- (1.) This appeal of the revenue for the assessment year 1986-87 is directed against the order, dt. 20-6-1989 of the Commissioner (Appeals)-II, Madras. The assessee has filed Cross-Objections Nos. 186 (Mad) 1990 and 10 (Mad) 1991 in the above appeal. Cross-Objection No. 10 (Mad) 1991 is the duplicate of the Cross Objection No. 18 (Mad) 1990. Therefore, at the time of hearing the assessee's authorised representative has requested for the withdrawal of the Cross Objection No. 10 (Mad) 1991. The Departmental Representative also agreed with the assessee's authorised representative. In these circumstances we dismiss the Cross-Objection No. 10 (Mad) 1991.
(2.) Cross-Objection No. 18 (Mad) 1990 has been filed by the assessee late by 151 days. The assessee's authorised representative moved a petition for condonation of delay along with the affidavit of A. Venkatachalam, director of the assessee-company. The authorised representative stated that the delay has occurred due to the fact that the petitioner has not filed the cross-objection within the time as the issue involved would have been academic in nature and the income computed after giving effect to the order of the Commissioner (Appeals) was a negative figure. But due to the retrospective amendment by the Finance Act, 1990, the relief in respect of cash assistance has been withdrawn and, therefore, the total income will become positive taxable income. In these circumstances the deduction under section 80HHC and the disallowance of guest house expenses become important for the petitioner because otherwise there will be huge tax liability on the petitioner. The Departmental Representative has not disputed the cause for the delay and agreed that there was retrospective amendment by the Finance Act, 1990.
(3.) We have given our careful consideration to the rival contentions. The issue before us whether the Tribunal should condone the delay on the facts and in the circumstances of the case before the Tribunal. Section 253 of the Income Tax Act, 1961 provides for an appeal to the Tribunal against the various decisions of the Income Tax authorities referred to therein. Sub-section (3) of section 253 provides the limitation of 60 days from the communication of the order sought to be appealed. Though there is limitation of sixty days under sub-section (3), sub-section (5) of section 253 empowers the Tribunal to admit an appeal or memorandum of cross-objections after the specified period if it is satisfied that there was sufficient cause for not presenting it within that period. In the present case it is a fact that there was a retrospective amendment by the Finance Act, 1990, by which ions 28(iiib) and 28(iiic) has been inserted with effect from 1-4-1967, and 1-4-1972, respectively and which is the point involved in the grounds of appeal filed by the revenue. By this amendment the cash assistance received by the assessee has been made chargeable to income-tax under the head 'Profits and gains of business or profession'. The assessee cannot foresee beforehand about the amendment to be carried out by the makers of law. The Supreme Court in the case of Collector, Land Acquisition v. Mst. Katiji and Ors., 1987 1 LLJ 500 has held as under about condonation of delay: "The legislature has conferred power to condone delay by enacting section 5 of the Limitation Act, 1963, in order to enable the courts to do 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. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step-motherly treatment when the State is the applicant praying for condonation of delay. When substantial justice and technical considerations 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 because of a non-deliberate delay." Following the principles enunciated by the Honble Supreme Court in the judgment cited supra, we are inclined to condone the delay which has taken place in the case of the assessee in filing the cross-objections. Therefore, the cross-objections filed by the assessee are admitted.;