B.R.Baskaran, Member (A) -
(1.) BOTH these appeals filed by the assessee are directed against the two separate orders dated 01 -02 -2000 passed by Ld. CIT(A) -XIX, Mumbai and they relate to the assessment years 1994 -95 and 1996 -97. In both the years, the assessee is aggrieved by the decision of Ld. CIT(A) in rejecting the deduction claimed by the assessee u/s. 80 -O of the Act.
(2.) BOTH the appeals are barred by limitation by 2984 days. We heard the rival contentions on this preliminary issue first. Hence, we proceed to adjudicate the same. In a nutshell, the contention of the Ld. A.R. was that the assessee was following the advices given by his Chartered Accountant, which ultimately turned out to be incorrect, and hence the assessee should not suffer for the improper advices given by his Counsel. Further it was submitted that the words "sufficient cause" should be construed liberally and the Courts should adopt a pragmatic approach for advancing substantial justice to the assessee. The Ld. A.R. further submitted that the improper guidance given the Chartered Accountant was sincerely followed by the assessee and the same would constitute sufficient cause for condoning the delay. The Ld. A.R. placed his reliance on host of case law in support of the above said submissions. On the contrary, the Ld. D.R. strongly opposed the submissions made by the Ld. A.R. and submitted that the explanations furnished by the assessee cannot be considered as "sufficient cause" for condoning the delay.
2.1 Various case law relied upon by the assessee only lay down the principle that the delay, if supported by a sufficient cause, needs to be condoned. Hence, the assessee is required to show that there existed sufficient cause in filing the appeals belatedly. Hence, the condonation of delay would depend upon the reasons so furnished by the assessee to explain the delay. Generally a liberal approach is required to be followed while examining the reasons furnished by the assessee. Hence, the end result of the present question would ultimately depend upon the reasons furnished by the assessee.
We proceed to set out the facts surrounding this issue first and also the reasons furnished by the assessee to explain the delay in filing the impugned appeals. Since the reasons furnished by the assessee for both the years under consideration are identical, for the sake of convenience, we extract below the submissions made by the assessee in the affidavit dated 19 -07 -2011 filed before us for assessment year 1994 -95.
"3) I say that I had received the order dated 01.02.2000 passed by the CIT (A) on 20.03.2003. I say that for the reasons mentioned below, the appeals are being filed on 20.07.2011. Therefore, there is a delay of, two thousand nine hundred and eighty four (2,984) days in filing the appeals before the Tribunal.
4) I say that during the material period, I was employed with BHF Bank AG of Germany, as their Representative in Mumbai. As I was rendering my services from India to a foreign employer I had claimed deduction under section 80 -O of the Act with respect to the salary earned by me from my employer. I say that my claim of deduction under section 80 -O of the Act was disallowed -by the A.O. for A.Y. 1993 -94 and confirmed by the CIT (A). Against the order of the CIT (A), I had preferred an appeal before the Tribunal.
5) I say that all my income tax affairs including the appeal matters were handled by my Chartered Accountant M/s. Rajesh Rajeev and associates from 1997 to November 2006, as they substantially discontinued their tax practice with individuals and started to practice with only corporate client. Thereafter, one chartered accountant Mr. Sunil Chaudhari took over all my taxation affairs. However, in April 2007 Mr. Chaudhari unfortunately expired in a road accident. Thereafter, I appointed M/s. P.A. Dhanbhoora & Co. who was handling my taxation work from May 2007 till February 2011. I say that as I was in full time employment with the Bank and as I am not well versed with income tax aspects, I have always completely relied upon my chartered accountants for attending to all my tax matters including the regular income tax, assessment and appeal matters and advising me in that regard.
6) I say that the assessing officer ("the A.O.") passed the assessment order for A.Y. 1994 -95 and A.Y. 1996 -97 on 25.03.1997 and 25.03.1999, respectively, denying the claim u/s. 80 -O of the Act. For the A.Y. 1994 -95 and 1996 -97, I filed the appeal before the CIT (A) on 09.04.1997 and 29.04.1999, respectively. The CIT (A) dismissed the appeal filed before him for both the years.
7) I say that when my appeal for A.Y. 1994 -95 and A.Y. 1996 -97 were dismissed by the CIT (A), my then Chartered Accountant M/s. Rajesh Rajeev and Associates advised me not to file further appeals before the Tribunal for both the years to avoid multiplicity of litigation as the issue of sec. 80 -O involved in the appeals for AY -1994 -95 and 1996 -97 was identical to the issue involved in the appeal filed by me before the Tribunal for AY 1993 -94 which was then pending before Tribunal. I was further advised by my chartered accountant that after adjudication of the appeal for AY 1993 -94 by the Tribunal, I could move a rectification application before the AO to bring the assessment order in conformity with the decision of the Tribunal.
8). I say that the Hon'ble Tribunal, vide order dated 29.6.2006, restored the matter back to the file of the AO to examine the issue of allowability of deduction under section 80 -O of the Act. Thereafter, the AO passed an order on 19.2.2009 allowing my claim of deduction under section 80 -O of the Act.
9) I say that the order giving effect to the Tribunal's order was received by me on somewhere in May 2009. Immediately after receiving the order of the A.O., I preferred rectification application before the A.O. to rectify the order for A.Y. 1994 -95 and A.Y. 1996 -97 on 15.07.2009. (Annexed hereto and marked as Annexure -'A' is the copy of the rectification application dated 15.07.2009)
10) I say that after continuous follow up with the department and also writing letter under the Right to Information Act, finally, vide order dated 14.05.2010, the A.O. rejected the rectification application. After receipt of the order, I was following up continuously with my Chartered accountant M/s. Rajesh Rajeev and Associates, who were handling my appeal for A.Y. 1993 -94 and who had advised me prefer rectification application before the A.O., for further course of action. On 18.04.2011, I received a letter from M/s. Rajesh Rajeev and Associates where in they mentioned that the Department was not correct in rejecting my rectification application and advised me to follow up the matter with the department. (Annexed hereto and marked as Annexure - 'B' is the copy of the letter dated 15.04.2011 received from M/s. Rajesh Rajeev & Associates Chartered Accountant)
11) I say that, thereafter, I consulted another chartered accountant, Mr. Yatin K. Desai, who, after going through the entire history of my case, advised me to file appeals before the Tribunal against the orders of the CIT(A), along with application for condonation of delay.
12) I say that, it was under these facts and circumstances, which were beyond my control, that the appeals could not be filed before the Hon'ble Tribunal were not filed within the limitation period.
13) I say that I am a law abiding citizen and nowhere in past I was guilty of any negligence or latches for any of my income tax obligations.
I say that all that has been stated above is true to the best of my knowledge and belief Solemnly affirmed on this 19th day of July, 2011"
(3.) IN support of the averments made in the affidavit, the assessee has filed a letter dated 15 -04 -2011 furnished by M/s. Rajesh Rajeev & Associates, Chartered Accountants and also an affidavit dated 22 -08 -2013 furnished by one of the partners of the above said CA firm. For the sake of convenience, we extract below the contents of the said affidavit.
"4. That for Assessment Years 1991 -92 and 1993 -94, the Appellant had claimed deduction under section 80 -O for the salary income earned by him. However, the claim of the Appellant was disallowed by the Assessing Officer ["A.O."] for the Assessment Year 1993 -94. The Appeals were also dismissed by the Commissioner of Income -tax (Appeals). Against the order of the CIT(A), the Appellant filed appeals before the Hon'ble Income -tax Appellate Tribunal ["ITAT"] being I.T.A. nos. 4398/Mun/1997 and 4399/Mum/1997.;