M/s. India International, New Delhi v. ACIT, New Delhi

ITSSA 79/DEL/2009 | misc
Pronouncement Date: 27-04-2010 | Result: Allowed

Appeal Details

RSA Number 7920116 RSA 2009
Assessee PAN AAACC8061G
Bench Delhi
Appeal Number ITSSA 79/DEL/2009
Duration Of Justice 5 month(s)
Appellant M/s. India International, New Delhi
Respondent ACIT, New Delhi
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 27-04-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 27-04-2010
Assessment Year misc
Appeal Filed On 26-11-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D NEW DELHI BEFORE SHRI G.E. VEERABHADRAPPA : VICE PRESIDENT AND I.P. BANSAL : JUDICIAL MEMBER STAY NO. 108/DEL/09 ( IN ITA NO. 73/DEL/09 ) BLOCK PERIOD: 1-4-1996 TO 17-1-2002 & IT(SS)A NO. 73/DEL/09 M/S COCO DRY FRUITS INDIA PVT. LTD. VS. ACIT CEN . CIRCLE 25 F-A/B-1 EXTN. MOHAN CO-OP INDL. AREA CENTRAL CIR . 25 MATHURA ROAD NEW DELHI. NEW DELHI PAN/ GIR NO. AAACC8061G STAY NO. 109/DEL/09 ( IN ITA NO. 74/DEL/09 ) BLOCK PERIOD: 1-4-1996 TO 17-1-2002 & IT(SS)A NO. 74/DEL/09 RAMESH KHANNA VS. ACIT CEN. CIR-25 480 KATRA ISHWAR BHAWAN NEW DELHI. KHARI BAWALI DELHI. PAN/ GIR NO. AASPK0719Q STAY NO. 110/DEL/09 ( IN ITA NO. 75/DEL/09 ) BLOCK PERIOD: 1-4-1996 TO 17-1-2002 & IT(SS)A NO. 75/DEL/09 KAMAL KHANNA VS. ACIT CEN. CIR-25 480 KATRA ISHWAR BHAWAN NEW DELHI. KHARI BAWALI DELHI. PAN/ GIR NO. AASPK0283H STAY NO. 111/DEL/09 ( IN ITA NO. 76/DEL/09 ) BLOCK PERIOD: 1-4-1996 TO 17-1-2002 & IT(SS)A NO. 76/DEL/09 RAJESH KHANNA VS. ACIT CEN. CIR-25 480 KATRA ISHWAR BHAWAN NEW DELHI. KHARI BAWALI DELHI. PAN/ GIR NO. AASPK0277B ITA NO. 73 & 6 OTHERS M/S COCO DRY FRUITS INDIA PVT. LTD. & OTHERS 2 STAY NO. 112/DEL/09 ( IN ITA NO. 77/DEL/09 ) BLOCK PERIOD: 1-4-1996 TO 17-1-2002 & IT(SS)A NO. 77/DEL/09 SMT. HARSH KHANNA VS. ACIT CEN. CIR-25 480 KATRA ISHWAR BHAWAN NEW DELHI. KHARI BAWALI DELHI. PAN/ GIR NO. H-3 STAY NO. 113/DEL/09 ( IN ITA NO. 78/DEL/09 ) BLOCK PERIOD: 1-4-1996 TO 17-1-2002 & IT(SS)A NO. 78/DEL/09 PRADEEP KHANNA VS. ACIT CEN. CIR-25 480 KATRA ISHWAR BHAWAN NEW DELHI. KHARI BAWALI DELHI. PAN/ GIR NO. AGCPK0272E STAY NO. 114/DEL/09 ( IN ITA NO. 79/DEL/09 ) BLOCK PERIOD: 1-4-1996 TO 17-1-2002 & IT(SS)A NO. 79/DEL/09 M/S INDIA INTERNATIONAL VS. ACIT CEN. CIR-25 480 KATRA ISHWAR BHAWAN NEW DELHI. KHARI BAWALI DELHI. PAN/ GIR NO. AASPK0277B ( APPELLANT ) ( RESPONDENT ) APPELLANT S BY : SHRI AJAY WADHWA FCA RESPONDENT BY : SHRI B.K. GUPTA SR. DR O R D E R PER G.E. VEERABHADRAPPA V.P. : THE ABOVE CAPTIONED APPEALS FILED BY DIFFERENT ASS ESSEES OF THE VERY SAME GROUP AND INVOLVING IDENTICAL ISSUE FOR CONSIDERATION AR ISE OUT OF SEPARATE ORDERS OF THE CIT(APPEALS)-I NEW DELHI IN RESPECT OF BLOCK ASSE SSMENTS FRAMED UNDER CHAPTER ITA NO. 73 & 6 OTHERS M/S COCO DRY FRUITS INDIA PVT. LTD. & OTHERS 3 XIV-B OF THE INCOME-TAX ACT 1961. . ALL THESE APPE ALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY A COMMON ORDER FOR THE SAKE OF CONVE NIENCE. 2. IT MAY BE MENTIONED THAT THE ASSESSEES IN THESE CASES HAVE FILED STAY PETITIONS REQUESTING THE TRIBUNAL TO STAY THE DISPUTED OUTSTA NDING DEMANDS AS A RESULT OF THESE PROCEEDINGS. THE REGISTRY HAS POINTED OUT THAT THES E APPEALS ARE TIME BARRED ALMOST ABOUT 4 YEARS AND ISSUED DEFECT MEMOS IN RESPECT OF THES E APPEALS. THE BENCH AT THE TIME OF HEARING THE STAY PETITIONS ORDERED FOR CONSOLIDATIO N OF ALL THE APPEALS AS WELL BECAUSE THE BENCH FELT THAT THE DELAY REQUIRES TO BE CONDONED F IRST BEFORE APPLICATION FOR STAY IS ENTERTAINED. WE THEREFORE POSTED BOTH THE APPEALS AND THE STAY PETITIONS TOGETHER AND THE SUBMISSIONS WERE HEARD. 2.1. THE FACTS ARE THAT THE 7 ASSESSEES MENTIONED IN THE CAUSE TITLE WERE SUBJECTED TO SEARCH AND SEIZURE OPERATION U/S 132 OF THE I.T. AC T ON 17-10-2002 AND IN RESPONSE TO THE NOTICE ISSUED U/S 158BC BLOCK RETURNS FOR THE PERI OD 1-4-1996 TO 17-10-2002 WERE FILED DECLARING NIL UNDISCLOSED INCOME. THE ASSESSING O FFICER HOWEVER FINALIZED THE BLOCK ASSESSMENTS IN ALL THE CASES ON 29-10-2004 DETERMI NING THE UNDISCLOSED INCOME AS UNDER: (I) PRADEEP KHANNA RS. 1 79 25 000/- (II) KAMAL KHANNA RS. 5 82 21 696/- (III) RAJESH KHANNA RS. 1 53 88 390/- (IV) RAMESH KHANNA RS. 1 42 70 280/- (V) COCO DRY FRUITS INDIA (P) LTD. RS. 62 66 320/- (VI) INDIA INTERNATIONAL RS. 6 20 71 240/- (VII) HARSH KHANNA RS. 16 98 820/- 2.2. ON 26-11-2004 APPEALS WERE FILED BEFORE THE C IT(A) NEW DELHI AGAINST THE BLOCK ASSESSMENT ORDERS. DURING THE PENDENCY OF APP EALS ALL THE SEVEN ASSESSEES FILED SETTLEMENT APPLICATIONS U/S 245C(1) OF THE I.T. ACT IN APRIL/MAY 2005 BEFORE THE INCOME- TAX SETTLEMENT COMMISSION PRINCIPAL BENCH NEW DEL HI. ON 13-5-2005 THE LEARNED CIT(A) WAS INFORMED ABOUT THE FILING OF SETTLEMENT APPLICATIONS AND HE WAS REQUESTED TO KEEP THE APPEAL PROCEEDINGS PENDING TILL THE DISP OSAL OF SETTLEMENT APPLICATIONS. WITHOUT WAITING FOR DISPOSAL OF THE SETTLEMENT APPLICATIONS THE CIT(A) PASSED THE IMPUGNED ORDERS IN ALL THE ABOVE CASES WITHOUT HEARING ANY OF THESE ASSESSEES. ITA NO. 73 & 6 OTHERS M/S COCO DRY FRUITS INDIA PVT. LTD. & OTHERS 4 2.3. THE ASSESSEE DID NOT FILE ANY APPEAL AGAINST T HE ORDER OF THE CIT(A) ON THE ADVICE GIVEN BY THE COUNSEL WHO REPRESENTED THE CASE THA T ONCE APPLICATIONS ARE FILED SETTLEMENT APPLICATIONS WOULD CERTAINLY BE ADMITTED U/S 245D(1) OF THE I.T. ACT BECAUSE OF THE INHERENT COMPLEXITY OF THE CASES AND THE CIT (A) WOULD NOT BE ABLE TO PASS ANY ORDERS THEREON. THE SETTLEMENT COMMISSION IN FACT P ASSED A COMBINED ORDER U/S 245D(1) ON 22-9-2006 BY WHICH ALL THE 7 APPLICATIONS WERE ADMITTED INVOLVING BLOCK ASSESSMENT YEARS 1997-98 TO 2002-03 AND ALL THE SEVEN ASSESSEE S WERE AWAITING FOR THE FINAL ORDERS U/S 245D(4) OF THE I.T. ACT TO BE PASSED BY THE SET TLEMENT COMMISSION. IN THE MEAN TIME THE FINANCE ACT 2007 MADE DRASTIC CHANGES IN THE PROVISION RELATING TO THE SETTLEMENT OF CASES WHEREBY SUB-SECTION (2D) OF SECTION 245D WAS SUBSTITUTED W.E.F. 1-6-2007 WHEREIN IT WAS PROVIDED THAT WHERE AN APPLICATION U /S 245C (A) HAS BEEN MADE BEFORE 1- 6-2007 AND AN ORDER ADMITTING THE APPLICATION HAS B EEN PASSED BUT FINAL ORDER U/S 245D(4) HAS NOT BEEN PASSED BEFORE 1-6-2007 SUCH APPLICATI ON SHALL NOT BE ALLOWED TO BE FURTHER PROCEEDED WITH UNLESS THE ADDITIONAL TAX ON THE INC OME DISCLOSED IN THE APPLICATION AND INTEREST THEREON HAS BEEN PAID ON OR BEFORE 31-7-2 007. SINCE THE ASSESSEES WERE NOT AWARE OF THE AMENDMENT MADE BY THE FINANCE ACT 200 7 AND COULD NOT PAY THE TAX AND INTEREST ON OR BEFORE 31-7-2007 THEIR APPLICATION S STOOD ABATED IN TERMS OF SECTION 245HA(1)(II) OF THE I.T. ACT. HOWEVER ASSESSEES CA ME TO KNOW OF THE ABATEMENT OF THEIR APPLICATIONS ONLY ON 29-10-2009. WHEN THE ASSESSEES CAME TO KNOW THAT THEIR APPLICATIONS HAVE BEEN ABATED AND SINE NO APPEAL PR OCEEDINGS WERE PENDING BEFORE THE CIT(A) AS HE HAD ALREADY DISPOSED OF THE APPEALS ALL THE 7 ASSESSEES IMMEDIATELY FILED APPEALS AGAINST THE EX PARTE ORDERS OF THE CIT(A) O N 26-11-2009 I.E. WITHIN ABOUT 30 DAYS FROM THE COMMUNICATION RECEIVED FROM THE SETTLEMENT COMMISSION REGARDING ABATEMENT OF THEIR SETTLEMENT APPLICATION. 2.4. THE FILING OF APPEALS BEFORE THE ITAT ON 26-1 1-2009 AGAINST EX PARTE ORDERS OF THE CIT(A) PASSED HAS RESULTED IN A DELAY OF MORE THAN 4 YEARS. ALL THE 7 ASSESSEES HAVE FILED CONDONATION PETITIONS STATING ABOVE FACTS A ND REQUESTED US TO CONDONE THE DELAY. 2.5. IT WAS THE COMMON PLEA OF THE ASSESSEES COUNS EL THAT APPEALS AGAINST CIT(A)S ORDERS COULD NOT BE FILED IN VIEW OF COUNSELS ADVI CE THAT THEIR SETTLEMENT APPLICATIONS ITA NO. 73 & 6 OTHERS M/S COCO DRY FRUITS INDIA PVT. LTD. & OTHERS 5 BEFORE THE SETTLEMENT COMMISSION WOULD NOT ONLY BE ADMITTED U/S 245D(1) BUT FINAL ORDERS WOULD ALSO BE PASSED BY THE SETTLEMENT COMMI SSION U/S 245D(4) OF THE I.T. ACT. BESIDES THEY WERE ALSO INFORMED THAT CIT(A) COULD N OT PASS ANY ORDER ONCE SETTLEMENT APPLICATIONS HAVE BEEN FILED BY THE ASSESSEES. SE TTLEMENT APPLICATIONS IN FACT WERE ADMITTED BY THE SETTLEMENT COMMISSION BY PASSING A COMBINED ORDER DATED 22-9-2006 U/S245D(1) OF THE ACT AND THE ASSESSEES WERE WAITIN G FOR THE FINAL ORDERS U/S 245D(4) OF THE ACT. HOWEVER DUE TO AMENDMENTS THAT WERE BROU GHT OUT BY THE FINANCE ACT 2007 APPLICATIONS STOOD ABATED. THE NONPAYMENT OF TAX ON ADDITIONAL INCOME DISCLOSED IN THE APPLICATIONS WAS A BONA FIDE MISTAKE AS THE ASS ESSEES WERE TOTALLY IGNORANT ABOUT THE DRASTIC CHANGE MADE BY THE FINANCE ACT 2007 PARTI CULARLY THE MANDATORY PAYMENT OF TAX AND INTEREST ON OR BEFORE 31-7-2007 FOR ALLOWING AP PLICATIONS TO BE FURTHER PROCEEDED WITH U/S245D(4) OF THE ACT. 3. THE LEARNED COUNSEL FOR THE ASSESSEE PLEADED THA T THE ASSESSEES ACTED IN GOOD FAITH IN A BONA FIDE MANNER ON THE BASIS OF THE ADVICE OF THE COUNSEL REPRESENTING THE CASE AND PLEADED THAT THE DELAY IN FILING OF APPEALS BEFORE THE TRIBUNAL WAS UNINTENTIONAL AND WAS A RESULT OF BONA FIDE LAPSE AND NOT KNOWING THE EXA CT IMPLICATIONS OF THE FINANCE ACT 2007. 3.1. THE LEARNED COUNSEL RELIED UPON THE DECISION O F SUPREME COURT IN THE CASE OF COLLECTOR LAND & ACQUISITION V. MS. KATIJI (1987) 167 ITR 471 FOR THE PROPOSITION OF LAW THAT WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CON SIDERATION ARE PITTED AGAINST EACH OTHER THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PRE FERRED FOR THE OTHER SIDE CANNOT CLAIM TO HAVE A VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF NON-DELIBERATE DELAY. RELIANCE WAS ALSO PLACED ON THE RATIO OF DECISIONS IN THE CASES OF AREVA T AND D INDIA LTD. VS. JCIT (2006) 287 ITR 555 (MAD.); AUTO CENTRE VS. STATE OF U.P. (2005) 278 ITR 2911 (ALL.); AND GUJARAT STATE FERTILIZERS & CHEMICALS LTD. VS. CIT (2005) 194 CTR (GUJ) 423. OUR ATTENTION WAS FURTHER DRAWN TO THE DECISION OF SUP REME COURT IN THE CASE OF N. BALAKRISHNAN VS. M. KRISHNAMURTHY AIR 1998 SC 3222. FOR ALL THE CONTENTIONS THAT ARE RAISED THE ASSESSEES HAVE FILED DETAILED AFFIDAVIT S REITERATING THE SAME STAND WHICH THE ASSESSEES COUNSEL HAS CANVASSED BEFORE US. ITA NO. 73 & 6 OTHERS M/S COCO DRY FRUITS INDIA PVT. LTD. & OTHERS 6 3.2. ON MERITS THE LEARNED COUNSEL PLEADED FOR AN OPPORTUNITY OF HEARING BEFORE THE CIT(A) AS THE ASSESSEES DID NOT APPEAR IN RESPONSE TO THE NOTICE ISSUED BEFORE THE CIT(A) BECAUSE THEY WERE CONVINCED THAT ONCE THEIR APPLICATIONS ARE ADMITTED BY THE SETTLEMENT COMMISSION APPEALS WOULD NOT BE TAKEN U P FOR HEARING. 4. THE LEARNED DR ON THE OTHER HAND STRONGLY OPPO SED THE CONDONATION OF DELAY IN ALL THESE CASES. ACCORDING TO HIM THERE IS NO REAS ONABLE CAUSE FOR CONDONATION OF DELAY. NEGLIGENCE AND CARELESSNESS OF THE ASSESSEE CANNOT BE TAKEN AS A REASONABLE CAUSE FOR CONDONATION. RELIANCE WAS PLACED ON THE DECISION OF BOMBAY HIGH COURT IN 173 TAXMAN 192. 5. WE HAVE CAREFULLY CONSIDERED RIVAL CONTENTIONS A ND GONE THROUGH THE RECORDS. FACTS OF THE CASE ARE NOT IN DISPUTE. ALL THE 7 ASS ESSEES WERE PART OF THE SAME GROUP AND WERE SUBJECTED TO SEARCH. IN RESPONSE TO NOTICE U/S 158BC ALL OF THEM FILED RETURN OF INCOME DECLARING NIL UNDISCLOSED INCOME AND THE A SSESSING OFFICER IN EACH OF THESE CASES ON THE BASIS OF MATERIAL FOUND IN THE COURSE OF SEARCH HAS FRAMED BLOCK ASSESSMENT U/S 158BC DETERMINING HUGE UNDISCLOSED INCOME AS S TATED EARLIER IN PARA 2.1. DURING THE PENDENCY OF APPEALS BEFORE THE CIT(A) ASSESSEES APPROACHED THE SETTLEMENT COMMISSION. IN FACT IMMEDIATELY AFTER FILING APPEA LS BEFORE THE CIT(A) THEY APPROACHED THE SETTLEMENT COMMISSION BY FILING THEIR RESPECTIV E APPLICATIONS. ON 13-5-2005 THE LEARNED CIT(A) WAS INFORMED ABOUT THE FILING OF THE APPLICATIONS BEFORE THE SETTLEMENT COMMISSION AND THERE WAS ALSO A REQUEST TO KEEP THE APPEAL PROCEEDINGS PENDING TILL THE DISPOSAL OF SETTLEMENT APPLICATIONS. NOT WAITING F OR THE DISPOSAL OF THE SETTLEMENT APPLICATIONS THE LEARNED CIT(A) HAS PASSED IMPUGNE D ORDERS IN ALL THE 7 CASES WITHOUT THE ASSESSEES HAVING BEEN HEARD VIRTUALLY WITHIN A MONTH FROM THE DATE OF HIS KNOWLEDGE THAT ASSESSEES HAVE ALREADY APPROACHED THE SETTLEM ENT COMMISSION IN VIEW OF THE COMPLEXITY OF THE CASES. IN FACT THE RECORD SHOWS T HAT COUNSEL HAD ADVISED ASSESSEES TO APPROACH THE SETTLEMENT COMMISSION AND IN FACT THE Y WERE ALSO ADVISED THAT THEIR APPEALS BEFORE THE CIT(A) WOULD NOT BE PROCEEDED T ILL DISPOSAL OF SETTLEMENT APPLICATIONS. IN FACT A COMBINED ORDER WAS PASSED B Y THE SETTLEMENT COMMISSION U/S ITA NO. 73 & 6 OTHERS M/S COCO DRY FRUITS INDIA PVT. LTD. & OTHERS 7 245D(1) ADMITTING ALL THE SETTLEMENT APPLICATIONS ON 22-9-2006. THAT MEANS THE CIT(A) HAS HURRIEDLY DISPOSED OF THE APPEALS ALTHOUGH HE W AS AWARE THAT SETTLEMENT APPLICATIONS WERE PENDING AT THAT TIME. 5.1. ASSESSEES WERE WAITING FOR THE FINAL ORDERS TO BE PASSED BY THE SETTLEMENT COMMISSION ON THEIR APPLICATIONS U/S 245D(4) OF THE I.T. ACT. EARLIER PAYMENT OF TAX AND INTEREST WAS NOT A REQUIREMENT. FOR THE FIRST TIME BY THE FINANCE ACT 2007 SUCH A PRESCRIPTION WAS MADE DEMANDING THE PAYMENT OF SUC H TAX AND INTEREST BEFORE 31-7-2007 AND IN THE EVENT OF NONPAYMENT OF SUCH TAX AND INT EREST APPLICATIONS COULD NOT BE PROCEEDED FURTHER IN TERMS OF SECTION 245D(2D) OF THE ACT. THE ASSESSEES IN THIS CASE HAD FILED SETTLEMENT APPLICATIONS MUCH EARLIER AND IN FACT THE INITIAL ADMISSION ORDER WAS PASSED EARLIER TO THE NEW PROVISION COMING INTO FOR CE. ASSESSEES WERE WAITING FOR THE FINAL ORDER TO BE PASSED U/S 245D(4). THE ASSESSEES WERE TOTALLY IGNORANT OF THESE AMENDMENTS AND THEY IN FACT WROTE LETTERS TO THE SE TTLEMENT COMMISSION REQUESTING THE DISPOSAL OF THESE APPLICATIONS BY PASSING FINAL ORD ERS U/S 245D(4). ONLY ON 29-10-2009 THE ASSESSEES WERE INFORMED THAT IN THE LIGHT OF TH E AMENDED PROVISIONS THEIR APPLICATIONS STOOD ABATED. IMMEDIATELY WITHIN 60 DAYS THEREFORE THE ASSESSEES FILED APPEALS BEFORE THE TRIBUNAL IMPLIEDLY MEANING THAT ALL ALONG ASS ESSEES WERE CARRYING A BONA FIDE IMPRESSION THAT THEIR APPLICATIONS WOULD BE DISPOSE D OF BY THE LAW THAT PREVAILED AT THE TIME WHEN THEY FILED SETTLEMENT APPLICATIONS. THE A BATEMENT OF THEIR APPLICATIONS WAS THUS A SURPRISE TO THEM AND WHEN IT BECAME CLEAR TH AT THEIR APPLICATIONS HAD BEEN ABATED THEY FILED PRESENT APPEALS AGAINST EX PARTE ORDERS OF THE CIT(A). IN OUR VIEW THIS IS A FIT CASE WHERE SUBSTANTIAL JUSTICE REQUIRES TO BE ADV ANCED AS DICTATED BY THE SUPREME COURT IN THE CASE OF COLLECTOR LAND & ACQUISITION VS. MS T. KATIJI (SUPRA). BESIDES MADRAS HIGH COURT IN THE CASE OF AREVA T AND D INDIA LTD. (SUPRA); AND ALLAHABAD HIGH COURT IN THE CASE OF AUTO CENTRE (SUPRA) RELIED UPON BY THE ASSESSEES HAVE CLEARLY STATED THAT A PRAGMATIC VIEW SHOULD BE TAKEN AND THERE SHOULD BE LIBERAL APPROACH SO AS TO ENSURE THAT SUBSTANTIVE RIGHTS ARE NOT DEFEATED ON THE BASIS O F TECHNICALITIES OF LIMITATION. IN FACT THE SUPREME COURT IN THE CASE OF STATE OF WEST BENGAL VS ADMINISTRATOR HOWRAH MUNICIPALITY AIR 1972 SC 749 WHILE CONSIDERING T HE SCOPE OF EXPRESSION SUFFICIENT CAUSE FOR CONDONATION OF DELAY HAS HELD THAT THE S AID EXPRESSION SHOULD RECEIVE A LIBERAL ITA NO. 73 & 6 OTHERS M/S COCO DRY FRUITS INDIA PVT. LTD. & OTHERS 8 CONSTRUCTION SO AS TO ADVANCE THE COURSE OF SUBSTAN TIAL JUSTICE WHEN NO NEGLIGENCE OR INACTION OR WANT OF BONA FIDE IS IMPUTABLE TO PARTY . AFTER ALL ONE MUST APPRECIATE THE CIRCUMSTANCES PREVAILING AT THAT TIME TO SEE OR JUD GE THE BONA FIDES OF THE ASSESSEE. 5.2. IN THESE CASES IN THE LIGHT OF THE FACTUAL B ACKGROUND IT CANNOT BE SAID THAT ASSESSEES WERE NEGLIGENT IN PREFERRING APPEALS BEFO RE THE ITAT. IT IS NOT A CASE OF TOTAL INACTION OR LACK OF BONA FIDE. IN FACT THE ASSESSEE S WERE VIGILANT. HOWEVER UNFORTUNATELY THEY COULD NOT UNDERSTAND THE EXACT IMPLICATION OF THE AMENDMENT MADE BY THE FINANCE ACT 2007. IN FACT THEY WERE GUIDED BY THE ADVICE GIVEN BY THEIR COUNSEL. ASSESSEES SHOULD NOT BE MADE TO SUFFER FOR A WRONG ADVICE IF ANY GIVEN BY THE COUNSEL. NO LITIGANT CAN BE BENEFITED BY LODGING AN APPEAL L ATE. REFUSING TO CONDONE DELAY IN A MERITORIOUS MATTER MAY RESULT IN INJUSTICE. AS AGAI NST THIS WHEN DELAY IS CONDONED THE HIGHEST THAT CAN HAPPEN IS THAT A CAUSE WOULD BE DE CIDED ON MERITS AFTER HEARING THE PARTIES. EVERY DAYS DELAY MUST BE EXPLAINED DOES NOT MEAN THAT A PEDANTIC APPROACH SHOULD BE MADE WHY NOT EVERY HOURS DELAY EVERY S ECONDS DELAY. THE DOCTRINE MUST BE APPLIED ON A RATIONAL COMMON SENSE PRAGMATIC MANNER . WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS ARE PITTED AGAINST EACH OT HER CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED. THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONED DELIBERATELY OR ON ACCOUNT OF CULPABLE NEGLIGENCE OR ON ACCOUNT OF MA LA FIDES. A LITIGANT DOES NOT STAND TO BENEFIT BY RESTORING TO DELAY. IN FACT HE RUNS A SE RIOUS RISK. IN ALL SUCH MATTERS IT IS NOT THE LENGTH OF THE DELAY THAT SHOULD MATTER BUT THE CAUS E FOR DELAY OR ITS BONA FIDE NATURE SHALL BE THE UTMOST CONSIDERATION. 5.3. IN THE LIGHT OF THE PRINCIPLES LAID DOWN BY TH E SUPREME COURT AND DIFFERENT HIGH COURT AS STATED ABOVE WE ARE OF THE OPINION THAT THE ASSESSEES HAD SUFFICIENT CAUSE FOR NOT PREFERRING APPEALS IN TIME BEFORE THE TRIBUNAL. WE CONDONE THE DELAY AND ADMIT THE APPEALS. SINCE THE ASSESSEES WERE NOT GIVEN FAIR AN D REASONABLE OPPORTUNITY OF BEING HEARD IN THE MATTER IN THE HANDS OF THE CIT(A) AS THE ASSESSEES HAVE HAD AN IMPRESSION THAT THEIR APPEALS WOULD NOT BE DECIDED TILL THE DI SPOSAL OF SETTLEMENT APPLICATIONS BEFORE THE SETTLEMENT COMMISSION THE ASSESSEES DID NOT B OTHER TO APPEAR BEFORE THE CIT(A). WE THEREFORE SET ASIDE THE IMPUGNED ORDERS OF CI T(A) AND RESTORE ALL THE APPEALS BACK ITA NO. 73 & 6 OTHERS M/S COCO DRY FRUITS INDIA PVT. LTD. & OTHERS 9 TO HIM WITH A DIRECTION TO DISPOSE OFF THE SAME ON MERITS AFTER GIVING ASSESSEES A FAIR AND REASONABLE OPPORTUNITY OF BEING HEARD IN THE MATTER . WE ORDER ACCORDINGLY. 5.4. SINCE WE HAVE RESTORED THE MATTER BACK TO THE FILE OF CIT(A) IN ALL THE APPEALS FOR DECISION AFRESH ON MERITS THE STAY PETITIONS FILED BY THE ASSESSEES HAVE BECOME INFRUCTUOUS AND STAND REJECTED ACCORDINGLY. 6. IN THE RESULT ALL THE APPEALS FILED BY THE ASSE SSEE STAND ALLOWED FOR STATISTICAL PURPOSES ONLY AND THE STAY PETITIONS FILED BY THE A SSESSEE STAND REJECTED BEING INFRUCTUOUS. ORDER PRONOUNCED IN OPEN ON 27-4-2010. SD/- SD/- (I.P. BANSAL) ( G.E. VEERABHADRAPPA ) JUDICIAL MEMBER VICE PRESIDENT DATED: 27 TH APRIL 2010. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR