ASSESSMENT YEAR : 1993-94 M/S. DEVI MARINE FOOD EXPORTS P. LTD, 30, 28 TH CROSS STREET, INDIRA NAGAR, CHENNAI 600 020. VS. THE INCOME TAX OFFICER, COMPANY CIRCLE I(4) CHENNAI [PAN AAACD 1950D] ( / APPELLANT) ( /RESPONDENT) '( ) * / APPELLANT BY : SHRI. S. SRIDHAR, ADVOCATE +,'( ) * /RESPONDENT BY : SHRI. P. RADHAKRISHNAN, IRS, JCIT. ! ) - / DATE OF HEARING : 04-02-2016 ./& ) - / DATE OF PRONOUNCEMENT : 25-02-2016 / O R D E R PER G. PAVAN KUMAR, JUDICIAL MEMBER : THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AG AINST ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-1, CHEN NAI IN ITA NO.149/07-08, DT. 16.09.2015 FOR THE ASSESSMENT YEA R 1993-94. ITA NO. 2167/MDS/2015. :- 2 -: 2. THE ASSESSEE HAS RAISED GROUNDS AGAINST THE COMMIS SIONER OF INCOME TAX (APPEALS) ERRED IN NOT CONDONOING THE DELAY IN FILING THE APPEAL AND ALSO GENUINE REASONS WERE OVERLOOKED AND DISMISSED ON TECHNICAL GROUNDS. 3. THE BRIEF FACTS OF THE CASE THAT THE ASSESSEE IS IN THE BUSINESS OF EXPORT OF SEA FOODS. FOR THE ASSESSMEN T YEAR 1993-94 THE ASSESSEE FILED RETURN OF INCOME AND CLAIMED DEDUCTI ON U/S.80HHC OF THE ACT ;60,52,478/-. WHILE CLAIMING DEDUCTION THE ASSESSEE IGNORED NEGATIVE PROFITS FROM THE BUSINESS AND CLAIMED DEDU CTION ON 90% OF EXPORT INCENTIVE AND THE ASSESSMENT WAS COMPLETED U /S.143(3) OF THE ACT ON 27.03.2002, WERE THE LD. ASSESSING OFFICER CALCULATED DEDUCTION U/S.80HHC AS NIL FALLOWING THREE LIMBS OF PROVISION S. AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER, THE ASSESSEE PREFER RED AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). 4. THE COMMISSIONER OF INCOME TAX (APPEALS) BY ORDER D ATED 05.12.2002 OBSERVED THAT NETTING SHOULD NOT BE DONE AND CONFIRMED THE EXCLUSION OF 90% ADDITIONAL SALE CONSIDERATION. SUBSEQUENTLY, THE ASSESSING OFFICER GAVE EFFECT TO THE ORDER OF COMMI SSIONER OF INCOME TAX (APPEALS) IN CONSEQUENTIAL ORDER DATED 18.02.2 003 AND CALCULATED DEDUCTION U/S.80HHC OF THE ACT AT ;24,97,935/-. AG GRIEVED BY THE ITA NO. 2167/MDS/2015. :- 3 -: ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) DATED 05.12..2002 FILED APPEAL TO TRIBUNAL. 5. THE ASSESSEE ON THE ISSUE OF ADDITIONAL SALE CONSID ERATION PREFERRED AN APPEAL AND WAS ADJUDICATED BY THE TRIB UNAL IN ITA NOS.352 TO 356/2003, ORDER DATED 9.02.2004 AND GRAN TED RELIEF TO THE ASSESSEE. THE ASSESSING OFFICER PASSED CONSEQUENTI AL ORDER DATED 31.03.2004 TO GIVE RELIEF AS PER ITAT ORDER AND AL LOWED FURTHER DEDUCTION U/SEC.80HHC AMOUNTING TO ;35,54,543/- AND TOTAL AGGREGATE DEDUCTION U/SEC. 80HHC AMOUNTED TO ;60,52 ,478/-. 6. SIMILARLY, THE DEPARTMENT ALSO FILED AN APPEAL BEF ORE THE TRIBUNAL AGAINST THE ORDER OF COMMISSIONER OF INCOM E TAX (APPEALS). THE TRIBUNAL IN ITA NO.694 & 695/2003 DATED 07.07.2 006 HELD THAT LOSS FROM ONE LIMB OF THE BUSINESS SHOULD BE SET OF F AGAINST THE PROFIT FROM OTHER LIMB OF THE BUSINESS. WHILE GIVING EFFEC T TO THE ITAT ORDER, THE ASSESSING OFFICER PASSED REVISION ORDER ON 31.1 0.2006 WITH NOT COMPLYING THE DIRECTIONS OF THE TRIBUNAL AND RESTRI CTED DEDUCTION U/S.80HHC TO THE EXTENT OF ;27,19,344/- ONLY. THE APPEAL IN DISPUTE IS OF THE ORDER OF THE LD. AO DATED 31.10.2006 GIVING EFFECT TO THE DIRECTION OF TRIBUNAL IN ITA NO.694 AND 695/2003, DATED 07.07.2006. AGGRIEVED BY THE ABOVE ORDER, THE ASSESSEE PREFERRE D AN APPEAL AND RAISED THE GROUNDS BEFORE THE COMMISSIONER OF INCOM E TAX (APPEALS) ITA NO. 2167/MDS/2015. :- 4 -: AND ALSO FILED CONDONATION PETITION FOR DELAY. TH E LD. AR STATED THAT ORDER DATED 31.10.2006 WAS RECEIVED AND DUE TO REAS ONS BEYOND THE CONTROL OF THE ASSESSEE, THE APPEAL WAS FILED ON 10 .10.2007 WITH THE DELAY OF 309 DAYS. THE ASSESSEE HAS SUBMITTED THE GENUINE REASONS FOR DELAY IN FILING THE APPEAL BEFORE THE COMMISSIO NER OF INCOME TAX (APPEALS) AS UNDER:- AFFIDAVIT. I, ABDUL RAZZAK GANJ, SON OF ADAM BHAI GANJ, RESIDI NG AT PLOT NO.145, IST STREET, SANDEEP AVENUE, NEELANGARAI, C HENNAI 600 041, AGED ABOUT 62 YEARS AND RESIDING AT DO HEREBY SOLEMNLY AND SINCERELY AFFIRM AND STATE A S FOLLOWS:- I AM ONE OF THE DIRECTORS OF THE PETITIONER COMPAN Y AND AM WELL ACQUAINTED WITH THE FACTS OF THE CASE RELATING TO T HE ASSESSMENT YEAR 1993-94, COMPETENT TO SWEAR TO THIS AFFIDAVIT . I STATE THAT THE IMPUGNED ORDER DATED 30-10-2006 WA S RECEIVED IN OUR OFFICE AND IMMEDIATELY IT WAS SENT TO OUR LEGAL /ACCOUNTS DEPARTMENT FOR TAKING PROFESSIONAL CONSULTATION TO DECIDE THE FURTHER COURSE OF ACTION. I STATE THAT THE IMPUGNED ORDER WAS PASSED WHILE GIVING EFFECT TO THE ORDER OF THE INCO ME TAX APPELLATE TRIBUNAL DATED 7.7.2006. I STATE THAT WHILE GIVING EFFECT TO THE ORDER OF TH E APPELLATE TRIBUNAL, THE DEDUCTION U/S.80 HHC OF THE ACT WAS A LLOWED TO THE EXTENT OF 27,19,344/- AS AGAINST 60,52,478/- INASMUCH AS THE PROPORTIONATE ENHANCEMENT OF THE EXPORT INCENTIVES RECEIVED CONSEQUENT TO THE EXPORTS ROUTED THROUGH EXPORT HOU SE WAS NOT GRANTED DUE TO OVERSIGHT AND MISTAKE BY THE ASSESSI NG OFFICER. I STATE THAT IN FACT WHILE GIVING EFFECT TO THE ORDER OF THE APPELLATE TRIBUNAL RENDERED WHILE DISPOSING OFF THE APPEAL PR EFERRED BY THE DEPARTMENT FOR THE VERY SAME ASSESSMENT YEAR, THE A SSESSING OFFICER ON 31-3-2004 HAD GRANTED THE DEDUCTION U/S. 80 HHC OF THE ACT TO THE EXTENT OF 60,52,478/-. I STATE THAT THE MISTAKE IN THE IMPUGNED ORDER BEIN G APPARENT FROM THE RECORD IT WAS PROFESSIONALLY ADVISED TO FILE A PETITION FOR ITA NO. 2167/MDS/2015. :- 5 -: RECTIFICATION IN TERMS OF SECTION 154 OF THE ACT AN D ACCORDINGLY. A PETITION WAS FILED BEFORE THE ASSESSING OFFICER POI NTING OUT THE MISTAKE COMMITTED ON 23-3-2007. HOWEVER, THE ASSESS ING OFFICER WHILE CONSIDERING THE RECTIFICATION PETITION HAD PA SSED AN ORDER ON 27-9-2007 RECEIVED ON 3-10-2007 AND WHEREIN IT WAS HELD THAT THE RECTIFICATION AS PRAYED FOR WAS NOT MAINTAINABLE FO R THE REASONS STATED THEREIN. I STATE THAT IMMEDIATELY AFTER TAKI NG PROFESSIONAL ADVICE THE PRESENT APPEAL WAS FILED AGAINST THE IMP UGNED ORDER BELATEDLY BY 309 DAYS AND FURTHER IT IS STATED THAT THE FILING OF THE APPEAL AGAINST THE IMPUGNED ORDER DATED 31-10-2006 WAS SUGGESTED PROFESSIONALLY IN VIEW OF THE FACT OF THE SCOPE OF THE APPEAL AGAINST THE RECTIFICATION ORDER DATED 27-9-2 007 WAS NARROW AND LIMITED. IN ANY EVENT, I STATE THAT PURSUING AN ALTERNATE REMEDY ENVISAGED IN THE ACT WOULD CONSTITUTE SUFFICIENT CA USE TO CONSIDER THE PRAYER FOR CONDONATION IN FAVOUR OF THE ASSESSEE. I STATE THAT THE PETITIONER COMPANY UNDER BONAFIDE CIRCUMSTANCES HAD APPROACHED THE ASSESSING OFFICER BY INVOKING THE R ECTIFICATION PROCEEDINGS IN VIEW OF THE MISTAKE IN THE CALCULATI ON OF DEDUCTION U/S.80HHC OF THE ACT WAS APPARENT FROM THE RECORD. I STATE THAT THE DECISION OF THE MADRAS HIGH COURT REPORTED IN 1 53 ITR 596 WOULD FORTIFY AND APPROVE THE STAND OF THE PETITION ER COMPANY HEREIN. UNDER THESE CIRCUMSTANCES, IT IS PRAYED THA T THE DELAY OF 309 DAYS IN FILING THE ABOVE APPEAL RELATING TO THE ASSESSMENT YEAR 1993-94 MAY BE CONDONED AND THE DECISION BE RE NDERED ON THE MERITS OF THE GROUNDS OF APPEAL FORMING PART OF THE STATUTORY FORM NO.35 IN THE INTEREST OF JUSTICE. IN THE APPELLATE PROCEEDINGS, THE COMMISSIONER OF I NCOME TAX (APPEALS) AFTER CONSIDERING THE FACTS AND REASONS F OR DELAY IN FILING THE APPEAL OBSERVED AT PARA 4 OF CIT ORDER AS UNDER:- I HAVE CAREFULLY CONSIDERED THE FACTS IN I ISSUE, T HE VIEW TAKEN BY THE AO, THE ARGUMENTS ADVANCED BY THE APPELLANT AND MATERIAL ON RECORD. THE ORDER APPEALE D AGAINST IS A GIVING EFFECT ORDER OF THE HON'BLE ITA T WITH REGARD TO DEDUCTION U/S 80HHC BY THE AO. THE APPELL ANT IS AN EXISTING ASSESSEE ENGAGED IN THE BUSINESS OF EXPORT OF SEA FOODS AND HAS BEEN CLAIMING DEDUCTION S U/S 80HHC HITHERTO. THE APPELLANT IS ALSO AGITATING ISSUES ITA NO. 2167/MDS/2015. :- 6 -: ARISING FROM THE CLAIM AND ON THE METHOD OF COMPUTA TIONS OF CLAIMS MADE BY IT U/S 80HHC IN VARIOUS FORUMS INCLUDING THE HON'BLE HIGH COURT. IT IS NO GAIN SAY ING THAT THE APPELLANT IS A ESTABLISHED BUSINESS HOUSE ENJO YING THE EMPLOYMENT AND PROFESSIONAL ADVICE OF COMPETENT PROFESSIONALS INCLUDING ACCOUNTANTS, LEGAL ADVISORS , TAX CONSULTANTS ETC. THE PLEA TAKEN BY THE APPELLANT TH AT THE DELAY WAS BONAFIDE CANNOT BE ACCEPTED. EVERY ASSESS EE IS DUTY BOUND TO KNOW THE PROVISIONS OF LAW AND TO THAT EXTENT IGNORANCE OF LAW IS NOT A GROUND FOR CONDONA TION OF DELAY AS HAS BEEN HELD BY THE JURISDICTIONAL COURT IS CIT V. INDIA GOSPEL FELLOWSHIP TRUST (MAD) 331 ITR 283. EVEN IN A CASE WHERE ,THERE IN INORDINATE DELAY THE ONUS IS ON THE PART OF THE ASSESSEE TO SHOW REASON FOR DELAY ON THE LAST DAY OF LIMITATION PERIOD AND THEREAFTER FOR EACH DAY OF DELAY AS HAS BEEN HELD BY THE HON'BLE APEX COURT IN RANKAK & OTHERS V, REWA COAL, FIELDS LTD AIR 1962 SC 361, MADHU DADHA V. ACIT (MAD) 317 ITR 458. IN THIS CASE THE APPELLANT HAS NOT DISCHARGED THIS ONU S EITHER. TO CONCLUDE THE APPELLANT ALSO FAILS THE TE ST THAT MADE IT OBLIGATORY ON THE APPELLANT TO HAVE ACTED W ITH REASONABLE DILIGENCE IN THE PROSECUTING OF HIS APPE AL AS HAS BEEN HELD IN BRIJ INDER SINGH V. KANSHI RAM AIR 1917 PC 156 AND M. LOGANATHAN V. CIT (MAD) 302 ITR 139. ON THE BASIS OF THE FOREGOING I AM OF THE CONS IDERED VIEW THAT THIS IS NOT A FIT CASE FOR CONDONATION OF DELAY OF 309 DAYS OF THE APPEAL. IN THE RESULT, THE APPEAL I S DISMISSED. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) RELIED ON THE JUDICIAL DECISIONS AND DISMISSED THE CONDONATION PETITION. ITA NO. 2167/MDS/2015. :- 7 -: 7. BEFORE US, THE LD. AUTHORISED REPRESENTATIVE OF THE ASSESSEE REITERATED HIS SUBMISSIONS MADE BEFORE THE ASSESSIN G OFFICER AND ALSO THE SUBMISSIONS MADE BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ON THE ISSUE OF DELAY IN FILING THE APPEA L AND ON MERITS. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT RECTIF ICATION 154 PETITION FILED BY THE ASSESSEE WAS DISMISSED BY ORDER DATED 27.09.2007. ON THE ISSUE OF SUBMISSION OF AUTHORISED REPRESENTATIVE ON DELAY. WE HIGHLIGHT THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF N. BALAKRISHNAN V. M. KRISHNAMURTHY, AIR 1998 SC 3222 OBSERVED AS UNDER :- '11. RULES OF LIMITATION ARE NOT MEANT TO DESTROY T HE RIGHT OF PARTIES. THEY ARE MEANT TO SEE THAT PARTIES DO NOT RESORT DILATORY TACTICS, BUT SEEK THEIR REMEDY PROMPTLY. THE OBJECT OF PROVIDING A LEGAL REMEDY IS TO REPAIR THE DAMAGE CAUSED BY RE ASON OF LEGAL INJURY. LAW OF LIMITATION FIXES A LIFE SPAN F OR SUCH LEGAL REMEDY FOR THE REDRESS OF THE LEGAL INJURY SO SUFFE RED. TIME IS PRECIOUS AND THE WASTED TIME WOULD NEVER REVISIT. D URING EFFLUX OF TIME NEWER CAUSES WOULD SPROUT UP NECESSITATING NEWER PERSONS TO SEEK LEGAL REMEDY BY APPROACHING THE COU RTS. SO A LIFE SPAN MUST BE FIXED FOR EACH REMEDY. UNENDING P ERIOD FOR LAUNDERING THE REMEDY MAY LEAD TO UNENDING UNCERTAI NTY AND CONSEQUENTIAL ANARCHY. LAW OF LIMITATION IS THUS FO UNDED ON PUBLIC POLICY. IT IS ENSHRINED IN THE MAXIM INTERES T REIPUBLICAE UP SIT F INIS LITIUM ( IT IS FOR THE GENERAL WELFAR E THAT A PERIOD BE PUT TO LITIGATION). RULES OF LIMITATION ARE NOT MEA NT TO DESTROY THE RIGHT OF THE PARTIES. THEY ARE MEANT TO SEE THA T PARTIES DO NOT RESORT TO DILATORY TACTICS BUT SEEK THEIR REMEDY PR OMPTLY. THE IDEA IS THAT EVERY LEGAL REMEDY MUST BE KEPT ALIVE FOR A LEGISLATIVELY FIXED PERIOD OF TIME. 12. A COURT KNOWS THAT REFUSAL TO CONDONE DELAY WOU LD RESULT IN FORECLOSING A SUITOR FROM PUTTING FORTH HIS CAUSE. THERE IS NO PRESUMPTION THAT DELAY IN APPROACHING THE COURT IS ALWAYS DELIBERATE. THIS COURT HAS HELD THAT THE WORDS 'SUF FICIENT CAUSE' UNDER SECTION 5 OF THE LIMITATION ACT SHOULD RECEIV E A LIBERAL ITA NO. 2167/MDS/2015. :- 8 -: CONSTRUCTION SO AS TO ADVANCE SUBSTANTIAL JUSTICE V IDE SHAKUNTALA DEVI JAIN V. KUNTAL KUMARI, AIR 1969 SC 575 AND STATE OF WEST BENGAL V. THE ADMINISTRATOR, HOWAH MUNICAPACITY, AIR 1972 SC 749.' FURTHER, WE REFER THE CASE OF STATE OF WEST BENGAL VS. ADMINISTRATOR, HOWRAH MUNICIPALITY, AIR 1972 SC 749, THE SUPREME C OURT HELD THAT EXPRESSION 'SUFFICIENT CAUSE' SHOULD RECEIVE A LIBE RAL CONSTRUCTION SO AS TO ADVANCE THE PURPOSE OF JUSTICE PARTICULARLY WHEN THERE IS NO MOTIVE BEHIND DELAY. THIS NECESSARILY IMPLIES THAT PARTIES MUST ACT BONAFIDELY, EXPEDITIOUSLY AND WITH DUE CARE. A CASUAL OR A NEGL IGENT LITIGANT WHO HAS ACTED WITH UTTER IRRESPONSIBLE ATTITUDE, CANNOT CLAIM THE CONDONATION OF DELAY IN LAW WHEN THE RIGHT HAS ACCR UED TO THE OTHER SIDE. THE EXPRESSION 'SUFFICIENT CAUSE' WILL ALWAYS HAVE RELEVANCY TO REASONABLENESS. THE ACTIONS WHICH CAN BE CONDONED B Y THE COURT SHOULD FALL WITHIN THE REALM OF NORMAL HUMAN CONDUC T OR NORMAL CONDUCT OF A LITIGANT. IT IS NEITHER EXPECTED NOR C AN IT BE A NORMAL CONDUCT OF A PUBLIC SERVANT OR A LITIGANT THAT THEY WOULD KEEP THE FILES UNMOVED, UNPROCESSED FOR MONTHS TOGETHER ON THEIR T ABLES. HOW THE POWER OF CONDONATION OF DELAY IS TO BE EXERCISED, H AS BEEN EXPLAINED BY THE APEX COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION V MST. KATIJI AND OTHERS- 167 ITR 471 (SC) AS UNDER:- ( PAGES 472 ). ' THE LEGISLATURE HAS CONFERRED THE POWER TO CONDON E DELAY BY ENACTING SECTION 51 OF THE LIMITATION ACT OF 1963 I N ORDER TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO PART IES BY DISPOSING OF MATTERS ON DE MERITS '. THE EXPRESSION 'SUFFICIENT ITA NO. 2167/MDS/2015. :- 9 -: CAUSE ' EMPLOYED BY THE LEGISLATURE IS ADEQUATELY E LASTIC TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SUB SERVES THE ENDS OF JUSTICE THAT BEING THE LIFE-PURPOSE OF THE EXISTENCE OF THE INSTITUTION OF COURTS. IT I S COMMON KNOWLEDGE THAT THE COURT HAS BEEN MAKING A JUSTIFIA BLY LIBERAL APPROACH IN MATTERS INSTITUTED IN THIS COURT. BUT T HE MESSAGE DOES NOT APPEAR TO HAVE PERCOLATED DOWN TO ALL THE OTHER COURTS IN THE HIERARCHY. AND SUCH A LIBERAL APPROACH IS AD OPTED ON PRINCIPLE AS IT IS REALIZED THAT: 1. ORDINARILY, A LITIGANT DOES NOT STAND TO BENEFI T BY LODGING AN APPEAL LATE. 2. REFUSING TO CONDONE DELAY CAN RESULT IN A MERITO RIOUS MATTER BEING THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTICE BEING DEFEATED. AS AGAINST THIS, WHEN DELAY IS COND ONED, THE HIGHEST THAT CAN HAPPEN IS THAT A CAUSE WOULDBE DEC IDED ON MERITS AFTER HEARING THE PARTIES. 1. ' ANY APPEAL OR ANY APPLICATION, OTHER THAN AN A PPLICATION UNDER ANY OF THE PROVISIONS OF ORDER XXI OF THE COD E OF CIVIL PROCEDURE, 1908, MAY BE ADMITTED AFTER THE PRESCRIB ED PERIOD IF THE APPELLANT OR THE APPLICANT SATISFIES THE COURT THAT HE HAD SUFFICIENT CAUSE FOR NOT PREFERRING THE APPEAL OR M AKING THE APPLICATION WITHIN SUCH PERIOD.' ( PAGE 473) 3. ' EVERY DAY'S DELAY MUST BE EXPLAIN ED' DOES NOT MEAN THAT PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOUR'S DELAY, EVERY SECOND'S DELAY? THE DOCTRINE MU ST BE APPLIED IN A RATIONAL, COMMON SENSE AND PRAGMATIC M ANNER. 4. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDER ATIONS 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 N ONDELIBERATE DELAY. 5. THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONED DELIBERATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE, OR ON ACCOUNT OF MALAFIDES. A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY. IN F ACT, HE RUNS SERIOUS RISK. 6. IT MUST BE GRASPED THAT THE JUDICIARY IS RESPEC TED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHN ICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO.' ITA NO. 2167/MDS/2015. :- 10 -: WE CONSIDERING THE FACTUAL ASPECTS OF THE CASE, THE DELAY IN FILING THE APPEAL WAS NOT A WONTON ACT AS SWORN IN THE AFFIDAV IT BY THE DIRECTOR OF THE ASSESSEE COMPANY THAT THEY WERE UNDER BONAFI DE BELIEF THAT SEC.154 PETITION WAS FILED AND THE ASSESSEE IS PRA YING REMEDY U/SEC154 WITH A HOPE THAT THE MATTER WILL BE SOLVE D BUT THE LD.ASSESSING OFFICER REJECTED PETITION FOR VARIOUS REASONS OBSERVED IN HIS ORDER AT PAGE NO.2. SUBSEQUENT TO THE REVISION ORDER DATED 31.10.2006 (GIVING EFFECT TO THE ORDER OF ITAT DATED 07.7.2006 ) RAISING A DEMAND OF ;54,91,561/- THE ASSESSEE PAID A SUM OF ;3,00,000/- ON 13.02.2007. SUBSEQUENTLY ON 23.03.2007, THE ASSESSEE HAS FILED A PETITION U/S.1 54 SEEKING TO RECTIFY THE INCORRECT COMPUTATION OF DED UCTION U/S.80HHC. IN VIEW OF THE FACT, THE COMPUTATION OF DEDUCTION U/S.80HHC IN THE REVISION ORDER WAS ON TH E LINES OF THE COMPUTATION MADE IN THE ORIGINAL ASSESSMENT ORDER (WHICH WAS NEVER CONTESTED IN 2 STAGES OF APPEAL) THE COMPUTATION SEEMS TO BE IN OR DER. FURTHER, IN VIEW OF THE REASONING AS BROUGHT OUT AB OVE, YOUR PETITION FOR REVISING THE REVISION ORDER DATED 31.10.2006 IS NOT MAINTAINABLE AND HENCE REJECTED . 8. WE AS A QUASI JUDICIAL BODY DRAW SUPPORT FROM THE D ECISION OF SUPREME COURT IN THE CASE OF MELA RAM & SONS VS. CIT 29 ITR 607 AND WE FOUND THERE IS SUFFICIENT CAUSE CONSIDERING THE FACTUAL CIRCUMSTANCES IN THE INTEREST OF JUSTICE, WE DIRECT THE COMMISSIONER OF INCOME TAX (APPEALS) TO CONDONE THE DELAY AND ADMIT THE APPEAL AND ITA NO. 2167/MDS/2015. :- 11 -: ADJUDICATE THE GROUNDS ON MERITS AFTER GIVING ADEQU ATE OPPORTUNITY OF HEARING TO THE ASSESSEE. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON THURSDAY, THE 25TH DAY OF FEBR UARY, 2016, AT CHENNAI. SD/- SD/- ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER ( . ! ' ) (G. PAVAN KUMAR) /JUDICIAL MEMBER / CHENNAI 0 / DATED:25.02.2016 KV 1 ) +#-23 43&- / COPY TO: 1 . '( / APPELLANT 3. ! 5- () / CIT(A) 5. 3 89 +#-# / DR 2. +,'( / RESPONDENT 4. ! 5- / CIT 6. 9:% ; / GF