Revenue has filed this appeal against order of CIT(A) dt. 23rd Feb., 2006 by taking following grounds of appeal: "1. On facts and in circumstances of case, learned CIT(A) erred in deleting addition of Rs. 68,26,535 by disallowing exemption under s. 10(35) claimed by assessee. On facts and in circumstances of case, learned CIT(A) erred in holding that all conditions prescribed in s. 94(7)." cross-objection has been filed by assessee late by 9 months and 1 5 days along with application for condonation of delay. At outset learned Authorised Representative requested for condonation of delay. In respect of cross-objection, he pointed out that assessee was advised by earlier counsel not to file cross-objection. Subsequently, when counsel was sent to assessee to advise them to file cross-objection on 28th Feb., 2007 and immediately assessee filed cross-objection before this Tribunal on 7th Sept., 2007. Reliance was placed on decision of Hon ble Supreme Court in case of Collector, Land Acquisition vs. Mst. Katiji (1987) 62 CTR (SC) 23: (1987) 167 ITR 471 (SC) for proposition of law that when substantial justice and technical consideration are pitted against each other, cause of substantial justice deserve to be preferred for other side cannot claim to have vested right in injustice being done because of non- deliberate delay. reliance was also placed on following decision of Areva T & D India Ltd. vs. Jt. CIT (2006) 203 CTR (Mad) 325: (2006) 287 ITR 555 (Mad). Reliance was also placed on decision of Allahabad High Court in case of Auto Centre vs. State of U.P. (2006) 204 CTR (All) 142: (2005) 278 ITR 291 (All) for proposition of law that in matter of condonation of delay pragmatic law should be taken and there should be liberal approach. learned Departmental Representative on other hand vehemently contended that delay could not be condoned. assessee is in New Delhi. notice for filing appeal was duly served on assessee. delay cannot be condoned merely on technical ground. After careful consideration and rival submissions, we find that assessee has been prevented by reasonable cause due to advice of earlier counsel not filing cross objection within permissible time. Advise given by counsel of assessee in our opinion is reasonable cause and person of ordinary prudenee is expected to rely on advise of counsel. We therefore condone delay and admit cross-objection filed by assessee. ITA No. 2057 only issue involved in both grounds relate to whether provision of s. 94(7) are applicable to case of assessee or not. brief facts of this appeal are that assessee has purchased Units/Bonds of IL and FS on 16th Dec., 2003 and sold on 17th March, 2004 while unit/bonds of Sundaram Mutual Fund were bought on 26th Dec., 2003 and sold on 29th March, 2004. dividends were declared in each of case on 16th Dec., 2003 and 26th Dec., 2003 respectively. case of AO is that since assessee had bought units/bonds within three months prior to date of declaration of dividend i.e., record date and sold them subsequently. Although after expiry of three months provision of s. 94(7) are applicable and assessee will not be entitled to set of loss incurred against taxable income of assessee. assessee went in appeal before CIT(A). CIT(A) has allowed appeal of assessee by holding as under: plain reading of s. 94(7) shows that were assessee has purchased any share/unit within period of three months prior to record date and also sells same within three months after record date and insures short-term capital loss on such sale, he shall not be entitled to set off/to carry forward aforesaid loss to extent of dividend income earned on such securities, if such dividend is exempt from tax. Thus all three conditions are to be cumulatively satisfied by assessee in order to fall within purview of s. 94(7) of IT Act. This interpretation is clear from Circular No. 14 of 2001 [(2002) 172 CTR (St) 13] issued by CBDT explaining provisions of Finance Act, 2001 which has been relied upon by appellant. relevant portion of said circular is reproduced as under: "56.3 with view to curve creation of such short-term losses, Act has inserted new sub-s. (7) in section to profit that where any person by is or acquires securities or units within period of three months prior to record date fixed for declaration of dividend or distribution of income in respect of securities or units, and sells or transfers same within period of three months after such record dates, and dividend or income received or respectively is exempt than loss, if any, arising of such purchase or sale shall be ignored to expenditure such loss does not exceed amount of such dividend or interest, in computation of income chargeable to tax of such person. In view of above it is evident that all conditions prescribed in s. 94(7) of IT Act are to be cumulatively satisfied. Since in instant case appellant has sold securities/units after three months of purchases/record date, its case is not covered within purview of s. 94(7) of IT Act. AO s finding with regard to this issue is not found to be justified and AO is directed to allow loss of Rs. 73,62,341 as claimed by appellant." learned Departmental Representative before us vehemently contended that all conditions stated under cls. (a), (b) and (c) of s. 94(7) are not required to be complied with for applicability of s. 94(7). Even if one of cl. (a) or (b) has been fulfilled by assessee provisions of s. 94(7) will be applicable in case of assessee. Learned Authorised Representative on other hand relied on order of CIT(A) and referred to provision of s. 94(7) as was in existence prior to amendment made by Finance Act, 2004 w.e.f. 1st April, 2005 and it was stated that provision of s. 94(7) are quite clear that all conditions as stipulated under cls. (a), (b) and (c) at to be complied with before applying provision of s. 94(7). We have carefully considered rival submissions along with order of Tax authorities below. We find that s. 94(7) prior to its amendment by Finance Act, 2004 w.e.f. 1st April, 2005 stipulates 3 clauses, cl. (a) states that if any person buys or acquires any securities or units within period of three months prior to record date, cl. (b) states that if such person sells or transfer such securities or units within period of three months after such date, cl. (c) stipulates dividend or income on such securities or unit received or receivable by such person is exempt then loss if any arising to him on account of such purchase and sale of securities or unit to extent such loss does not exceed amount of dividend or income received or receivable on such securities or unit shall be ignored for purpose of computing his income chargeable to tax. In our opinion all conditions as stipulated under cls. (a), (b) and (c) are to be complied with cumulatively if securities/units will not be sold, no question of any profit or sale arise. profit/loss can be sustained by assessee only if there is purchase and sale of securities. Dividend can also be received by assessee only if assessee has purchased securities/units. We therefore do not find any substance in submission made by learned Departmental Representative. It is admitted fact that in case of assessee assessee purchased securities/units within period of three months prior to record date but has sold them after expiry of three months from date of record date. In view of this fact, we are of view that cl. (b) of s. 94(7) could not be complied with in case of assessee. We therefore do not find any illegality or infirmity in order of CIT(A) allowing appeal of assessee. We accordingly confirm order of CIT(A). In result, appeal of Revenue stands dismissed. CO No. 339 We have heard rival submissions and carefully considered them. In our opinion it is fit case where justice demand with matter be restored to file of AO as assessee has submitted confirmation and acknowledgement of IT return for first time before CIT(A). AO could not be able to examine this evidence. We therefore in interest of justice and fair play to both parties, set aside this issue and restore to file of AO with direction that AO will re-examine this issue and assessee will submit all necessary evidences including confirmation of party who has deposited share application money before AO. AO will be free to verify evidences as necessary to deal with issue and decide in accordance with law. Thus, cross-objection filed by assessee is allowed for statistical purposes. In result, appeal of Revenue is dismissed while cross- objection of assessee is allowed for statistical purposes. *** INCOME TAX OFFICER v. SECOND LEASING (P) LTD.