M D INDUSTRIES PVT LTD, SURAT V. DCIT, CIRCLE -1, SURAT

ITA 499/SRT/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1732 (ITAT-SURAT)
• Duration Of Justice: 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2001-2002
• Appeal Filed On: 30-10-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P SINGH
• Assessee Lawyers: MRS SNEHA M PADHIAR
• Keywords: Gift; Depreciation; Condonation of delay; Revenue expenditure; Reassessment proceedings
• Section: 143(3); 133A; 143(2); 147; 148

Judgement Text

M.D.INDUSTRIES P. LTD. VS. DCIT, CIR-1, SURAT/ITA NO.497-503 & 527/SRT/2019 /A.Y. 1999-00 TO 05-06 & 2000-01 PAGE 1 OF 12 , , IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT BEFORE SHRI SANDEEP GOSAIN, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER . . ./ I.T.A NOS.497 TO 503 & 527/SRT/2019 [ [ / ASSESSMENT YEARS: 1999-2000 TO 2005-06 & 2000-01 M/S.M.D.INDUSTRIES PVT. LTD., B-5, RANGNAGAR SOCIETY, LAMBE HANUMAN ROAD, SURAT. [PAN: AABCM 6026 G] V S . DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-1, SURAT. / APPELLANT /RESPONDENT [ /ASSESSEE BY SHRI VIJAY MEHTA CA, AND MRS. SNEHA M.PADHIAR CA /REVENUE BY SHRI O.P.SINGH CIT-DR / DATE OF HEARING: 04.12.2019 /PRONOUNCEMENT ON: 06.12.2019 /O R D E R PER SANDEEP GOSAIN, JM: 1. THIS EIGHT APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE SEPARATE ORDERS OF LD.COMMISSIONER OF INCOME TAX(APPEALS)-1, SURAT DATED 06.09.2007 AND 28.10.2009 FOR THE ASSESSMENT YEARS 1999- 2000 TO 2005-06 AND 2000-01 RESPECTIVELY. 2. SINCE COMMON ISSUES HAVE BEEN RAISED IN ALL THE APPEALS, HENCE, THE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. ON ALL VITAL POINTS, FACTS ARE COMMON, THEREFORE FOR THE FACILITY OF REFERENCE WE TAKE UP THE FACTS M.D.INDUSTRIES P. LTD. VS. DCIT, CIR-1, SURAT/ITA NO.497-503 & 527/SRT/2019 /A.Y. 1999-00 TO 05-06 & 2000-01 PAGE 2 OF 12 FROM THE APPEAL IN THE CASE OF M.D.INDUSTRIES PVT. LTD., IN ITA NO.497/SRT/2019 FOR A.Y. 1999-2000. CONDONATION OF DELAY: 3. AT THE VERY OUTSET, WE NOTICE THAT THERE IS A DELAY IN FILING OF APPEAL ABOUT 4378 DAYS. THE ASSESSEE HAS FILED AN APPLICATION FOR SEEKING CONDONATION OF DELAY. HE ALSO FILED AN AFFIDAVIT DATED 15.10.2019 AND APPLICATION AS BELOW: APPLICATION CONTENTS AS UNDER: 1. IN THE ABOVE MENTIONED CASE, THE COMMISSIONER OF INCOME TAX (APPEALS)-I, SURAT PASSED AN ORDER ON 06-09-2007 WHICH WAS DULY SERVED. THE DUE DATE OF FILING THIS APPEAL BEFORE THE HON'BLE ITAT WAS TWO MONTHS FROM THE DATE OF RECEIPT OF CIT(A)'S ORDER, I.E. 05-11-2007. THE APPEAL BEFORE YOUR HONOURS IS HOWEVER ' BEING TILED NOW, FOR WHICH THERE IS DELAY OF ABOUT 4378 DAYS. 2. THERE ARE GENUINE REASONS FOR THE DELAY WHICH ARE BEING NARRATED BEFORE YOUR HONOURS FOR YOUR SYMPATHETIC CONSIDERATION AND FOR THE CONDONATION OF THE DELAY, SO THAT THE APPEAL MAY KINDLY BE ADMITTED AND THE JUSTICE DUE TO THE APPELLANT IS RENDERED. 3. SUBSEQUENT TO SURVEY ACTION CARRIED OUT ON 11-03-2005, ALL THE GROUP ENTITIES OF M/S. M. D. INDUSTRIES PRIVATE LIMITED, INCLUDING INDIVIDUALS, HUF, FIRMS ETC. HAD FILED THEIR SETTLEMENT APPLICATIONS BEFORE THE INCOME-TAX SETTLEMENT COMMISSION. IN ALL, TWENTY SUCH APPLICATIONS WERE FILED. PURSUANT TO THE SURVEY CERTAIN TRANSACTIONS WERE UNEARTHED AND THESE TRANSACTIONS WERE OWNED UP BY MAIN PERSON OF THE GROUP, I.E. SHRI MOHAN D. PATEL. WHILE PREPARING THE PETITIONS BEFORE THE INCOME-TAX SETTLEMENT COMMISSION, A, COMMON CASH FLOW WAS PREPARED AND THE INCOME BASED ON IT WAS DECLARED IN THE HANDS OF SHRI MOHAN D. PATEL. 4. 09-03-2006: THE APPELLANT FILED ITS SETTLEMENT PETITION FOR A.Y. 1999-00 TO 2005- 06 BEFORE THE HON'BLE INCOME TAX SETTLEMENT COMMISSION, MUMBAI. 5. 28-12-2006: DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR A.Y. 1999-00, THE APPELLANT SUBMITTED BEFORE THE AO THAT SETTLEMENT PETITION FOR THESE YEARS HAS BEEN FILED BEFORE HON'BLE SETTLEMENT COMMISSION. THE ASSESSING OFFICER PROCEEDED TO COMPLETE THE ASSESSMENT AND PASSED ORDER U/S. 143(3) OF THE ACT ON 28-12-2006 FOR A.Y. 1999-00. 6. 18-01-2007: AGAINST THE SAID ASSESSMENT ORDER, THE APPEAL WAS PREFERRED BEFORE CIT(A) -I, SURAT. 7. 06-07-2007: THE ORDER WAS PASSED BY CIT(A) - I, SURAT DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE FOR A.Y. 1999-00. AN ADVICE WAS SOUGHT FROM THE LEGAL REPRESENTATIVE, ADVOCATE HEMANT JADIA WHO WAS HANDLING THE CASE IN M.D.INDUSTRIES P. LTD. VS. DCIT, CIR-1, SURAT/ITA NO.497-503 & 527/SRT/2019 /A.Y. 1999-00 TO 05-06 & 2000-01 PAGE 3 OF 12 SETTLEMENT COMMISSION WITH REGARDS TO WHETHER APPEAL BEFORE HON'BLE ITAT IS TO BE FILED AGAINST THE ORDER OF CIT(A). MR. HEMANT JADIA HAD OPINED THAT SINCE THE MATTER IS PENDING BEFORE HON'BLE SETTLEMENT COMMISSION, THERE IS NO NEED TO FILE ANY FURTHER APPEAL TO HON'BLE ITAT AS FILING SECOND APPEAL WOULD RESULT IN TO AVOIDABLE MULTIPLICITY OF THE PROCEEDINGS AS WELL AS COST. WE ENCLOSE HEREWITH HIS AFFIDAVIT CONFIRMING THE SAID FACTS FOR YOUR HONOURS' READY PERUSAL AND RECORD. 8. 20-02-2008: THE HON'BLE SETTLEMENT COMMISSION ADMITTED THE SETTLEMENT PETITION FILED FOR ALL THE ASSESSMENT YEARS I.E., FROM A.Y. 1999-00 TO 2005-06 VIDE THEIR ORDER PASSED U/S. 245HA OF THE ACT. 9. 31-03-2008: ALL THE ADMITTED PETITIONS OF THE GROUP INCLUDING THAT OF THE APPELLANT, WERE ABATED ORIJU-02008JDUE TO THE AMENDMENT BROUGHT IN BY FINANCE ACT 2007 IN SECTION 245D(4) OF THE ACT WHEREIN IT WAS PROVIDED THAT IF THE SETTLEMENT PROCEEDINGS WERE NOT CONCLUDED BY 31-03-2008, SUCH PROCEEDINGS WOULD BE ABATED. ACCORDINGLY, THE PETITION OF APPELLANT FOR A.Y. 1999-00 WAS ALSO ABATED. 10. 28-04-2008: ALL THE 20 MEMBERS OF OUR GROUP, THEREAFTER FILED WRIT PETITIONS BEFORE THE HON'BLE BOMBAY HIGH COURT CHALLENGING THE ABATEMENT ORDERS PASSED U/S. 245HA OF THE ACT AS AMENDED VIDE FINANCE ACT, 2007, W.E.F. 01- 06- 2007 WAS CHALLENGED. THE APPELLANT FILED WRIT PETITION FOR A.Y. 1999-00 TO A.Y. 2005-06 BEFORE HON'BLE BOMBAY HIGH COURT. 11. 07-08-2009: HON'BLE BOMBAY HIGH COURT DISPOSED OF THE WRIT PETITIONS IN NINE CASES OF THE GROUP, INCLUDING THE CASE OF THE APPELLANT, AND RESTORED THE SETTLEMENT APPLICATIONS BACK TO THE ITSC. 12. 20-09-2019: THE MEMBERS OF THE BENCH WERE OF THE VIEW THAT THE PETITION FILED BY YOU DESERVES TO BE DISMISSED/ABATED' AS THE GROUP HAS NOT BEEN ABLE TO PROCEED WITH WRIT PETITION FILED BEFORE HON'BLE BOMBAY HIGH COURT BY SHRI MOHAN D PATEL, INSPITE OF REPEATED ASSURANCE GIVEN BY THE APPELLANT TO THE SETTLEMENT COMMISSION. THE BENCH ALSO POINTED OUT THAT APPELLANT HAS TAKEN ADJOURNMENTS ON SEVERAL EARLIER OCCASIONS ON THIS VERY GROUND. SINCE, THE SETTLEMENT PETITION IN THE MAIN CASE, SHRI MOHAN D PATEL, IS NO MORE PENDING BEFORE SETTLEMENT COMMISSION, THE BENCH IS OF THE FIRM VIEW THAT NO DECISION CAN BE TAKEN IN THIS CASE UNTIL THE PETITION IS TAGGED WITH THE SETTLEMENT PETITION OF SHRI MOHAN D. PATEL. 13. 15-10-2019: BASED ON CURRENT CIRCUMSTANCES, HEARING HELD ON 20-09-2019 AND AFTER CONSULTING THE COUNCIL REPRESENTING BEFORE HON'BLE BOMBAY HIGH COURT, M/S. BHUTA SHAH & CO LLP, THE REPRESENTATIVE ADVISED THAT APPEAL SHOULD BE FILED FOR ALL THE ADMITTED YEARS AS HON'BLE COMMISSION IS MORE LIKELY THAN NOT WOULD BE ABATING THE SETTLEMENT PETITION IF SETTLEMENT PETITION OF SHRI MOHAN D PATEL IS NOT DISPOSED BY HON'BLE BOMBAY HIGH COURT SHORTLY. WE ARE ENCLOSING HEREWITH COPY OF THE SAID LETTER. 14. FROM THE ABOVE CHRONOLOGY, THE HON'BLE MEMBERS WOULD OBSERVE THAT PROPER STEPS WERE TAKEN BY US TO AGITATE THE ORDER PASSED BY THE ASSESSING OFFICER. HOWEVER, TO THE MISFORTUNE OF THE APPELLANT, APPEAL AS MANDATED BY THE STATUTE WAS NOT FILED BEFORE THIS HON'BLE TRIBUNAL IN VIEW OF THE CIRCUMSTANCES EXPLAINED HEREINABOVE. AS COULD BE OBSERVED, THE APPELLANT WAS ALWAYS VIGILANT ABOUT THE REMEDIAL MEASURES AND TOOK NECESSARY STEPS IN THE PRESENT CASE. ASSESSING OFFICER HAS MADE A CUMULATIVE ADDITION OF RS. 124.67 CRORES FOR A.Y. 1999-00 TO A.Y. 2005-06 AND THEREFORE IT COULD NOT BE ASSUMED THAT THE APPELLANT WOULD NOT HAVE INTENDED TO CHALLENGE THE ADDITIONS. THE DELAY IS DUE TO THE UNEXPECTED EVENTS LIKE AMENDMENT IN SECTION 2465D, M.D.INDUSTRIES P. LTD. VS. DCIT, CIR-1, SURAT/ITA NO.497-503 & 527/SRT/2019 /A.Y. 1999-00 TO 05-06 & 2000-01 PAGE 4 OF 12 SUBSEQUENT ANNULMENT THEREOF BY THE HON'BLE HIGH COURT, ABATEMENT ORDERS PASSED ETC. AND NOT DUE TO ANY INACTION ON THE PART OF THE APPELLANT. 15. IN THIS CONNECTION, THE APPELLANT PLACES RELIANCE UPON THE FOLLOWING DECISIONS: (I) COLLECTOR, LAND ACQUISITION V. MST. KATIJI & ORS. [167 ITR 471 (SC)]: (II) N. BALAKRISHNAN V. M. RAMAMURTHY [(1998) 7 SCC 123]: (III) SONERAO SADASHIVRAO PATIL & ANR. V. GODAWARIBAI [1999 (2) MH. L.J. 273]: (IV) VENKATADRI TRADERS LTD. V. CIT [248ITR 681 (MAD)]: (V) SAURASHTRA CEMENT AND CHEMICAL INDUSTRIES LTD. V. CIT [115 ITR 27 (GUJ)] (VI) NICCO CORPORATION LTD. V. CIT [251 ITR 791, 798-799 (CAL)] (VII) J.M. BHANSALI AND ORS V. THE STATE OF MADRAS (21 STC 411) (VIII) CHEMINOR DRUGS LTD. V. DCIT [105 ITD 613 (HYD)] 16. WE FURTHER PRAY BEFORE YOUR HONOURS THAT THE REASONS IN DELAY OF FILING OF THIS APPEAL IS SIMILAR TO THOSE DECIDED BY THE HON'BLE ITAT IN EARLIER APPEALS OF THE GROUP CASES VIDE ITS FOLLOWING ORDERS: (I) OLDER DATED 01-06-2017 IN CASE OF ARVINDBHAI MOHANBHAI PATEL, BEARING ITA NO. 1635/AHD/2016, & OTHERS WHEREIN DELAY WAS RANGING BETWEEN 847 DAYS TO 1011 DAYS HAS BEEN CONDONED IN CASES OF 5 ENTITIES. (II) ORDER DATED 23-03-2018 IN CASE OF LAKHANI IMPEX, BEARING ITA NO. 1647,1648 & 1649/AHD/2016/SRT, & OTHERS WHEREIN DELAY WAS RANGING BETWEEN 1007 DAYS TO 2831 DAYS HAS BEEN CONDONED IN CASES OF 11 ENTITIES. (III) ORDER DATED 29-05-2018 IN CASE OF KIRIT MOHANBHAI PATEL, BEARING ITA NO. 1639,1821 & 1822/AHD/2016/SRT & 678/AHD/2015/SRT, & OTHERS WHEREIN DELAY WAS RANGING BETWEEN 1007 DAYS TO 3157 DAYS HAS BEEN CONDONED IN CASES OF 17 ENTITIES. (IV) ORDER DATED 29-05-2018 IN CASE OF MOHANBHAI D. PATEL (HUF), BEARING ITA NO. 1450/AHD/2015/SRT, & OTHERS WHEREIN DELAY WAS RANGING BETWEEN 2810 DAYS TO 2831 DAYS HAS BEEN CONDONED IN CASES OF 3 ENTITIES. THEREFORE, WE HUMBLY SUBMIT BEFORE YOUR HONOURS THAT ISSUE OF CONDONATION OF ISSUE IS A COVERED ISSUE. 17. IN VIEW OF THE FACTS AND CIRCUMSTANCES EXPLAINED ABOVE AND THE RATIO LAID DOWN IN THE AFORESAID DECISIONS, IT IS HUMBLY PRAYED THAT THE DELAY OF ABOUT 4378 DAYS OCCURRED IN FILING THE CAPTIONED APPEAL MAY KINDLY BE CONDONED IN THE INTERESTS OF JUSTICE AND EQUITY, AND IT MAY BE DECIDED ON MERITS AND IN ACCORDANCE WITH LAW. IT IS SUBMITTED THAT BY ACCEDING TO THIS HUMBLE REQUEST, THE REVENUE IS NOT GOING TO BE PREJUDICED BUT, ON THE OTHER HAND, THE APPELLANT WOULD BE PUT TO GRAVE HARM AND INJURY. 18. AND FOR THIS ACT OF KINDNESS, THE APPELLANT SHALL EVER REMAIN GRATEFUL TO YOUR HONOURS. 4. IT WAS SUBMITTED BY THE LD.AUTHORISED REPRESENTATIVE(AR) THAT IN IDENTICAL SET OF FACTS IN THE CASE OF GROUP CONCERN THE DELAY HAS ALREADY M.D.INDUSTRIES P. LTD. VS. DCIT, CIR-1, SURAT/ITA NO.497-503 & 527/SRT/2019 /A.Y. 1999-00 TO 05-06 & 2000-01 PAGE 5 OF 12 BEEN CONDONED BY THE CO-ORDINATE BENCH OF ITAT IN ITA NO.1635 TO 1638 & 1655/AHD/2016 FOR THE A.Y. 2003-04 AND 2001-02 WHEREIN IT WAS HELD AS UNDER: 3. BRIEF FACTS OF THE CASE ARE THAT A SURVEY UNDER SECTION 133A OF THE INCOME TAX ACT, 1961 WAS CONDUCTED IN THE CASE OF SHRI PANKAJ DANAWALA (CA) BY THE DDIT(INV)-II, SURAT. DURING THE COURSE OF SURVEY, IT WAS FOUND THAT SHRI PANKAJ DANAWALA WAS CREATING BOGUS CAPITAL IN THE CASE OF HIS VARIOUS CLIENTS. HE USED TO INCREASE OPENING CAPITAL BALANCE FRAUDULENTLY WITHOUT TAKING INTO ACCOUNT CLOSING BALANCE OF THE IMMEDIATELY PRECEDING YEAR, WHICH OUGHT TO HAVE BEEN OPENING BALANCE OF THE CONCERNED YEAR. HE WOULD SHOW FICTITIOUS GIFTS/INCOME THROUGH WILL, AGRICULTURE INCOME AND FICTITIOUS INTEREST ON LOAN ETC. IN THE SURVEY, IT WAS FOUND THAT SHRI MOHANBHAI DHANJIBHAI PATEL, GROUP MANAGING DIRECTOR WAS ONE OF THE MAJOR BENEFICIARIES OF BOGUS CAPITAL CREATED BY SHRI PANKAJ DANAWALA. DURING THE COURSE OF SURVEY, STATEMENT OF SHRI KIRIT M. PATEL, SON OF SHRI MOHANBHAI DHANJIBHAI PATEL WAS RECORDED AND HE WAS CONFRONTED WITH EVIDENCES FOUND REGARDING CREATION OF BOGUS CAPITAL BY SHRI PANKAJ DANAWALA FOR THE BENEFIT OF SHRI MOHANBHAI DHANJIBHAI PATEL GROUP. IT IS PERTINENT TO POINT OUT THAT THE ASSESSEE SHRI MOHANBHAI DHANJIBHAI PATEL (HUF) HAD GIVEN ADVANCE OF RS.8,000/- TO M.D. TEXTILE LTD., AND RS.6 LAKHS IN THE LOAN ACCOUNT. THUS, A TOTAL RS.6,08,000/- WAS GIVEN FRESH IN THIS YEAR. THIS ADVANCE WAS SHOWN IN THE BALANCE SHEET AS ON 31.3.2003. ON ACCOUNT OF THIS SURVEY OPERATION, INFORMATION CAME TO THE AO, HE REOPENED ASSESSMENT BY RECORDING REASONS AND NOTICE UNDER SECTION 148 WAS ISSUED ON 28.3.2008. THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF SUCH ADVANCES. IT FAILED TO GIVE ANY EXPLANATION. ACCORDINGLY, AN ADDITION OF RS.6,08,000/- WAS MADE TO THE TOTAL INCOME OF THE ASSESSEE VIDE ASSESSMENT ORDER DATED 31.12.2008. 4. SIMILARLY, THE FACTS IN THE CASE OF SHRI ARVINDBHAI M. PATEL ARE THAT DURING THE COURSE OF SURVEY ON THE PREMISES OF SHRI PANKAJ DANAWALA EVIDENCES EXHIBITING CREATION OF BOGUS CAPITAL WAS FOUND. A PERUSAL OF BALANCE SHEET OF SHRI ARVINDBHAI M. PATEL, HUF IT REVEALED THAT THIS ASSESSEE HAS SHOWN LOAN/ADVANCES OF INVESTMENT IN THE NAME OF M.D. INTERNATIONAL AMOUNTING TO RS.24,15,654/-. WHEN THE AO CALLED FOR INFORMATION ABOUT SOURCE AND NATURE OF THIS ADVANCE, THEN NOTHING WAS SUBMITTED, AND ACCORDINGLY, AN ADDITION WAS MADE. SINCE WE ARE NOT CALLED UPON TO ADJUDICATE THESE ISSUES ON MERIT, THEREFORE, WE DO NOT DEEM IT NECESSARY TO TAKE NOTE OF THE FACTS IN OTHER CASES. REFERENCE TO THE ABOVE FACTS IS IN ORDER TO APPRECIATE WHETHER THERE IS A PLAUSIBLE EXPLANATION AT THE END OF THE ASSESSEES TO EXPLAIN THE DELAY IN FILING OF THE APPEAL BEFORE THE TRIBUNAL ORDER OR NOT. THESE ASSESSMENT ORDERS WERE CHALLENGED BEFORE THE LD.CIT(A). THE LD.FIRST APPELLATE AUTHORITY HAS DISMISSED THE APPEALS ON THE GROUND THAT THESE APPEALS ARE NOT MAINTAINABLE BECAUSE THE ASSESSEES HAVE APPROACHED SETTLEMENT COMMISSION AND THE PROCEEDINGS WERE STATED TO BE PENDING AT DIFFERENT LEVELS. THUS, FOR WANT OF JURISDICTION, THE LD.CIT(A) HAS DISMISSED ALL THE APPEALS. 5. WITH THIS BACKGROUND, LET US NOTE OF THE PLEADINGS MADE IN THE APPLICATION FOR CONDONATION OF DELAY. AS OBSERVED EARLIER, WE TAKE THE FACTS FOR REFERRAL PURPOSE ONLY FROM THE CASE OF SHRI MOHANBHAI DHANJIBHAI PATEL HUF. WE TAKE NOTE OF THIS APPLICATION FOR CONDONATION OF DELAY, WHICH READS AS UNDER: 1. IN THE ABOVE MENTIONED CASE, THE COMMISSIONER OF INCOME TAX (APPEALS)-V INCOME TAX OFFICER, SURAT PASSED AN ORDER ON 23-12-2013. THE DUE DATE OF FILING THIS APPEAL BEFORE THE HON'BLE ITAT WAS TWO MONTHS FROM THE DATE OF RECEIPT OF CIT(A)'S ORDER, I.E. 21-02-2014. THE APPEAL BEFORE YOUR HONOURS IS HOWEVER BEING FILED NOW, FOR WHICH THERE IS DELAY OF 847 DAYS. 2. THERE ARE GENUINE REASONS FOR THE DELAY WHICH ARE BEING NARRATED BEFORE YOUR HONOURS FOR YOUR SYMPATHETIC CONSIDERATION AND FOR THE CONDONATION OF THE DELAY, SO THAT THE APPEAL MAY KINDLY BE ADMITTED AND THE JUSTICE DUE TO THE APPELLANT IS RENDERED. THE CHRONOLOGY OF THE EVENTS IN THE GIVEN CASE IS STATED BELOW. M.D.INDUSTRIES P. LTD. VS. DCIT, CIR-1, SURAT/ITA NO.497-503 & 527/SRT/2019 /A.Y. 1999-00 TO 05-06 & 2000-01 PAGE 6 OF 12 3. SUBSEQUENT TO SURVEY ACTION CARRIED OUT ON 11-03-2006, ALL TWENTY MEMBERS OF THE GROUP FILED SETTLEMENT PETITION FOR VARIOUS ASSESSMENT YEARS RANGING FROM 09-03-2006 TO 05-04- 2007. ALL THE TWENTY CASES WERE COVERED BY SINGLE SURVEY. ALL THESE CASES ARE CONNECTED AND HAVE COMMON ISSUES. ALL THE MEMBERS BELONGING TO GROUP WERE WHOLLY CONTROLLED AND MANAGED BY SHRI M. D. PATEL. A COMMON CASH FLOW HAS BEEN PREPARED IN CASE OF SETTLEMENT PETITION OF SHRI M.D. PATEL WHEREIN TRANSACTIONS OF ALL THE TWENTY GROUP MEMBERS HAVE BEEN INCORPORATED. THE NET INCOME OF THE SAID CASH FLOW HAS BEEN OFFERED AS ADDITIONAL INCOME OF SHRI M. D. PATEL IN HIS SETTLEMENT PETITION. 4. 29-03-2006: THE APPELLANT FILED ITS SETTLEMENT PETITION FOR AY 1999- 00 TO 2005-06 BEFORE THE HON'BLE INCOME TAX SETTLEMENT COMMISSION, MUMBAI. HOWEVER NOTICE U/S. 148 AND 143(2) OF THE ACT WAS RECEIVED ONLY IN CASE OF AY 2000-01 AND 2004-05 RESPECTIVELY AT THE TIME OF FILING THE PETITION. 5. 20-02-2008: THE SETTLEMENT COMMISSION PASSED ORDER FOR ADMISSION AND ABATEMENT OF ALL 20 PETITIONS U/S. 245HA OF THE ACT BY ONE COMMON ORDER. ACCORDING TO THE SAID ORDER, SETTLEMENT APPLICATION OF THE APPELLANT FOR ASSESSMENT YEAR 2000-01 AND 2004-05 WAS PROCEEDED WITH, WHILE FOR AY 1999-2000, 2001-02 TO 2003-04 AND 2005-06 WERE ABATED ON GROUNDS OF NON PENDENCY OF PROCEEDING. 6. 28-03-2008: NOTICES U/S. 148 OF THE ACT WAS ISSUED FOR AY 2003-04. 7. 31-03-2008: ALL THE ADMITTED PETITIONS OF THE GROUP WERE ABATED ON 31-03-2008 DUE TO THE AMENDMENT BROUGHT IN BY FINANCE ACT 2007 IN SECTION 245D(4) OF THE ACT WHEREIN IF THE SETTLEMENT PROCEEDINGS WERE NOT CONCLUDED BY 31-03-2008, SUCH PROCEEDINGS WOULD BE ABATED. ACCORDINGLY, THE PETITION OF APPELLANT FOR AY 2000-01 AND 2004-05 WERE ALSO ABATED. 8. 28-04-2008: ALL THE 20 MEMBER OF OUR GROUP, THEREAFTER FILED WRIT PETITIONS IN THE HON'BLE BOMBAY HIGH COURT CHALLENGING THE ABATEMENT ORDERS PASSED U/S. 245HA OF THE ACT BY SETTLEMENT COMMISSION AS WELL AS CHALLENGING THE CONSTITUTIONAL VALIDITY OF SECTIONS 245D(2A), 245(20), 245D(4A) AND 245HA OF THE IT. ACT, 1961, AS AMENDED/INSERTED BY FINANCE ACT, 2007, W.E.F. 01-06-2007 WHICH WAS ADMITTED ON 30-04-2008. THE APPELLANT FILED WRIT PETITION FOR AY 2000-01 AND 2004-05 BEFORE HON'BLE BOMBAY HIGH COURT. 9. 31-12-2008: THE ASSESSMENT PROCEEDINGS WERE CONCLUDED BY THE ASSESSING OFFICER U/S. 147 OF THE ACT FOR AY 2003-04. 10. 07-08-2009: BASED ON JUDGMENT OF HON'BLE BOMBAY HIGH COURT IN CASE OF STAR TELEVISION NEWS LIMITED VS. UOI & OTHERS (2009) 317 ITR 66 (BOM), WHEREIN IT WAS HELD BY HON'BLE BOMBAY HIGH COURT THAT IF THE DELAY IN DISPOSAL BEFORE 31-03-2008 IS NOT ATTRIBUTABLE TO THE APPLICANT, THEN SETTLEMENT COMMISSION WAS DIRECTED TO HEAR THOSE PETITIONS, 9 CASES OF THE GROUP INCLUDING THE APPELLANT'S CASE WERE DISPOSED BY THE HON'BLE HIGH COURT VIDE THEIR ORDERS DATED 07-08-2009 AND WERE RESTORED BACK TO THE ITSC FOR FINAL HEARING U/S. 245D(4)OF THE ACT. 11. 23-12-2013: THE ORDER WAS PASSED BY CIT(A) - V FOR AY 2003-04, DISMISSED THE APPEAL FOR WANT OF JURISDICTION. THE APPEAL WAS DISMISSED IN LIMINE BY THE LEARNED CIT(A). A LEGAL OPINION WAS SOUGHT FROM THE REPRESENTATIVE, ADVOCATE HEMANT JADIA WHO WAS HANDLING THE CASE IN SETTLEMENT COMMISSION AS WELL AS IN HON'BLE BOMBAY HIGH COURT WITH REGARDS TO WHETHER APPEAL BEFORE HON'BLE IT AT IS TO BE FILED AGAINST THE ORDER OF CIT(A). MR. HEMANT JADIA HAD OPINED THAT SINCE THE MATTER IS PENDING BEFORE HON'BLE BOMBAY HIGH COURT AND THEREAFTER WILL POSITIVELY BE HEARD BY HON'BLE SETTLEMENT COMMISSION, THERE IS NO NEED TO FILE ANY FURTHER APPEAL TO HON'BLE IT AT. HE WAS ALSO OF THE OPINION THAT IN CASE OF ANY ABATED YEARS OR IN ANY YEAR WHICH WILL NOT BE RESTORED BY HON'BLE BOMBAY HIGH COURT, THE HON'BLE SETTLEMENT COMMISSION WOULD TAKE UP THOSE YEARS EXERCISING THEIR POWER U/.S 245E OF THE ACT. SINCE ALL THE YEARS AND MEMBER OF THE GROUP ARE CONNECTED, HE OPINED THAT IN ALL LIKELIHOOD ALL MATTERS WOULD BE HEARD TOGETHER BY THE SETTLEMENT COMMISSION. 12. 03-06-2016: DURING THE COURSE OF HEARING BEFORE HON'BLE SETTLEMENT COMMISSION, THE ISSUE OF REVIVING THE ABATED YEARS WAS DISCUSSED IN LENGTH IN THE GIVEN M.D.INDUSTRIES P. LTD. VS. DCIT, CIR-1, SURAT/ITA NO.497-503 & 527/SRT/2019 /A.Y. 1999-00 TO 05-06 & 2000-01 PAGE 7 OF 12 CASES FIXED. BOTH THE PARTIES ARGUED OVER THE ISSUE. THE MEMBERS HOWEVER, DECLINED TO EXERCISE THEIR INHERENT POWER AVAILABLE U/S. 245E OF THE ACT TO REVIVE THE ABATED YEARS. 13. 07-06-2016: BASED ON CURRENT CIRCUMSTANCES AND HEARING HELD ON 03-06-2016, M/S. BHUTA SHAH & CO LLP, THE REPRESENTATIVE ADVISED THAT APPEAL SHOULD BE FILED FOR ALL ABATED YEARS AS HON'BLE MEMBERS OF SETTLEMENT COMMISSION HAD DECLINED TO REVIVE ALL ABATED YEARS. WE ARE ENCLOSING HEREWITH COPY OF THE SAID LETTER. 14. FROM THE ABOVE CHRONOLOGY, THE HON'BLE MEMBERS WOULD OBSERVE THAT PROPER STEPS WERE TAKEN BY US TO AGITATE THE ORDER PASSED BY THE ASSESSING OFFICER. HOWEVER, TO THE MISFORTUNE OF THE APPELLANT, APPEAL AS MANDATED BY THE STATUTE WAS NOT FILED BEFORE THIS HON'BLE TRIBUNAL IN VIEW OF THE CIRCUMSTANCES EXPLAINED HEREINABOVE. CONSIDERING THE COMPLEXITY OF THE SUBJECT-MATTER, IT IS HUMBLY PRAYED THAT THE DELAY CAUSED IN LODGING THE CAPTIONED APPEAL MAY KINDLY BE CONDONED. 15.IN THIS CONNECTION, THE APPELLANT PLACES RELIANCE UPON THE FOLLOWING DECISIONS WITH THE RELEVANT FINDINGS THEREFROM: COLLECTOR. LAND ACQUISITION V. MST. KATIJI & ORS. [167 ITR 471 (SOI: 'THE LEGISLATURE HAS CONFERRED POWER TO CONDONE DELAY BY ENACTING SECTION 5 OF THE LIMITATION ACT, 1963, IN ORDER TO ENABLE THE COURTS TO SUBSTANTIAL JUSTICE TO PARTIES BY DISPOSING OF MATTERS ON MERITS. THE EXPRESSION 'SUFFICIENT CAUSE' IN SECTION 5 IS ADEQUATELY ELASTIC TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SUBSERVES THE ENDS OF JUSTICE-THAT BEING THE LIFE-PURPOSE OF THE EXISTENCE OF THE INSTITUTION OF COURTS. A JUSTIFIABLY LIBERAL APPROACH HAS TO BE ADOPTED ON PRINCIPLE. 'EVERY DAY'S DELAY MUST BE EXPLAINED' DOES NOT IMPLY A PEDANTIC APPROACH. THE DOCTRINE MUST BE APPLIED IN A RATIONAL, COMMON SENSE AND PRAGMATIC MANNER. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATION ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED, FOR THE OTHER SIDE CANNOT CLAIM TO HAVE A VESTED RIGHT IN INJUSTICE BEING DONE BE *CAUSE OF A NON-DELIBERATE DELAY.' (II) N. BALAKRISHNAN V. M. RAMAMURTHY [(1998) 7 SCC 1231: '12. A COURT KNOWS THAT REFUSAL TO CONDONE DELAY WOULD RESULT IN FORECLOSING A SUITOR FORM PUTTING FORTH HIS CAUSE. THERE IS NO PRESUMPTION THAT DELAY IN APPROACHING THE COURT IS ALWAYS DELIBERATE. THIS COURT HAS HELD THAT THE WORDS 'SUFFICIENT CAUSE' UNDER SECTION 5 OF THE LIMITATION ACT SHOULD RECEIVE A LIBERAL CONSTRUCTION SO AS TO ADVANCE SUBSTANTIAL JUSTICE VIDE SHANKUTALA DEVI JAIN V. KUNTAL KUMARI (AIR 1969 SC 575) AND STATE OF W.B. V. ADMINISTRATOR, HOWRAH MUNICIPALITY (AIR 1972 SC 949)'. (III) SONERAO SADASHIVRAO PATIL & ANR. V. GODAWARIBAI F1999 (2) MH. LJ. 2731: ' THE PRIMARY FUNCTION OF A COURT TO IS TO ADJUDICATE THE DISPUTES BETWEEN THE CONTESTING PARTIES AND TO ADVANCE SUBSTANTIAL JUSTICE. THE RULES OF LIMITATION ARE NOT MADE TO HARM THE VALUABLE RIGHTS OF THE PARTIES. THE DISCRETION IS GIVEN TO THE COURT TO CONDONE DELAY AND ADMIT THE APPEAL IN ORDER THAT JUDICIAL POWER AND DISCRETION IN THAT BEHALF SHOULD BE EXERCISED TO ADVANCE SUBSTANTIAL JUSTICE ................................................................................ THE REQUIREMENT OF EXPLANATION OF EVERY DAY'S DELAY DOES NOT MEAN THAT A PEDANTIC APPROACH SHOULD BE TAKEN. THE COURTS ARE REQUIRED TO TAKE PRAGMATIC APPROACH WHILE INTERPRETING THE CONCEPT OF SUFFICIENT CAUSE. TOO MUCH RIGOUR OF THE LAW IS NOT JUSTICE BUT THE DENIAL OF IT. IT IS TO BE BORNE IN MIND THE MAXIM 'SUMMUM JUS, SUMMA INJURIA'. EXTREME LAW IS EXTREME INJURY. IN THE MATTER OF CONDONATION OF DELAY, THE DURATION OF DELAY IS INSIGNIFICANT. THE COURT HAS TO TAKE INTO ACCOUNT WHETHER THERE IS ACCEPTABLE EXPLANATION OR PARDONABLE EXPLANATION.' M.D.INDUSTRIES P. LTD. VS. DCIT, CIR-1, SURAT/ITA NO.497-503 & 527/SRT/2019 /A.Y. 1999-00 TO 05-06 & 2000-01 PAGE 8 OF 12 (IV) VENKATADRI TRADERS LTD, V. CIT F248 ITR 681 (MAD)]: 'THE DISCRETION SO VESTED IS REQUIRED TO BE EXERCISED IN A MANNER WHICH WOULD PROTECT AND PROMOTE THE JUST INTEREST OF THE ASSESSEE. THE POSITION OF THE ASSESSEE VIS-A-VIS THE REVENUE IS NOT STRICTLY ADVERSARIAL, ALTHOUGH MORE OFTEN THAN NOT, THAT IS THE MANNER IN WHICH THE TWO PARTIES PERCEIVE THEIR ROLE. THE REVENUE IS NOT TO BE REGARDED AS INTERESTED IN SCORING POINTS AGAINST THE ASSESSEE, BUT ONLY IN THE JUST ENFORCEMENT OF THE PROVISIONS OF THE ACT. THE DISCRETION OF THE AUTHORITY, THEREFORE, ON THE FACTS OF THIS CASE, WAS REQUIRED TO BE EXERCISED BY BEARING THE AFOREMENTIONED CONSIDERATIONS IN MIND. ' V) SAURASHTRA CEMENT AND CHEMICAL INDUSTRIES LTD, V. CIT [115 ITR 27 IN AY 1965-66, THE ASSESSEE HAD PAID A SUM OF X 3,00,600/- TO GUJARAT STATE ELECTRICITY BOARD FOR LAYING ELECTRIC POWER LINE TO ITS FACTORY, WHICH WAS CAPITALIZED AND DEPRECIATION THEREON WAS CLAIMED @10%. THIS CLAIM WAS ALLOWED BY THE ITO IN THE ORDER PASSED FOR THAT YEAR. SIMILAR CLAIM FOR THE SUBSEQUENT YEAR, HOWEVER, WAS DISALLOWED BY THE ITO ON THE GROUND THAT THE ASSESSEE WAS NOT THE OWNER OF THE POWER LINE AND SUCH FINDING WAS SUSTAINED IN FIRST APPEAL. DURING THE COURSE OF THE HEARING BEFORE THE ITAT, THE ASSESSEE REALIZED THE DIFFICULTY IN GETTING DEPRECIATION AND, ACCORDINGLY, REQUESTED THE TRIBUNAL TO ALLOW IT TO WITHDRAW THE APPEAL WHICH WAS GRANTED. SUBSEQUENT TO RECEIPT OF THE ORDER OF THE TRIBUNAL ON 07.12.1972, THE ASSESSEE FILED A REVISION APPLICATION ON 26.12.1972 PRAYING THAT IT SHOULD BE ALLOWED TO TREAT THE AMOUNT OF X 3,00,600/- AS REVENUE EXPENDITURE FOR A.Y. 1965-66 ALONG WITH AN APPLICATION FOR CONDONATION OF DELAY. THAT WAS, HOWEVER, REJECTED FOR DELAY. IN THE WRIT PETITION FILED, THE HON'BLE HIGH COURT HELD AS UNDER: 'IN THE INSTANT CASE, THE COMMISSIONER RECOGNIZED THAT IT WOULD HAVE BEEN A SUFFICIENT CAUSE IF THE PETITIONER-COMPANY HAD APPROACHED THE COMMISSIONER IMMEDIATELY AFTER THE ORDER OF THE INCOME-TAX OFFICER WITH REFERENCE TO ASSESSMENT YEAR 1966-67, BUT DECLINED TO CONDONE THE DELAY JUST BECAUSE THE PETITIONER-COMPANY TOOK THE MATTER IN APPEAL FIRST BEFORE THE APPELLATE ASSISTANT COMMISSIONER AND THEREAFTER BEFORE THE APPELLATE TRIBUNAL. THAT APPROACH COULD NOT BE SAID TO BE IN EXERCISE OF SOUND JUDICIAL DISCRETION AND THE DECISION BECOMES ILLOGICAL ONCE THE TWO CONCLUSIONS REACHED BY HIM ARE EXAMINED CLOSELY. MERELY BECAUSE THE MATTER WAS TAKEN IN APPEAL, IT DOES NOT CHANGE THE COMPLEXION AND IT WOULD BE IMPOSSIBLE TO COME TO THE CONCLUSION THAT BECAUSE OF THAT THERE WAS NO SUFFICIENT CAUSE. UNDER THE CIRCUMSTANCES, IT MUST BE HELD THAT THE DISCRETION VESTED IN HIM WAS NOT EXERCISED IN A JUDICIAL MANNER AND THE RESULT WAS THAT A SUBSTANTIAL INJURY WAS 'CAUSED TO THE PETITIONER- COMPANY SO FAR AS THE CONSIDERATION OF THE QUESTION REGARDING THE REVENUE ' EXPENDITURE OF RS.3,00,600 WAS CONCERNED.' 6. THE LD.COUNSEL FOR THE ASSESSEE TOOK US THROUGH THE APPLICATION AS WELL AS OPINION OF SHRI HEMANT JADIA DATED 7.6.2016. COPY OF THE LETTER WRITTEN BY SHRI HEMANT JADIA TO KIRIT M. PATEL HAS BEEN PLACED ON RECORD. HE ALSO TOOK US THROUGH WRIT PETITION FILED BY THE RESPECTIVE ASSESSEES BEFORE THE HONBLE BOMBAY HIGH COURT AND ALSO INTERIM ORDER PASSED BY THE HONBLE HIGH COURT. APART FROM DECISIONS REFERRED IN THE APPLICATION FOR CONDONATION OF DELAY, HE MADE REFERENCE TO A LARGE NUMBER OF TRIBUNALS ORDERS WHICH ARE PLACED IN THE PAPER BOOK. ON THE STRENGTH OF THESE PLEADINGS, HE CONTENDED THAT THERE WAS NO DELIBERATE ATTEMPT AT THE END OF THE ASSESSEE FOR NOT FILING THE APPEAL WITHIN TIME LIMIT. ACCORDING TO THE LD.COUNSEL FOR THE ASSESSEE, THEY WERE NOT PROPERLY ADVISED BY THEIR TAX CONSULTANT, AND ON ACCOUNT OF THAT THE APPEALS BECOME TIME BARRED. 7. ON THE OTHER HAND, THE LD.DR CONTENDED THAT THERE IS NO EXPLANATION AT THE END OF THE ASSESSEES. HE POINTED OUT THAT LETTER FROM SHRI HEMANT JADIA IS DATED 7.6.2016 WHEREAS THE APPEALS OUGHT TO HAVE BEEN FILED IN 2013. THEY HAVE NOT TAKEN ANY STEPS BEFORE THE HONBLE SETTLEMENT COMMISSION AFTER THE ORDER OF THE HONBLE HIGH COURT TILL THE APPLICATION UNDER SECTION 245E OF THE INCOME TAX ACT WAS CONSIDERED AGAINST ABATEMENT ORDER WAS FILED ON 14.3.2015. WHEREAS, THE LD.CIT(A) HAS DECIDED THE APPEAL FOR WANT OF JURISDICTION ON 23.12.2013. THERE IS NO EXPLANATION FOR THIS DELAY. HONBLE SETTLEMENT COMMISSION HAS ALSO REJECTED THEIR APPLICATION UNDER SECTION 245E ON 3.6.2016 THEREAFTER, THEY HAVE FILED M.D.INDUSTRIES P. LTD. VS. DCIT, CIR-1, SURAT/ITA NO.497-503 & 527/SRT/2019 /A.Y. 1999-00 TO 05-06 & 2000-01 PAGE 9 OF 12 APPLICATION ON 17.6.2016. ACCORDING TO THE LD.DR, THERE IS NO PLAUSIBLE EXPLANATION AT THE END OF THE ASSESSEE. 8. WE HAVE CONSIDERED RIVAL CONTENTIONS AND GONE THROUGH THE RECORD CAREFULLY. SUB- SECTION 5 OF SECTION 253 CONTEMPLATES THAT THE TRIBUNAL MAY ADMIT AN APPEAL OR PERMIT FILING OF MEMORANDUM OF CROSS-OBJECTIONS AFTER EXPIRY OF RELEVANT PERIOD, IF IT IS SATISFIED THAT THERE WAS A SUFFICIENT CAUSE FOR NOT PRESENTING IT WITHIN THAT PERIOD. THIS EXPRESSION SUFFICIENT CAUSE EMPLOYED IN THE SECTION HAS ALSO BEEN USED IDENTICALLY IN SUB-SECTION 3 OF SECTION 249 OF INCOME TAX ACT, WHICH PROVIDES POWERS TO THE LD.COMMISSIONER TO CONDONE THE DELAY IN FILING THE APPEAL BEFORE THE COMMISSIONER. SIMILARLY, IT HAS BEEN USED IN SECTION 5 OF INDIAN LIMITATION ACT, 1963. WHENEVER INTERPRETATION AND CONSTRUCTION OF THIS EXPRESSION HAS FALLEN FOR CONSIDERATION BEFORE HONBLE HIGH COURT AS WELL AS BEFORE THE HONBLE SUPREME COURT, THEN, HONBLE COURT WERE UNANIMOUS IN THEIR CONCLUSION THAT THIS EXPRESSION IS TO BE USED LIBERALLY. WE MAY MAKE REFERENCE TO THE FOLLOWING OBSERVATIONS OF THE HONBLE SUPREME COURT FROM THE DECISION IN THE CASE OF COLLECTOR LAND ACQUISITION VS. MST. KATIJI & OTHERS, 1987 AIR 1353: 1. ORDINARILY A LITIGANT DOES NOT STAND TO BENEFIT BY LODGING AN APPEAL LATE. 2. REFUSING TO CONDONE DELAY CAN RESULT IN A MERITORIOUS MATTER BEING THROWN OUT 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 CAUSE WOULD BE DECIDED ON MERITS AFTER HEARING THE PARTIES. 3. 'EVERY DAY'S DELAY MUST BE EXPLAINED' DOES NOT MEAN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOUR'S DELAY, EVERY SECOND'S DELAY? THE DOCTRINE MUST BE APPLIED IN A RATIONAL COMMON SENSE PRAGMATIC MANNER. 4. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS ARE PITTED AGAINST EACH OTHER, 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 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 BENEFIT BY RESORTING TO DELAY. IN FACT HE RUNS A SERIOUS RISK. 6. IT MUST BE GRASPED THAT JUDICIARY IS RESPECTED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. 9. SIMILARLY, WE WOULD LIKE TO MAKE REFERENCE TO AUTHORITATIVE PRONOUNCEMENT OF HONBLE SUPREME COURT IN THE CASE OF N.BALAKRISHNAN VS. M. KRISHNAMURTHY (SUPRA). IT READS AS UNDER: RULE OF LIMITATION ARE NOT MEANT TO DESTROY THE RIGHT OF PARTIES. THEY ARE MEANT TO SEE THAT PARTIES DO NOT RESORT TO DILATORY TACTICS, BUT SEEK THEIR REMEDY PROMPTLY. THE OBJECT OF PROVIDING A LEGAL REMEDY IS TO REPAIR THE DAMAGE CAUSED BY REASON OF LEGAL INJURY. LAW OF LIMITATION FIXES A LIFE-SPAN FOR SUCH LEGAL REMEDY FOR THE REDRESS OF THE LEGAL INJURY SO SUFFERED. TIME IS PRECIOUS AND THE WASTED TIME WOULD NEVER REVISIT. DURING EFFLUX OF TIME NEWER CAUSES WOULD SPROUT UP NECESSITATING NEWER PERSONS TO SEEK LEGAL REMEDY BY APPROACHING THE COURTS. SO A LIFE SPAN MUST BE FIXED FOR EACH REMEDY. UNENDING PERIOD FOR LAUNCHING THE REMEDY MAY LEAD TO UNENDING UNCERTAINTY AND CONSEQUENTIAL ANARCHY. LAW OF LIMITATION IS THUS FOUNDED ON PUBLIC POLICY. IT IS ENSHRINED IN THE MAXIM INTEREST REIPUBLICAE UP SIT FINIS LITIUM (IT IS FOR THE GENERAL WELFARE THAT A PERIOD BE PUTT TO LITIGATION). RULES OF LIMITATION ARE NOT MEANT TO DESTROY THE RIGHT OF THE PARTIES. THEY ARE MEANT TO SEE THAT PARTIES DO NOT RESORT TO DILATORY TACTICS BUT SEEK THEIR REMEDY PROMPTLY. THE IDEA IS THAT EVERY LEGAL REMEDY MUST BE KEPT ALIVE FOR A LEGISLATIVELY FIXED PERIOD OF TIME. M.D.INDUSTRIES P. LTD. VS. DCIT, CIR-1, SURAT/ITA NO.497-503 & 527/SRT/2019 /A.Y. 1999-00 TO 05-06 & 2000-01 PAGE 10 OF 12 A COURT KNOWS THAT REFUSAL TO CONDONE DELAY WOULD RESULT 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 'SUFFICIENT CAUSE' UNDER SECTION 5 OF THE LIMITATION ACT SHOULD RECEIVE A LIBERAL CONSTRUCTION SO AS TO ADVANCE SUBSTANTIAL JUSTICE VIDE SHAKUNTALA DEVI LAIN VS. KUNTAL KUMARI [AIR 1969 SC 575] AND STATE OF WEST BENGAL VS. THE ADMINISTRATOR, HOWRAH MUNICIPALITY [AIR 1972 SC 749]. IT MUST BE REMEMBERED THAT IN EVERY CASE OF DELAY THERE CAN BE SOME LAPSE ON THE PART OF THE LITIGANT CONCERNED. THAT ALONE IS NOT ENOUGH TO TURN DOWN HIS PLEA AND TO SHUT THE DOOR AGAINST HIM. IF THE EXPLANATION DOES NOT SMACK OF MALA FIDES OR IT IS NOT PUT FORTH AS PART OF A DILATORY STRATEGY THE COURT MUST SHOW UTMOST CONSIDERATION TO THE SUITOR. BUT WHEN THERE IS REASONABLE GROUND TO THINK THAT THE DELAY WAS OCCASIONED BY THE PARTY DELIBERATELY TO GAIN TIME THEN THE COURT SHOULD LEAN AGAINST ACCEPTANCE OF THE EXPLANATION. WHILE CONDONING DELAY THE COULD SHOULD NOT FORGET THE OPPOSITE PARTY ALTOGETHER. IT MUST BE BORNE IN MIND THAT HE IS A LOOSER AND HE TOO WOULD HAVE INCURRED QUIET A LARGE LITIGATION EXPENSES. IT WOULD BE A SALUTARY GUIDELINE THAT WHEN COURTS CONDONE THE DELAY DUE TO LACHES ON THE PART OF THE APPLICANT THE COURT SHALL COMPENSATE THE OPPOSITE PARTY FOR HIS LOSS. 10. WE DO NOT DEEM IT NECESSARY TO RE-CITE OR RECAPITULATE THE PROPOSITION LAID DOWN IN OTHER DECISIONS. IT IS SUFFICE TO SAY THAT THE HONBLE COURTS ARE UNANIMOUS IN THEIR APPROACH TO PROPOUND THAT WHENEVER THE REASONS ASSIGNED BY AN APPLICANT FOR EXPLAINING THE CONDONATION OF DELAY, THEN SUCH REASONS ARE TO BE CONSTRUED WITH A JUSTICE ORIENTED APPROACH. IN THE LIGHT OF THE ABOVE, LET US CONSIDER EXPLANATION OF THE ASSESSEE. A PERUSAL OF THE APPLICATION FOR CONDONATION OF DELAY WOULD INDICATE THAT ON 29.3.2006 SETTLEMENT PETITIONS WERE FILED BEFORE THE INCOME TAX SETTLEMENT COMMISSION IN THE ASSTT.YEAR 1999-2000 TO 2005-06. ON 22.2.008, SETTLEMENT COMMISSION HAS DISMISSED APPLICATIONS EXCEPT FOR THE ASSTT.YEAR 2000-01 AND 2004-05 IN THE CASE OF MOHANBHAI D. PATEL. SIMILARLY IN OTHER CASES, APPLICATIONS WERE ADMITTED EITHER FOR ONE YEAR OR TWO YEARS VIZ. IN THE CASE OF ARVIND PATEL APPLICATION FOR THE ASSTT.YEAR 2004-05 WAS ADMITTED FOR CONSIDERATION AND APPLICATION FOR ASSTT.YEAR 1999-2000 TO 2003-04 AND 2005-2006 WERE ABATED ON THE GROUNDS OF NON- PENDENCY OF THE PROCEEDINGS. THEREAFTER, AMENDMENTS WERE BROUGHT IN FINANCE ACT, 2007 IN SECTION 245D(4) OF THE INCOME TAX ACT WHEREIN IT WAS PROVIDED THAT IF SETTLEMENT PROCEEDINGS WERE NOT CONCLUDED ON 31.3.2008, THEN SUCH PROCEEDINGS WOULD ABATE. ACCORDINGLY, THE PETITIONS OF THE ASSESSEES FOR THE YEARS ADMITTED BY THE SETTLEMENT COMMISSION FOR CONSIDERATION HAVE ALSO BEEN DISMISSED. APPELLANTS HAVE CHALLENGED THE ORDER OF SETTLEMENT COMMISSION DATED 31.3.2008 VIDE WHICH THEIR PETITIONS HAVE BEEN ABATED BY OPERATION OF PROVISIONS OF INCOME TAX ACT BEFORE THE HONBLE HIGH COURT. ULTIMATELY, HONBLE COURT ALLOWED THEIR PETITIONS AND REMITTED THAT MATTER BACK TO THE FILE OF SETTLEMENT COMMISSION FOR ADJUDICATION. QUESTION BEFORE US IS HOW THE ASSESSEES HAVE HARBOURED A BELIEF THAT THEY SHOULD NOT FILE APPEALS BEFORE THE TRIBUNAL. ACCORDING TO THEM, THEY WERE EXPECTING THAT THEIR CASES WILL BE TAKEN UP BY THE SETTLEMENT COMMISSION IN ALL ASSESSMENT YEARS. ACCORDING TO THE ASSESSEE, THEY HAVE HARBOURED THIS BELIEF ON THE ADVICE OF THEIR COUNSEL SHRI HEMANT JADIA, WHOSE OPINION IS AVAILABLE ON THE PAPER BOOK. 11. WE HAVE CONSIDERED THIS OPINION. THE LD.COUNSEL FOR THE ASSESSEE ALSO TOOK US THROUGH LETTER OF PR. COMMISSIONER OF INCOME TAX, SURAT DATED 26.5.2016 WRITTEN TO THE CIT(DR), SETTLEMENT COMMISSION. THIS LETTER WAS REBUTTAL TO REPLY TO RULE 9 REPORT MADE IN THE M.D. GROUP OF CASES. WHILE GIVING REPLY TO THE CASES OF SHREYA TRADERS, ONE OF THE CONCERNS OF GROUP, EVEN THE DEPARTMENT HAS SUPPORTED THE APPLICATION OF THE ASSESSEE MOVED UNDER SECTION 245E OF THE INCOME TAX ACT FOR TAKING UP PETITION RELEVANT TO THE ASSTT.YEAR 2004-05 FOR CONSIDERATION. IT IS PERTINENT TO OBSERVE THAT WHEN THE SETTLEMENT COMMISSION HAS DISMISSED THE APPLICATION OF THE APPELLANTS ON 20.2.008, MAIN REASON WAS THAT NO PROCEEDINGS WERE PENDING BEFORE THE INCOME TAX AUTHORITIES. AFTER THIS ORDER, PROCEEDINGS HAVE BEEN INITIATED UNDER SECTION 147 OF THE ACT. IN OTHER WORDS, THE ASSESSMENTS HAVE BEEN REOPENED ON 31.12.2008, BUT BEFORE ANY ASSESSMENT COULD BE PASSED PETITIONS FOR OTHER YEARS ADMITTED BY THE SETTLEMENT COMMISSION WERE ALSO ABATED ON 31.3.2008 BECAUSE OF THE AMENDMENT MADE IN THE INCOME TAX ACT BY WAY OF FINANCE ACT, 2007. THUS, A VERY VEXED SITUATION DEVELOPED. ON ONE HAND, THE ASSESSEE HAS FILED WRIT PETITION BEFORE THE HONBLE HIGH COURT CHALLENGING ORDER OF THE SETTLEMENT COMMISSION DATED 31.3.2008 VIDE WHICH, THEIR APPLICATIONS ADMITTED FOR CONSIDERATION FOR SOME OF THE YEARS, M.D.INDUSTRIES P. LTD. VS. DCIT, CIR-1, SURAT/ITA NO.497-503 & 527/SRT/2019 /A.Y. 1999-00 TO 05-06 & 2000-01 PAGE 11 OF 12 WERE TREATED AS ABATED BY OPERATION OF LAW. ON THE OTHER HAND, THE AO HAS INITIATED REASSESSMENT PROCEEDINGS IN SOME OF THE YEARS GIVING A BELIEF TO THE ASSESSEE THAT NOW THE PROCEEDINGS ARE PENDING IN OTHER YEARS. THEY CAN ALSO BE TAKEN INTO SETTLEMENT COMMISSION. THE IMPORTANT FACT WHICH WEIGH WITH US FOR ACCEPTING BONAFIDE OF THE ASSESSEE IS THAT EVEN IN 2013, THE LD.CIT(A) HAS HABOURED A BELIEF THAT PROCEEDINGS ARE PENDING BEFORE THE SETTLEMENT COMMISSION, AND THEREFORE, THE LD.CIT(A) HAS NO JURISDICTION TO ENTERTAIN THE ISSUE AGITATED BY THE ASSESSEE ON MERIT. THIS FINDINGS OF THE LD.CIT(A) SUPPORTS BONA FIDE OF THE ASSESSEE IN BELIEVING THAT THEIR APPLICATIONS UNDER SECTION 245E WOULD BE ENTERTAINED BY THE SETTLEMENT COMMISSION AND THERE IS NO NEED TO CHALLENGE THE ORDER OF THE CIT(A). IT IS ALSO IMPORTANT TO NOTE THAT THERE IS NO ADJUDICATION ON MERIT ON THE ISSUES INVOLVED IN THESE APPEALS BY THE LD.CIT(A). THE APPEALS WERE DISMISSED FOR THE REASON THAT THEY ARE NOT MAINTAINABLE. CONSIDERING THIS ASPECT AND IN THE INTEREST OF JUSTICE, WE DEEM IT APPROPRIATE TO CONDONE THE DELAY IN FILING OF THE APPEAL. WE PROCEED TO DECIDE THE APPEAL ON MERIT. 5. ON THE OTHER HAND, THE LD.DEPARTMENTAL REPRESENTATIVE (DR) OPPOSED THE APPLICATION AND SUBMITTED THAT THERE IS AN INORDINATE DELAY AND THERE IS NO SUFFICIENT CAUSE FOR CONDONING THE DELAY, THEREFORE, THE SAME MAY BE DISMISSED. 6. WE HAVE HEARD THE COUNSELS OF BOTH THE PARTIES AND WE ALSO PERUSED THE MATERIAL PLACED ON RECORD AND ORDERS PASSED BY THE REVENUE AUTHORITY AS WELL AS THE JUDGMENTS CITED BY THE PARTIES. FROM THE RECORDS, WE FIND THAT THE BELIEF OF THE ASSESSEE FOR NOT FILING THE APPEALS BEFORE THE TRIBUNAL WAS THAT, THEY WERE EXPECTING THAT THEIR CASES WILL BE TAKEN BY THE SETTLEMENT COMMISSION IN ALL ASSESSMENT YEARS. ACCORDING TO THE ASSESSEE, THEY HAVE HARBOURED THIS BELIEF ON THE ADVICE OF THEIR COUNSEL, WHOSE OPINION IS AVAILABLE ON THE PAPER BOOK. MOREOVER, UNDER THE SAME SET OF FACTS THE CO-ORDINATE BENCH OF ITAT HAS ALREADY TAKEN A VIEW AND HAS CONDONED THE DELAY UNDER THE IDENTICAL CIRCUMSTANCES IN ITA NO.1635 TO 1638 & 1655/AHD/2016 FOR A.Y. 2003-04 & 2001-02. SINCE THE CO-ORDINATE BENCH HAS ALREADY TAKEN A VIEW BY CONDONING THE DELAY, THEREFORE IN ORDER TO MAINTAIN M.D.INDUSTRIES P. LTD. VS. DCIT, CIR-1, SURAT/ITA NO.497-503 & 527/SRT/2019 /A.Y. 1999-00 TO 05-06 & 2000-01 PAGE 12 OF 12 JUDICIAL CONSISTENCY AND JUDICIAL DISCIPLINE, WE ALSO DEEM IT APPROPRIATE TO CONDONE THE DELAY IN FILING OF APPEALS, ACCORDINGLY, WE PROCEED TO DECIDE THE APPEAL ON MERITS. 7. SINCE THE LD.CIT(A) HAS NOT ADJUDICATED THE ISSUES ON MERITS RATHER, DISMISSED THE APPEALS ON ACCOUNT OF NON-MAINTAINABILITY. IN THE LIGHT OF ABOVE DECISION OF CO-ORDINATE BENCH OF ITAT, WE DEEM IT APPROPRIATE TO SET-ASIDE ORDERS OF THE LD.CIT(A) ON THESE APPEALS AND RESTORE ALL THESE TO THE FILE OF THE LD.CIT(A) FOR RE-ADJUDICATION. 8. IN THE RESULT, EIGHT APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. 9. ORDER PRONOUNCED IN THE OPEN COURT ON 06-12-2019. SD/- SD/- (O.P.MEENA) (SANDEEP GOSAIN) ( /ACCOUNTANT MEMBER) ( /JUDICIAL MEMBER) / SURAT, DATED : 6 TH DECEMBER , 2019/ S.GANGADHARA RAO, SR.PS COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT