Shri. Vinay Nandlal Kothari , Belgaum V. Joint Commissioner of Income Tax Range-1,

ITA 95/PAN/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6695 (ITAT-PANAJI)
• Duration Of Justice: 1 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-05-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 13-03-2014
• Assessment Year: misc
• Appeal Filed On: 08-11-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B BARTHAKUR LD
• Assessee Lawyers: S R KOKATE TAX CONSULTANT
• Keywords: Capital asset; Period of limitation; Reasonable cause; Fair market value; Competent authority; Condonation of delay
• Section: 2(14); 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI P. K. BANSAL, HONBLE ACCOUNTANT MEMBER AND SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER ITA NO.95/PNJ/2012 SHRI VINAY NANDLAL KOTHARI, L/H. TO LATE SHREE NANDLAL TEJMAL KOTHARI, MEDICAL SHOP CAMP, BELGAUM. PAN: AJTPK 0685M (APPELLANT) VS. THE JOINT COM MISSIONER OF INCOME TAX, BELGAUM RANGE - 1, BELGAUM. KARNATAKA. (RESPONDENT) APPELLANT BY : SHRI S.R. KOKATE, TAX CONSULTANT RESPONDENT BY : SHRI B.BARTHAKUR, LD. DR. DATE OF HEARING : 1 3 /3/2014 DATE OF PRONOUNCEMENT : 9 /5 /2014 O R D E R PER: D.T. GARASIA THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER PASSED U/S. 269F(6) OF THE INCOME TAX ACT 1961 BY INSPECTING ASSISTANT COMMISSIONER OF INCOME TAX, ACQUISITION RANGE, DHARWAR, DATED 23.3.1976. 2. THE FOLLOWING GROUNDS ARE RAISED IN THIS APPEAL WHICH READ AS UNDER: 1. THE COMPETENT AUTHORITY WHILE PASSING THE ORDER OF ACQUISITION HAS IGNORED THE FACT THAT THE PURCHASE OF PROPERTY IN QUESTION WAS THE ANCESTRAL PROPERTY AND WAS MORTGAGED TO THE TRANSFEROR RAMRAO B BAGALKOTKAR. THEREFORE IT IS NOTHING BUT GETTING BACK MORTGAGED PROPERTY FROM MORTGAGOR. 2. THE COMPETENT AUTHORITY HAS FAILED TO APPRECIATE THE FACT THAT THE TRANSACTION INVOLVED IN TRANSFER OF PROPERTY IS NOT A NORMAL TRANSACTION, B UT IT IS ONLY A REPAYMENT OF HIS LOAN MONEY AND GETTING BACK HIS PROPERTY WHICH WAS MORTGAGED. 3. THE COMPETENT AUTHORITY HAS FAILED TO APPRECIATE THE FACT THAT THE CONDITIONS PRESCRIBED UNDER 269 C THAT THERE WAS A MOTIVE TO FACILITATE THE EVASION OF TAX OF TRANSFEROR OR TRANSFEREE DID NOT EXIST IN THIS TRANSACTION BECAUSE TH E TRANSACTION OF TRANSFER INVOLVED GETTING BACK HIS OWN PROPERTY WHICH WAS MORTGAGED. 2 . ITA NO. 95/PNJ/2012 SHRI VINAY NANDLAL KOTHARI VS. JCIT 4. THERE BEING NO UNDER STATEMENT OF MARKET VALUE WITH A MOTIVE TO EVADE THE TAX AS CONTEMPLATED UNDER SECTION 269C; THE PROCEEDINGS U/S. 269F (6) ARE BAD IN LAW AND REQUIRES TO BE STRUCK DOWN. 3. THE SHORT FACTS OF THE CASE ARE THAT THE PROPERTY IN QUESTION IS SURV EY NO. 1750/1 A AND 1750/1B. ON 21/09/1944 SHRI UTTAMCHAND CHUNILAL SHAH AND ORS. MORTGAGED THIS PROPERTY TO MR. RAMRAO BINDURAO BAGALKOTKAR FOR RS. 16000/ - . THE ENTRY IN RESPECT OF THIS TRANSACTION IS ALS O FOUND IN THE SURVEY EXTRACT. SHRI UTTAMCHAND CHUNILAL SHAH DID NOT PAID THIS AMOUNT TO MR. RAMRAO BINDURAO BAGALKOTKAR WHO FILED A CIVIL SUIT FOR RECOVERY OF THE AMOUNT AND THE PROPERTY IN DISPUTE WAS TRANSFERRED UNDER A REGISTERED SALE DEED. THE COMPETENT AUTHORITY UNDER CHAPTER XXA OF THE INCOME TAX ACT , 1961 HA S ISSUED THE SHOW CAUSE NOTICE U /S. 269D (A) OF THE ACT. THE COMPETENT AUTHORITY HAS GIVEN SHOW CAUSE NOTICE AND ACQUIRED THE PROPERTY. THE ASSESSEE (TRANSFEREE) IS REQUIRED TO BE 30,000/ - IN INSTALLMENT. THE STATEMENT OF COMPROMISE WAS ALSO FILED BEFORE THE CIVIL COURT AND THE COURT PASSED A DECREE ON 02/01/1960 DIRECTING TO THE MORTGAGERS TO PAY RS. 30,000/ - IN INSTALLMENT . THE MORTGAGER COULD NOT COMPLY WITH THE ORDER OF THE COURT AND ENTIRE AMOUNT OF RS. 30,000/ - WHICH DID NOT PAID AND MORTGAGER PROPERTY WAS AUCTIONED BY THE COURT AND MR. RAMRAO BINDURAO BAGALK OTKAR WAS PURCHASED THE PROPERTY FOR RS.39,539/ - ON 03/02/1973. THEREAFTER, THE PROPERTY RE - ACQUIRED BY FAMILY MEMBERS AND SMT. GENDABAI KOTHARI, WHO HAS HELD TO ACQUIRE THIS PROPERTY. MR. VINAY NANDLAL KOTHARI HAS FILED THE WRIT PETITION BEFORE THE KARNATAKA HIGH COURT AND IT WAS WITHDRAWN, THEREAFTER , MATTER WENT TO THE SUPREME COURT AND THE SUPREME COURT IN HIS ORDER HAS DISMISSED THE APPEAL. THE ASSESSEE HAS FILED THIS APPEAL AGAINST THE ORDER OF ACQUISITION U /S. 269F(6). 3.1. THE ASSESSEE HAS ALSO MOVED AN APPLICATION FOR CONDONATION OF DE LAY UNDER THE PROVISIONS OF SECTION 269F OF THE I. T. ACT. THE ORDER U/S. 269 F (6) WAS PASSED BY INSPECTING ASSISTANT COMMISSIONER OF INCOME TAX ACQUISITION RANGE DHARWAD ON 23.03.1976. THEN ON E MR. N.V. SHIVANGI CHARTERED ACCOUNTANT APPEARED BEFORE THE COMPETENT AUTHORITY IN CONNECTION WITH ABOVE PROCEEDINGS. WHEN T HE 3 . ITA NO. 95/PNJ/2012 SHRI VINAY NANDLAL KOTHARI VS. JCIT PROCEEDINGS WERE GOING ON, ASSESSEES FA THER LATE SHRI NANDLAL KHOTHARI WAS OF THE AGE OF JUST 22 YEARS. MY GRANDFATHER AND HIS 8 BROTHERS WERE NOT MUCH LEARNED AND COMPETENT ENOUGH TO UNDERSTAND THE INCOME TAX MATTERS AND ALSO THE IMPLICATION OF THE ACQUISITION PROCEEDINGS U/S 269F OF THE INCOME TAX ACT. THE PROPERTY WHICH HAS ALREADY THERE WERE 18 TENANTS APART FROM 8 BROTHERS OF MY GRANDFATHER WERE ALL HAVING INTEREST IN THIS PROPERTY. CONSEQUENT TO THE ACQUISITION PROCEEDINGS U/S. 269F THEY WERE ONLY WORRIED ABOUT HOW MUCH COMPENSATION THEY WILL GET AND WHAT WILL HAPPEN TO THEIR RIGHT TO STAY IN THAT PROPERTY. THE THEN CHARTER A CCOUNTANT WHO WAS LOOKING AFTER THE INCOME TAX MATTERS DID NOT ADVISE MY FATHER TO FILE AN APPEAL U/S. 269G BEFORE THE INCOME TAX APPELLANT TRIBUNAL AGAINST THE ORDER U/S. 269F (6) WHICH WAS A MOST APPROPRIATE ACTION AT THAT PARTICULAR TIME INSTEAD OF THE TENANTS OCCUPYING THE PROPERTY WENT BEFORE THE APPELLATE TRIBUNAL IN APPEAL AGAINST THE ORDER U/S. 269F WHICH WAS DISMISSED AS NOT MAINTAINABLE. THUS, THE COURSE OF ACTION FROM THEN ONWARDS STARTED ON A DIFFERENT FOOTING CONCENTRATING MAINLY ON THE AMOUNT OF COMPENSATION TO BE RECEIVED AND THE PROTECTION OF TENANCY RIGHT FOOTING THE CASE IN CIVIL COURT AND ONWARDS UPTO THE APEX COURT. THUS, THE MAIN ISSUE OF FIGHTING BEFORE THE ITAT ON THE MERITS OF THE ORDER U/S. 269F (6) REMAINED TO BE UNATTENDED AND IT WAS ONLY BECAUSE OF NON ADVISE AND LACK OF PROPER GUIDANCE OF THE CHARTER ACCOUNTANT WHO HAS HANDLING THE ISSUE. THE ASSESSEES FATHER WAS A HEARD PATIENT AND SUFFERING FROM DIABETES AND HE DIED ON HEART ATTACK ON 28.02.2009. THE ASSESSEE HAS FILED THIS AP PEAL BEFORE THE TRIBUNAL AND TO CONDONE THE DELAY. 4. THE L EARNED AR HAS FILED THE WRITTEN SUBMISSION WHICH READ AS UNDER: THE APPEAL INVOLVES IN A FIRST PLACE CONDONATION OF DELAY OF 36 YEARS AND SECONDLY DECIDING THE CASE ON MERITS OF THE ISSUE. AS REGARDS CONDONATION OF DELAY I SUBMIT THAT MY FATHER LATE SHRI. NANDLAL KHOTHARI WHO WAS FIGHTING AGAINST THE ORDER OF COMPETENT AUTHORITY WAS ILL - ADVISED AND THE MATTER WAS TAKEN FIRST TO THE COURT FOR CLAIMING HIGHER COMPENSATION ETC. THE PROPERTY WAS OCCUPIED BY MANY TENANTS WHO ALSO WENT UP TO THE SUPREME COURT FIGHTING THE CASE FOR PROTECTION OF THEIR TENANCY RIGHTS. THE APPELLANT FOR THE FIRST TIME FILED A WRIT PETITION IN THE HIGH COURT OF KARNATAKA (W/P NO. 505). WHEREIN THE APPLICATION OF CBDT C IRCULAR NO. 455 WAS PRAYED TO BE INVOKED. AS PER THE SAID BOARD CIRCULAR ACQUISITION PROCEEDINGS ARE REQUIRED TO BE DROPPED, IF THE APPARENT CONSIDERATION OF THE PROPERTY IS 4 . ITA NO. 95/PNJ/2012 SHRI VINAY NANDLAL KOTHARI VS. JCIT RS. 5 IAKH OR LESS. IN THE CASE OF APPELLANT THE APPARENT CONSIDERATION IS ONLY RS . 45,000. THE HIGH COURT REJECTED OUR CONTENTION ON THE GROUND THAT PROCEEDINGS HAVE BECOME FINAL. ORDER OF THE HIGH COURT IS FOUND IN THE PAPER BOOK ON PAGES 86 - 93. SUBSEQUENTLY THIS ORDER HAS BEEN UPHELD BY THE SUPREME COURT BY DISMISSING OUR APPEAL AN D THE ORDER OF THE SUPREME COURT IS FOUND ON PAGE NO. 94 OF THE PAPER BOOK. I AM ENCLOSING HEREWI TH GROUNDS RAISED BEFORE THE HIG H COURT AND SUPREME COURT FOR THE KIND PERUSAL OF THE HONBLE ITAT. IT IS VERY CLEAR THAT THE MERIT OF THE CASE WHETHER ACQUISI TION PROCEEDINGS U/S 269 ITSELF WERE JUSTIFIED WAS NEVER CHALLENGED BEFORE ANY COURTS. AS WE HAVE BEEN FIGHTING BEFORE THE VARIOUS COURTS RIGHT FROM 1976 TILL 2012, THE APPELLANT NEVER IGNORED OR NEGLECTED TO PURSUE THE MATTER. BUT UNFORTUNATELY THE APPELL ANT WENT ON FIGHTING ON WRONG FOOTINGS WITHOUT UNDERSTANDING THAT THE RIGHT THING TO DO WAS FILLING AN APPEAL U/S 269 G BEFORE THE ITA T. THERE IS NO TAINT OF MALAFIDE OR ELEMENT OF RECKLESSNESS OR RUSE ON OUR PART. THE APPELLANT THEREFORE HUMBLY PRAY BEFOR E THE HONBLE ITAT TO CONDONE THE DELAY THOUGH THE PERIOD OF DELAY IS TOO LONG. I ONCE AGAIN REQUEST THE HONBLE ITAT TO REFER MY PETITION FOR CONDONATION OF DELAY IN THE FORM OF AFFIDAVITS DATED: 17.11.2012 AND 11.12.2012 WHEREIN DETAILED SUBMISSIONS ARE MADE. ON HUMANITARIAN GROUND ALSO THE ISSUE INVOLVES ACQUIRING THE PROPERTY JUST FOR RS. 45,000 AND MAKING THE FAMILY OF THE ASSESSEE TO SUFFER IMMENSE LOSS. I FURTHER SUBMIT THAT TILL TODAY THE DEPARTMENT HAS NOT PAID ANY AMOUNT OF COMPENSATION PAYABLE U / S 269 J EVEN AFTER THE LAPSE OF 36 YEARS. AS REGARDS THE MERITS OF THE CASE THE ACQUISITION PROCEEDINGS U/S 269 C ARE LEGALLY TO BE INITIATED ONLY WHEN THERE IS A TRANSFER OF PROPERTY FOR THE CONSIDERATION LESSER THAN THE FAIR MARKET VALUE AND WITH THE OBJECT OF: A. FACILITATING THE REDUCTION OR EVASION OF THE LIABILITY OF THE TRANSFEROR TO PAY TAX UNDER THIS ACT IN RESPECT OF ANY INCOME ARISING FROM THE TRANSFER; OR B. FACILITATING THE CONCEALMENT OF ANY INCOME OR ANY MONEYS OR OTHER ASSETS WHICH HAVE NOT BEEN OR WHICH OUGHT TO BE DISCLOSED BY THE TRANSFEREE FOR THE PURPOSE OF THE INDIAN INCOME - TAX ACT, 1922 (11 OF 1922), OR THIS ACT OR THE WEALTH - TAX ACT, 1957 ( 27 OF 1957). IN OUR CASE THERE WAS NO SUCH SITUATION BECAUSE THE PROPERTY PURCHASED IS O UR OWN FAMILY PROPERTY WHICH WAS MORTGAGED TO ONE MR. BAGALKOTHAR FOR RS. 16,000 IN THE YEAR 1944. THE LOAN AMOUNT WAS NOT PAID AND THE MORTGAGEE APPROACHED THE COURT FOR RECOVERY. FINALLY IN COURT ORDERED AUCTION, THE MORTGAGEE HIMSELF PURCHASED THE PROPE RTY F OR RS.39,539 ON 3 RD FEB 1973. IMMEDIATELY AFTER THAT THERE WAS SOME NEGOTIATION BETWEEN OUR FAMILY AND THE MORTGAGEE AND OUR OWN PROPERTY WAS PURCHASED BACK FOR THE RS. 45,000 ON 26.02.1973 THAT IS AFTER ONLY 23 DAYS WHICH IS A SUBJECT MATTER OF ACQUISITION PROCEEDINGS. HENC E THE PROPERTY IN QUESTION IS OUR OWN PROPERTY COMING BACK TO US AND THEREFORE THE REQUIREMENT OF LAW U/S 269C WHEREIN SITUATION FOR EVASION OF TAX AND CONCEALMENT OF INCOME PROVIDED ARE TOTALLY ABSENT IN OUR CASE. HENCE THE WHOLE ACQUISITION PROCEEDINGS I TSELF ARE ILLEGAL AS THERE IS NO ELEMENT OF EVASION OF TAX OR CONCEALMENT OF INCOME EXISTS. CONSIDERING THESE FACTS I HUMBLY PRAY BEFORE THE HONBLE ITAT TO CONSIDER THE FACTS SYMPATHETICALLY AND STOP THE DEPARTMENT IN ACQUIRING UNDESERVINGLY THE PROPERT Y IN THE INTEREST OF JUSTICES. I ONCE AGAIN HUMBLY PRAY THE ITAT TO CONDONE THE DELAY AND ADMIT TH E APPEAL FOR HEARING ON MERITS. 5. THE LEARNED DR OBJECTED TO IT. 5 . ITA NO. 95/PNJ/2012 SHRI VINAY NANDLAL KOTHARI VS. JCIT 6. WE HAVE HEARD THE RIVAL CONTENTION OF BOTH THE PARTIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE , WE FIND THAT IN THE INSTANT CASE THE PROPERTY IN QUESTION IS S UBJECT TO ACQUISITION U/S. 269D (1) OF THE INCOME TAX ACT AND COMPETENT AUTHORITY HAS ULTIMATELY PASSED AN ORDER OF ACQUISITION ON 23.03.1976 IN ACCORDANCE WITH SECTION 269F(6) OF THE ACT. THE SAID ORDER OF ACQUISITION WAS NOT CHALLENGED EITHER THE 1 ST PETITIONER HEREIN OR THE OTHER PETI TIONERS AS ON TODAY . THUS, T HE SAID ORDER HAS ATTENDED THE FINALITY IN SO FAR AS THE TENANTS ARE CONCERNED. THE TENANTS WE RE OCCUPYING THE SAID PREMISES AND HAS CHALLENGED THE ORDER O F ACQUISITION BEFORE INCOME TAX APPELLATE TRIBUNAL BUT THE T RIBUNAL HAS REJECTED THE APPEAL FILE D BY THE TENANT ON THE GROUND THAT SAME IS NOT MAINTA INABLE. T HEREAFTER , THE MATTER HAS TRAVELLED UP TO SUPREME COURT AND SUPREME COURT HAS DISMISSED THE APPEAL. BEFORE SUPREME COURT MR. NAN D ALAL TEJM AL KOTHARI WAS PARTY TO IT AND MR. NANDLAL TEJMAL KOTHARI IS TRANSFEREE AND NOW THE ASSESSEE BEFORE US IS THE SON OF MR. NANDLAL TEJMAL KOTHARI. AFTER HEARING ALL THE PARTIES THE SUPREME COURT HAS DISMISSED THE APPEAL OF THE ASSESSEE. MR. NANDALAL TEJMAL KOTHARI, WHO WAS P ARTY TO THE PROCEEDINGS AND THE MATTER HAS DECIDED UP TO SUPREME COURT AND SUPREME COURT HAS TAKEN THE CONSCIENCE VIEW IN CIVIL APPEAL NO. 152 4 OF 1 986 , WHEREIN THE FOLLOWING PARTIES WERE HEARD WHICH ARE REPRODUCED AS UNDER: PARTIES IN WRIT PETITION NOS. 11353 TO 11364 OF 1985 BETWEEN: 1. HIRALAL NEMCHAND SHAH, MAJOR,RESIDING AT CHUNILAL COMPOUND, STATION ROAD, BIJAPUR. 11353/85 2. SMT. NEELAVVA W/O RAMACHANDRA NIKAM, MAJOR, REST DO - 11354/85 3. PRABHULING KARABASAPPA NAGARAL, MAJOR, REST DO - 11355/85 4.GURUPADAYYA MALLAYYA HOSMATH, MAJOR, REST - DO - 11356/85 5. SMT. PARVATHIBAI W/O KONDIRAM SALE, MAJOR, REST - DO - 11357/85 6. SUBRAO GOVINDRAO MANGALORE, MAJOR, REST - DO - 11358/85 7. RANGAKPPA CHANNABASAPPA KOTAGI, MAJOR, REST - DO - 11359/85 8. MALLAPPA IRAPPA KOL HAR, MAJOR, REST - DO - 11360/85 9.BINDURAO MAHADEVAPPA UDACHAN, MAJOR, REST - DO - 11361/85 10. SMT. RAMABAI W/O BANDOPANT ALIAS DAGADOPANT NIKKAMBE, MAJOR, REST - DO - 11362/85 11. BHASKAR VASUDEVARAO KULKARNI, MAJOR, REST - DO 11363/85 12. GURUPADDAPPA G.PATIL, MAJOR, REST DO - (BY SRI W.K. JOSHI FOR PETITIONERS.) 11364/85 AND: 6 . ITA NO. 95/PNJ/2012 SHRI VINAY NANDLAL KOTHARI VS. JCIT 1. UNION OF INDIA, BY ITS SECRETARY, FINANCE DEPARTMENT, MINISTRY OF FINANCE, NEW DELHI. 2. INSPECTING ASSISTANT COMMISSIONER, (ACQUISITION RANGE,) BANGLORE. 3. INSPECTING ASSISTANT COMMISSIONER, (ACQUISITION RANGE), DHARWAR. 4. G.MUTHUKRISHNAN, EXECUTIVE ENGINEER, BANGALORE CENTRAL DIVISION - II, 23/24, INFANTRY ROAD, BANGALORE - 1. (BY SRI G. SARANGAN, SPECIAL STANDING COUNSEL FOR RESPONDENT S) PARTIES IN WRIT PETITIN NUMBER 11570 OF 1985 BETWEEN: NANDALAL TAJMAL KOTHARI , CHEMISTS & DRUGGISTS, RAMDEV GALLI, BELGAUM, REPRESENTED BY THE G.P.A., HOLDER SAKHALCHAND CHUNILAL SHAH, SON OF CHUNILAL, AGED ABOUT 53 YEARS. (BY SRI K.S.RAMABHADRAN AND SRI K.N.S. PRASAD FOR PETITIONER. AND: 1. THE INSPECTING ASSISTANT COMMISSIONER OF INCOME - TAX ACQUISITION RANGE, DHARWAR. 2. THE INSPECTING ASSISTANT COMMISSIONER OF INCOME - TAX ACQUISITION RANGE, BANGALORE. 3. THE UNION OF INDIA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, NEW DELHI. RESPONDENTS. (BY SRI G. SARANGAN, SPECIAL STANDING COUNSEL FOR RESPONDENTS) MOREOVER, WE FIND THAT BEFORE KARNATAKA HIGH COURT, MR. NANDALAL TE JMAL KOTHARI AND ORS. WERE PARTY TO IT WHICH IS ON PAGE 86 OF THE PAPER BOOK. WE FIND FROM THIS DOCUMENTARY EVIDENCE THAT ONCE HONBLE KARNATAKA HIGH COURT HAS HELD THAT THE PROCEEDING TAK EN PLACE U /S. 269F( 6) IS LEGAL AND IT HA S BEEN DECIDED ON 23.3.1976 , THAT DECISION BECAME FINAL. LOOKING TO THE ABOVE FACTS, WE FIND THAT INTERESTINGLY THE ASSESSEE HAS PRODUCED THE ORDER OF ACQ UISITION OFFICER ON PAGE 46 OF HIS PAPER BOOK WHEREIN THE INSPECTING ASSISTANT COMMISSIONER OF INCOME TAX, ACQUISIT ION RANGE, DHAR WAR, T HE COMPETENT AUTHORITY HAS PASSED THE OR D ER HOLDING AS UNDER: FROM THE FOREGOING, IT WILL BE CLEAR THAT THE FAIR MARKET VALUE OF THE IMMOVABLE PROPERTY UNDER CONSIDERATION WOULD BE NOT LESS THAN RS. 1,40,000 AS AGAINST THE APPARENT CONSIDERATION OF ONLY RS. 45,000. THUS IT WOULD BE CLEAR THAT THE FAIR MARKET VALUE OF THE IMMOVABLE PROPERTY WOULD EXCEED THE APPARENT CONSIDERATION AT LEAST BY 25% OF SUCH APPARENT CONSIDERATION, IF NOT MORE. THIS SHALL BE CONCLUSIVE PROOF THAT THE REAL 7 . ITA NO. 95/PNJ/2012 SHRI VINAY NANDLAL KOTHARI VS. JCIT CONSIDERATION AGREED TO BETWEEN THE PARTIES HAD NOT BEEN TRULY STATE D IN THE INSTRUMENT OF TRANSFER. THE IMMOVABLE PROPERTY UNDER CONSIDERATION IS A CAPITAL ASSET WITHIN THE MEANING OF SECTION 2(14) OF INCOME TAX ACT, 1961 AND THE PROFITS ARISING ON THE SA LE OF THE SAME WOULD BE LIABLE TO CAPITAL GAINS TAX. THEREFORE, ANY UNDERSTATEMENT OF REAL CONSIDERATION IN THE TRANSFER DOCUMENT WOULD DEFINITELY FACILITATE THE TRANSFEROR TO REDUCE OR EVADE HIS LIABILITY TO CAPITAL GAINS TAX IN RESPECT OF THE TRANSFER. I N THE CASE OF THE TRANSFEREE ALSO THE REBUTTABLE PRESUMPTION THAT THE UNDERSTATEMENT OF THE REAL CONSIDERATION IN THE TRANSFER DOCUMENT HAD BEEN DONE WITH A VIEW TO FACILITATE HIM TO EVADE TAXES IN THE MANNER LAID DOWN IN SECTION 269 C(1)(B) OF THE INCOME TAX ACT, 1961 HAS NOT BEEN REBUTTED WITH ANY EVIDENCE LEAVE ALONE CONVINCING EVIDENCE. THE MERE ASSERTION THAT THE PRICE PAID IS WHAT HAS BEEN SHOWN IN THE SALE DOCUMENT CANNOT BE ACCEPTED IN THE LIGHT OF THE SPECIAL RULES OF EVIDENCE INTRODUCED UNDER CHAP TER XXA OF THE INCOME TAX ACT, 1961 THROUGH SECTION 269C(2)(B) UNLESS THE CONTRARY IS SHOWN. FURTHER THE ABOVE ASSERTION IS ONLY A SELF - SERVING STATEMENT WITHOUT ANY INDEPENDENT EVIDENCE. THUS ALL THE REQUIREMENTS OF SECTION 269F(6) O F THE INCOME TAX ACT, 1961 ARE SATISFIED IN THIS CASE AND THEREFORE I HEREBY PASS AN ORDER FOR THE ACQUISITION OF THE IMMOVABLE PROPERTY UNDER CONSIDERATION UNDER SECTION 269 F(6) OF THE INCOME TAX ACT, 1961. THIS ORDER IS ISSUED AFTER OBTAINING THE APPROVAL OF THE COMMISSIONER OF INCOME TAX, KARNATAKA - I, BANGALORE. 13. ANY APPEAL AGAINST THIS ORDER WOULD LIE TO THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH, BANGALORE AND THE SAME SHOULD BE FILED WITHIN 45 DAYS FROM THE DATE OF THE ORDER OF A PERIOD OF 30 DAYS FROM THE DA TE OF SERVICE OF THE ORDER ON THE PERSON CONCERNED, WHICHEVER PERIOD EXPIRED LATER. 14. ORDERS AS REGARDS THE COMPENSATION PAYABLE SHALL FOLLOW AS AND WHEN THE ORDER BECOMES FINAL. FROM THIS ABOVE ORDER THE ASSESSE E WAS ADVISED THAT MR. NANDALAL TEJMAL KOTHARI WHO IS THE FATHER OF MR. VIN AY NANDLAL KOTHARI WHO IS APPELLANT BEFORE US WAS PARTY TO THAT PROCEEDING. NOW MR. NANDALAL TEJMAL KOTHARI WAS DIED AND HIS SON WANTED TO PURSUE THE APPEAL BEFORE INCOME TAX APPELLATE TRIBUNAL. ON T HE GROUND THAT HIS FATHER WAS UNABLE TO FILE THE APPEAL BEFORE TRIBU NAL, T HEREFORE, HE HAS FILED THIS APPEAL BEFORE US. LOOKING TO THIS ABOVE FACT S WE ARE OF THE VIEW THAT THE ASSESSEE HAS SHOWN THE REASON FOR CONDONATION OF DELAY BUT WE FIND THAT THE MATT ER I S ALREADY SETTLED BY APEX COURT. T HEREFORE, WE ARE OF THE VIEW THERE IS NO REASON FOR CONDONE OF DELAY TO F ILE THE APPEAL BEFORE TRIBUNAL AGAINST THE ORDER PASSED U/S. 269F(6) B Y INSPECTING ASSISTANT COMMISSION ER OF INCOME TAX, RANGE DHARWAR ( COMPETENT AUTHORITY ) ON 23 . 0 3.1976. WE FIND THAT THE ASSESSEE HAS RELIED UPON THE VARIOUS DECISION, WHEREIN THE ASSESSEE HAS NOT FILED THE APPEAL BUT 8 . ITA NO. 95/PNJ/2012 SHRI VINAY NANDLAL KOTHARI VS. JCIT HERE IN THIS CASE A SSESSEE HAS ALREADY EXHAUSTED ALL THE REMEDIES, THEREFORE, IN OUR OPINION, THERE IS NO REASON FO R CONDONATION OF DELAY . DURING THE COURSE OF HEARING THE LEARNED AR HAS RELIED UPON THE VARIOUS DECISION S WHICH READ AS UNDER : 1. COLLECTOR, LAND ACQUISITION VS MST KATIJI AND ORS 167 ITR 471(SC): APPEAL (TRIBUNAL) - CONDONATION OF DELAY - SUFFICIENT CAUSE= SUFFICIENT CAUSE FOR THE PURPOSE OF CONDONATION OF DELAY SHOULD BE INTERPRETED WITH A VIEW TO DO EVEN - HANDED JUSTICE ON MERITS IN PREFERENCE TO APPROACH WHICH SCUTTLES A DECISION ON MERITS - T HE POWER TO CONDONE DELAY IS CONFERRED WITH A VIEW TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO LITIGANTS BY DISPOSING OF THE CASE ON MERITS - THERE IS NO WARRANT FOR ACCORDING A STEP MOTHERLY TREATMENT WHEN THE STATE IS THE APPLICANT PRAYING FOR CON DONATION OF DELAY. THIS CASE PERTAIN S TO THE STATE WHEREIN THE STATE HAS SHOWN THE SUFFICIENT REASON , BUT IN THE INSTANT CASE , ASSESSEE IS IN APPEAL BEFORE US. 2. BHARAT AUTO CENTER V/S COMMISSIONER OF INCOME TAX: APPEAL [CIT (A)] - CONDONATION OF DELAY - REASONABLE CAUSE - SINCE AN IMPORTANT LEGAL POINT RELATING TO JURISDICTION OF THE ASSESSING AUTHORITY WAS INVOLVED, THE ASSESSEE SOUGHT LEGAL OPINION OF SEVERAL COUNSEL WHICH TOOK A LONG TIME AND THEN A WRIT PETITION WAS FILED BUT SUBSEQUENTLY APPEAL WAS FILED. AFORESAID REASON APPEAR TO BE SUFFICIENT CAUSE FOR THE DELAY - DELAY OUGHT TO HAVE BEEN CONDONED - MATTER IS REMANDED BACK TO THE CIT(A) TO DECIDE THE APPEAL ON MERIT. IN THIS CASE THE ASSESSEE SOUGHT LEGAL OPINI ON OF SEVERAL COUNSEL WHICH TOOK A LONG TIME. THEREFORE, THERE WAS A REASONABLE CAUSE HELD BY THE HIGH COURT BUT IN THE CASE OF HAND IT IS NOT THE CAUSE OF THE ASSESSEE THAT SEVERAL YEARS HAS TAKEN PLACE FOR OBTAINING THE LEGAL OPINION, THEREFORE, THIS WIL L NOT HELP TO THE ASSESSEE. 3. DINESH NAGINDAS SHAH VS. COMMISSIONER OF INCOME TAX 273 ITR 229 (GUJ ) : CONDONATION OF DELAY - REASONA BLE CAUSE - PETITIONERS OMITTED TO CLAIM EXEMPTION UNDER S. 5(VI) UNDER A WRONG BELIEF THAT WITH EFFECT FROM ASST. YR. 1994 - 1995 , EXEMPTION WAS ALLOWED ONLY IN RESPECT OF RESIDENTIAL HOUSE PROPERTY AND NOT IN RESPECT OF ANY COMMERCIAL PROPERTY - LATER, AFTER DISCOVERING THE CORRECT LEGAL POSITION, PETITIONERS FILED PETITIONERS UNDER S. 25 FOR SEVERAL Y EAR CLAIMING SAID RELIEF - CWT REJECTED THE APPLICATION FOR THE DELAY IN RESPECT OF ALL THE ASSESSMENT YEARS - NOT JUSTIFIED - IN VIEW OF VARIOUS AMENDMENTS TO THE PROVISION FOR GRANT OF SAID EXEMPTION, IT CANNOT BE SAID THAT, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE DELAY UPTO 3 YEARS WAS UNREASONABLE - CWT WAS REQUIRED TO PREFER THE CAUSE OF JUSTICE BY TAKING UP THE REVISION PETITIONS ON MERITS IMPUGNED ORDERS QUASHED AND SET ASIDE AND MATTER REMANDED TO CWT FOR DECIDING THE REVISION PETITIONS FOR ASST YRS. 1997 - 98 TO 2000 - 0 1 ON MERITS. 9 . ITA NO. 95/PNJ/2012 SHRI VINAY NANDLAL KOTHARI VS. JCIT IN THIS CASE THE DELAY IS ONLY FOR THREE YEARS AND IT WAS CONDONED BUT IN THE INSTANT CASE THE FACTS ARE DIFFERENT. 4 . AREVAT & INDIA LTD VS. JOINT COMMISSIONER OF INCOME TAX 287 ITR 555 (MAD): CONDONATION OF DELAY - REASONABLE CAUSE - IN EXERCISING DISCRETION UNDER S.5 OF LIMITATION ACT, THE COURT SHOULD ADOPT A PRAGMATIC APPROACH - IN CONSTRUING THE EXPRESSION SUFFICIENT CAUSE THE PRINCIPLE OF ADVANCING SUBSTANTIAL JU STICE IS OF PRIME IMPORTANC E - ASSESSEE COULD NOT PREFER APPEAL WITHIN TIME ON ACCOUNT OF ADVICE ILLEGALLY GIVEN BY ITS COUNSEL - DIRECTOR OF THE ASSESSEE - COMPANY HAS SWORN TO AN AFFIDAVIT IN THIS REGARD - TRIBUNAL SIMPLY REFUSED TO ACCEPT THE AFFIDAVIT WITHOUT GIVING A FINDING AS TO WHETHER THE ASSESSEE HAS SHOWN SUFFICIENT CAUSE FOR THE DELAY - ORDER OF THE TRIBUNAL IS SET ASIDE AND THE MATTER IS REMITTED BACK TO THE TRIBUNAL FOR DISPOSAL OF THE SAME ON MERITS. IN THE INSTANT CASE THE ASSESSEE COULD NOT PREFER APPEAL WITHIN TIME ON ACCOUNT OF ADVICE ALLEGEDLY GIVEN BY ITS ADVOCATE, BUT IT HAS ALREADY BEEN INFORMED TO THE ORIGINAL OWNER OF THE PROPERTY NANDALAL TEJMAL KOTHARI IN THE ORDER UNDER SECTION 269F(6) THAT THE APPEAL LIES AGAINST THE ORDER TO THE ITAT, BANGA LORE BENCH AND SAME HAS TO BE FILED WITHIN THE 45 DAYS FROM THE DATE OF THE ORDER. THE ASSESSEE WAS SPECIFICALLY ADVISE D IN THE ORDER ITSELF, THEREFORE, IT WILL NOT BE HELPFUL TO THE ASSESSEE. 5. SUBHASH MALIK VS. COMMISSIONER OF INCOME TAX 325 ITR 243: CONDONATION OF DELAY - REASONABLE CAUSE - APPEAL UNDER S.246A WAS DISM ISSED ON 25TH SEP., 2012 BY CIT (A) - APPLICATION UNDER S. 154 FOR THE RECTIFICATION OF THE ORDER DT. 25TH SEP., 2002 WAS FILED ON 23 DEC., 2002 BUT THE SAME WAS REJECTED BY CIT (A) BY ORDER D T. 20TH OCT., 2003 - ASSESSEE FILED AN APPEAL ON 28TH NOV., 2003 BEFORE THE TRIBUNAL AGAINST THE ORDER DT.25 TH SEP., 2002 PASSED BY THE CIT (A) ASSESSEE EXERCISED DUE DILIGENCE AND WAS NOT IN FILING THE APPEAL AGAINST THE ORDER DT.25TH SEP, 2002 - RECORD OF THE CASE SHOWS THAT THE ASSESSEE HAD TAKEN THE MATTER WITH HIS COUNSEL AND PROCEEDINGS TAKEN FOR RECTIFICATION OF CIT(A)S ORDER ON HIS ADVISE TOOK A LONG TIME WHICH RESULTED THE DELAY IN FILING THE APPEAL - TRIBUNAL NOT JUSTIFIED IN REFUSING TO CONDONE THE DELAY . IN THE INSTANT CASE THE ASSESSEE COULD NOT PREFER APPEAL WITHIN TIME ON ACCOUNT OF ADVICE ALLEGEDLY GIVEN BY ITS ADVOCATE, BUT IT HAS ALREADY BEEN INFORMED TO THE ORIGINAL OWNER OF THE PROPERTY NANDALAL TEJMAL KOTHARI IN THE ORDER UNDER SECTION 269F(6) THAT THE APPEAL LIES AGAINST THE ORDER TO THE ITAT, BANGALORE BENCH AND SAME HAS TO BE FILED WITHIN THE 45 DAYS FROM THE DATE OF THE 10 . ITA NO. 95/PNJ/2012 SHRI VINAY NANDLAL KOTHARI VS. JCIT ORDER. THE ASSESSEE WAS SPECIFICALLY ADVISED IN THE ORDER ITSELF, THEREFORE, IT WILL N OT BE HELPFUL TO THE ASSESS EE. 6. O.P KATHAPALIA VS LAKHMIR SINGH AIR 1984 SUPREME COURT 1744 : THE HONBLE SUPREME COURT HELD THAT IF THE REFUSAL TO CONDONE THE DELAY RESULTS IN GRAVE MISCARRIAGE OF JUSTICES, IT WOULD BE A GROUND TO CONDONE THE DELAY. IN THE INSTANT CASE THE ASSESSEE COULD NOT PREFER APPEAL WITHIN TIME ON ACCOUNT OF ADVICE ALLEGEDLY GIVEN BY ITS ADVOCATE, BUT IT HAS ALREADY BEEN INFORMED TO THE ORIGINAL OWNER OF THE PROPERTY NANDALAL TEJMAL KOTHARI IN THE ORDER UNDER SECTION 269F(6) TH AT THE APPEAL LIES AGAINST THE ORDER TO THE ITAT, BANGALORE BENCH AND SAME HAS TO BE FILED WITHIN THE 45 DAYS FROM THE DATE OF THE ORDER. THE ASSESSEE WAS SPECIFICALLY ADVISED IN THE ORDER ITSELF, THEREFORE, IT WILL NOT BE HELPFUL TO THE ASSESSEE. 7. NEW INDIA INSURANCE COMPANY VS SMT SHANTI MISRA AIR 1976 SC 237 : HONBLE S UPREME COURT HELD THAT DISCRETION GIVEN BY SECTION S SHOULD NOT BE DEFINED OR CRYSTALLIZED SO AS TO CONVERT A DISCRETIONARY MATTER INTO A RIGID RULE OF LAW. THE EXPRESSION SUFFICIENT CA USE SHOULD RECEIVE A LIBERAL CONSTRUCTION . IN THE INSTANT CASE THE ASSESSEE COULD NOT PREFER APPEAL WITHIN TIME ON ACCOUNT OF ADVICE ALLEGEDLY GIVEN BY ITS ADVOCATE, BUT IT HAS ALREADY BEEN INFORMED TO THE ORIGINAL OWNER OF THE PROPERTY NANDALAL TEJMAL KO THARI IN THE ORDER UNDER SECTION 269F(6) THAT THE APPEAL LIES AGAINST THE ORDER TO THE ITAT, BANGALORE BENCH AND SAME HAS TO BE FILED WITHIN THE 45 DAYS FROM THE DATE OF THE ORDER. THE ASSESSEE WAS SPECIFICALLY ADVISED IN THE ORDER ITSELF, THEREFORE, IT WILL NOT BE HELPFUL TO THE ASSESSEE. 8. SHANKUNTALA DEVI JAIN VS KUNTAL KUMARI AIR 1969 SC 575: THE HONBLE SUPREME COURT HELD THAT UNLESS WANT OF BONAFIDES OF SUCH INACTION OR NEGLIGENCE AS WOULD DEPRIVE A PARTY OF THE PROTECTION OF SECTION 5 IS PROVED, THE APPLICATION MUST NOT BE THROWN OUT OR ANY DELAY CANNOT BE REFUSED TO CONDONED. IN THE INSTANT CASE THE ASSESSEE COULD NOT PREFER APPEAL WITHIN TIME ON ACCOUNT OF ADVICE ALLEGEDLY GIVEN BY ITS ADVOCATE, BUT IT HAS ALREADY BEEN INFORMED TO THE ORIGIN AL OWNER OF THE PROPERTY NANDALAL TEJMAL KOTHARI IN THE ORDER UNDER SECTION 269F(6) THAT THE APPEAL LIES AGAINST THE ORDER TO THE ITAT, 11 . ITA NO. 95/PNJ/2012 SHRI VINAY NANDLAL KOTHARI VS. JCIT BANGALORE BENCH AND SAME HAS TO BE FILED WITHIN THE 45 DAYS FROM THE DATE OF THE ORDER. THE ASSESSEE WAS SPECIFICALLY ADVISED IN THE ORDER ITSELF, THEREFORE, IT WILL NOT BE HELPFUL TO THE ASSESSEE. 9. CIT VS SITA WORLD TRAVE LS (INDIA) LTD 5 TAX CORP (DT) 48934 (DELHI): ON THE OTHER HAND, SECTION 14 CONTAINED IN PARA III OF THE LIMITATION ACT DOES NOT RELATE TO EXTENSION OF THE PERIOD OF LIMITATION, BUT RELATES TO EXCLUSION OF CERTAIN PERIOD WHILE COMPUTING THE PERIOD OF LIMITATION. NEITHER SUB - SECTION [3) OF SECTION 31 OF THE AC ACT NOR ANY OTHER PROVISION OF THE AC ACT EXCLUDE THE APPLICABILITY OF SECTION 14 OF THE LIMITATION ACT TO APPLICATIONS UNDER SECTION 34 [1) OF THE AC ACT. NOR WILL THE PROVISO TO SECTION 34 (3) EXCLUDE THE APPLICATION AS SECTION 14, AS SECTION 1 4 IS NOT A PROVISION FOR EXTENSION OF PERIOD OF LIMITATION. HAVING REGARD TO SECTION 29 (2) OF THE LIMITATION ACT, SECTION 14 OF THE ACT WILL BE APPLICABLE TO AN APPLICATION UNDER SECTION 34 [1) OF THE AC ACT, THE TIME DURING WHICH APPLICANT WAS PROSECUTIN G SUCH APPLICATION BEFORE THE WRONG COURT IS EXCLUDED, PROVIDED THE PROCEEDING IN THE WRONG COURT WAS PROSECUTED BONAFIDE, WITH DUE DILIGENCE. IN THE INSTANT CASE THE ASSESSEE COULD NOT PREFER APPEAL WITHIN TIME ON ACCOUNT OF ADVICE ALLEGEDLY GIVEN BY ITS ADVOCATE, BUT IT HAS ALREADY BEEN INFORMED TO THE ORIGINAL OWNER OF THE PROPERTY NANDALAL TEJMAL KOTHARI IN THE ORDER UNDER SECTION 269F(6) THAT THE APPEAL LIES AGAINST THE ORDER TO THE ITAT, BANGALORE BENCH AND SAME HAS TO BE FILED WITHIN THE 45 DAYS F ROM THE DATE OF THE ORDER. THE ASSESSEE WAS SPECIFICALLY ADVISED IN THE ORDER ITSELF, THEREFORE, IT WILL NOT BE HELPFUL TO THE ASSESSEE. 10. N BALA KRISHANA VS KRISNAMURTHY 1998 (7) SCC 123: THE PRIMARY FUNCTION OF THE COURT IS TO ADJUDICATE THE DISPUTE BE TWEEN THE PARTIES AND TO ADVANCE SUBSTANTIAL JUSTICE. THE TIME LIMIT FIXED FOR APPROACHING THE COURTS IN DIFFERENT SITUATIONS IS NOT GOOD CAUSE. RULES OF LIMITATIONS ARE NOT MEANT TO DESTROY THE RIGHTS OF THE PARTIES. THEY ARE MEANT TO SEE THAT PARTIES DO NOT RESORT TO DESTROY TACTIC BUT SEEK THEIR REMEDY FOR THE REDRESS OF THE LEGAL INJURY SO SUFFERED. THE LAW OF LIMITATION IS THUS FOUNDED ON THE PUBLIC POLICY. IN THE INSTANT CASE THE ASSESSEE COULD NOT PREFER APPEAL WITHIN TIME ON ACCOUNT OF ADVICE ALLEG EDLY GIVEN BY ITS ADVOCATE, BUT IT HAS ALREADY BEEN INFORMED TO THE ORIGINAL OWNER OF THE PROPERTY NANDALAL TEJMAL KOTHARI IN THE ORDER UNDER SECTION 269F(6) THAT THE APPEAL LIES AGAINST THE ORDER TO THE ITAT, BANGALORE BENCH AND SAME HAS TO BE FILED WIT HIN THE 45 DAYS FROM THE DATE OF THE 12 . ITA NO. 95/PNJ/2012 SHRI VINAY NANDLAL KOTHARI VS. JCIT ORDER. THE ASSESSEE WAS SPECIFICALLY ADVISED IN THE ORDER ITSELF, THEREFORE, IT WILL NOT BE HELPFUL TO THE ASSESSEE. 11. SHRIMATI PRABHA VS . RAM PRAKASH KALRA (SUPPL) SSC 339: THE SUPREME COURT TOOK THE VIEW THAT THE COURT SHOULD NOT ADOPT ANY INJUSTICE ORIENTED APPROACH IN REJECTING THE APPLICATION FOR THE CONDONATION OF DELAY. IN THE INSTANT CASE THE ASSESSEE COULD NOT PREFER APPEAL WITHIN TIME ON ACCOUNT OF ADVICE ALLEGEDL Y GIVEN BY ITS ADVOCATE, BUT IT HAS ALREADY BEEN INFORMED TO THE ORIGINAL OWNER OF THE PROPERTY NANDALAL TEJMAL KOTHARI IN THE ORDER UNDER SECTION 269F(6) THAT THE APPEAL LIES AGAINST THE ORDER TO THE ITAT, BANGALORE BENCH AND SAME HAS TO BE FILED WITHIN THE 45 DAYS FROM THE DATE OF THE ORDER. THE ASSESSEE WAS SPECIFICALLY ADVISED IN THE ORDER ITSELF, THEREFORE, IT WILL NOT BE HELPFUL TO THE ASSESSEE. 12. BRIJI SINGH VS KANSHI RAM AIR 1917 PC 156: IT WAS OBSERVED THAT TRUE GUIDE FOR A COURT TO EXERCISE THE DISCRETION U/S S IS WHETHER THE APPLICANT IS ACTED WITH REASONABLE DILIGENCE IN PROSECUTING THE APPEAL. IN THE INSTANT CASE THE ASSESSEE COULD NOT PREFER APPEAL WITHIN TIME ON ACCOUNT OF ADVICE ALLEGEDLY GIVEN BY ITS ADVOCATE, BUT IT HAS ALREADY BEEN INFORMED TO THE ORIGINAL OWNER OF THE PROPERTY NANDALAL TEJMAL KOTHARI IN THE ORDER UNDER SECTION 269F(6) THAT THE APPEAL LIES AGAINST THE ORDER TO THE ITAT, BANGALORE BENCH AND SAME HAS TO BE FIL ED WITHIN THE 45 DAYS FROM THE DATE OF THE ORDER. THE ASSESSEE WAS SPECIFICALLY ADVISED IN THE ORDER ITSELF, THEREFORE, IT WILL NOT BE HELPFUL TO THE ASSESSEE. 7. WE HAVE GONE THROUGH THE ABOVE DECISION OF HONBLE COURT BUT WE FIND THAT IN THIS CASE THE HONBLE KARNATAKA HIGH COURT HAS ALREADY DECIDED THAT THE PROCEEDING TAKEN PLACE U/S 269F(6) IS LEGAL AND IT HAS BEEN DECIDED ON 23.3.1976 AND THAT DECISION BECOME FINAL. THEREAFT ER, AGAINST THE ORDER OF HIGH COURT THE MATTER WENT T O SUPREME COURT AND H ONBLE SUPREME COURT HAS ALSO DISMISSED THE PETITION OF THE ASSESSEES FATHER, THEREFORE, THE TRIBUNAL HAS NO POWER TO CONDONE THE DELAY IN RESPECT OF THE MATTER WHICH IS AL READY SETTLED BY THE APEX COURT. 13 . ITA NO. 95/PNJ/2012 SHRI VINAY NANDLAL KOTHARI VS. JCIT T HEREFORE, WE DISMISS THE CONDONATION OF DELAY APP LICATION. HENCE, THE APPLICATION FOR CONDONATION OF DELAY IS DISMISSED AND ASSESSEES APPEAL IS ALSO DISMISSED. 7 . IN THE RESULT , THE APPEAL FILED BY ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN T HE OPEN COURT ON 9 .5 .2014. S D / - S D / - ( P.K. BANSAL) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE : PANAJI / GOA DATED : 9 .5 .2014 P.S. - *PK* COPY TO : ( 1 ) APPELLANT ( 2 ) RESPONDENT ( 3 ) CIT CONCERNED ( 4 ) CIT(A) CONCERNED ( 5 ) D.R ( 6 ) GUARD FILE TRUE COPY, BY ORDER