The Kolkata bench of the Income Tax Appellate Tribunal recently held that the delay in filing appeal can be condoned if the delay was occurred due to non-availability of a proper professional advice. Accordingly, the Tribunal condoned delay of 2380 days, on an application file by the appellant who challenged the order of the Commissioner of Income Tax (Appeals) through which the appellate authority refused to admit the same.
Coming to the facts of the case, the assesse-company’s returns were duly accepted by the Department after allowing them deduction under section 80HHC of the Income Tax Act. Subsequently, re-assessment proceedings were initiated and completed against the assesse on by relying upon CBDT Circular F.No.153/193/2004 TPT which clarified that profit on sale of DEPB licences are not covered under the provisions of Section 28(iiia). Therefore, it was concluded that the assesse is not entitled to get the benefit of the export incentives under section 80HHCC(3) since assessee’s entire export Incentives Includes profit on sale of DEPB. The assesse has advised by its legal representative that no purpose will be served in filing appeal.However the position was made clear by the Supreme Court in case of Topman Exports Ltd, after which the assessee was advised to file the appeal which was the reason for long delay and accordingly it has been requested that the delay may be condoned. However, the CIT(A) has rejected the appeal, and therefore, the assesse approached the Tribunal for relief.
The Tribunal cited a catena of decisions in assessees’ favour and held that “It is thus clear that the assessee had guided by a profession advice did not think it fit to file any appeal against the impugned orders of the AO. It is clear from the record that the AO issued a letter dated 15.01.2013 demanding the payment of arrears of taxes arising out of the order of assessment u/s ,147 r.w.s.143(3) of the Act. It is also seen that in that connection the assessee had met the present lawyer Shri Subash Agarwal who advised the assessee the correct legal position pursuant to the decision of the Hon’ble Supreme Court in the case of Topman Exports (supra). Thereafter the appeal has been filed by the assessee before CIT(A). It is clear from the evidence on record that the delay in filing the appeal was due to non availability of a proper professional advice to the assessee.”
Read the full text of the order below.
