ELEKTRA TRADES (INDIA) LTD, MUMBAI V. ITO 9(1)(3), MUMBAI

CO 217/MUM/2009

• Counselvise Citation: [2011] 122 COUNSELVISE.COM (IT) 5788 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 25 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 11-03-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 28-02-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 16-11-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR B SENTHIL KUMAR
• Assessee Lawyers: S S PHADKAR
• Keywords: Unexplained expenditure; Bad and doubtful debts; Condonation of delay
• Section: 69C; 43B; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, E, MUMBAI BEFORE SHRI J SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO, JUDICIAL MEMBER ITA NO. 749 /MUM/2008 (ASSESSMENT YEARS 2004-05) INCOME TAX OFFICER9(1)3, R NO.224,AAYAKAR BHAVAN, MUMBAI-400020 .APPELLANT VS ELECTRA TRADERS PVT LTD 2, GANGA BHAVAN, 459, 24 TH RD.BANDRA (W), MUMBAI-400050 PAN: AAACE8540Q .RESPONDENT CROSS-OBJECTION NO.217/MUM/2009 IN ITA NO. 749 /MUM/2008 ELECTRA TRADERS PVT LTD .APPELLANT V/S INCOME TAX OFFICER9(1)3, RESPONDENT ASSESSEE BY : SHRI S S PHADKAR REVENUE BY : SHRI DR.B.SENTHI L KUMAR O R D E R PER VIJAY PAL RAO THIS APPEAL BY THE REVENUE AND CROSS-OBJECTION BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER DATED 7. 11.2007 OF THE CIT(A) FOR THE ASSESSMENT YEAR 2004-05. ITA NO. 749 /MUM/2008 CROSS-OBJECTION NO.217/MUM/2009 2 ITA NO. 749 /MUM/2008 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DIRECTING THE ASSESSING OFFICER TO ALLOW THE ASSESSEES CLAIM OF INTEREST OF RS.3,37,800/- UNDER SECTION 43B OF THE IT ACT SUBJECT TO VERIFICATION, THEREBY VIOLATING THE PROVISIONS OF SECTION 251 OF THE IT ACT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ASSESSING OFFICERS DISALLOWANCE OF RS.2,24,51,927 /- UNDER SECTION 69C OF THE IT ACT ON ACCOUNT OF UNEXPLAINED EXPENDITURE OF REPAYMENT OF LOAN TO UCO BANK WITHOUT APPRECIATING THE FACTS OF THE CASE ; 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN RESTRICT ING THE AOS DISALLOWANCE TO 10% AS AGAINST 25% DISALLOWED BY THE AO OUT OF EACH OF THE MANUFACTURING OVERHEADS, ADMINISTRATIVE OVERHEADS AND PERSONAL EXPENDITURE, WITHOUT APPRECIATING THE FACTS OF THE CASE 3. GROUNDS OF APPEAL NO.1 IS REGARDING THE DISALLOW ANCE OF INTEREST OF RS.,3,37,800 U/S 43B OF THE ACT. D URING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO DISALLOWE D INTEREST OF RS.337800/- ON SECURED LOANS OF RS.38,70,026 FR OM MAHARASHTRA STATE FINANCE CORPORATION.(MSFC) THE ASSESSEE CLAIMED TO HAVE PAID THE SAID INTEREST TO MSFC. HOWEVER, THE AO WAS OF THE VIEW THAT IN ABSENCE OF DOCUMENTARY EVIDENCE THE CLAIM OF THE ASSESSEE CANN OT BE ALLOWED. ACCORDINGLY, THE AO DISALLOWED THE INTE REST CLAIMED U/S 43B. ITA NO. 749 /MUM/2008 CROSS-OBJECTION NO.217/MUM/2009 3 3.1 ON APPEAL, THE CIT(A) HAS ALLOWED THE CLAIM OF THE ASSESSEE SUBJECT TO THE VERIFICATION OF THE FACTS A S SUBMITTED BY THE ASSESSEE BEFORE THE CIT(A). . 3.2 BEFORE US THE LEARNED DR HAS SUBMITTED THAT TH E CIT(A) HAS ALLOWED THE CLAIM OF THE ASSESSEE WITHOUT VERIF ICATION OF THE RELEVANT FACTS AND EVIDENCE SHOWING THE PAYMENT OF THE LOAN. THEREFORE, THE DIRECTION OF THE CIT(A) IS I N VIOLATION OF THE PROVISIONS OF SECTION 251 OF THE IT ACT. THE LE ARNED DR HAS SUBMITTED THAT THE ASSESSEE HAS NOT SUBMITTED ANY MATERIAL TO SHOW THAT THE SAID INTEREST WAS ACTUALL Y PAID TO THE MSFC AND THEREFORE THE ASSESSEE FAILED TO PROVE THE PAYMENT OF INTEREST. HE HAS RELIED UPON THE ORDER OF THE A O. 3.3 THE LEARNED AR HAS SUBMITTED THAT THE ASSESSEE HAS PRODUCED ALL THE RELEVANT RECORD EVEN BEFORE THE A O. HE HAS FURTHER CONTENDED THAT IN THE ORDER GIVING EFFECT, THE AO HAS ALLOWED THE CLAIM OF THE ASSESSEE AFTER SATISFACTIO N HIMSELF ON THE POINT OF PAYMENT OF INTEREST. HE HAS REFERRED THE ORDER GIVING EFFECT TO THE CIT(A) AT PAGE 79 OF THE PAPER BOOK 3.4 WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTI ONS AND RELEVANT RECORD. AS EVIDENT FROM THE ASSESSMENT OR DER, THE ITA NO. 749 /MUM/2008 CROSS-OBJECTION NO.217/MUM/2009 4 AO DISALLOWED THE INTEREST CLAIMED TO BE PAID TO TH E MSFC OF RS.3,37,800/- ON THE GROUND THAT THE ASSESSEE HAS N OT FURNISHED ANY DOCUMENTARY PROOF HAVING PAID THIS AMOUNT TO THE MSFC. ON APPEAL, THE CIT(A) HAS ALLOWED THE C LAIM OF THE ASSESSEE ON THE BASIS OF THE SUBMISSIONS MADE B Y THE ASSESSEE. THE ORDER OF THE CIT(A) DOES NOT EXHIBI T THAT THE CIT(A) HAS CONSIDERED OR VERIFIED THE DOCUMENTARY PROOF REGARDING THE PAYMENT OF THE LOAN. THEREFORE, IN OUR CONSIDERED OPINION, THE ISSUE REQUIRED TO BE GIVEN PROPER VERIFICATION AND EXAMINATION. ACCORDINGLY, WE SET A SIDE THIS ISSUE TO THE RECORD OF THE AO TO VERIFY AND EXAMIN E THE RELEVANT RECORD BEING PROVED THE PAYMENT OF THE SAI D INTEREST PAID TO MSFC AND THEN DECIDE THE SAME AS PER LAW. 4. THE GROUND NO.1 IS ALLOWED FOR STATISTICAL PURP OSES. 4. GROUNDS OF APPEAL NO.2, THE DISALLOWANCE OF RS.2,24,51,927 U/S 69C. DURING THE COURSE OF ASSE SSMENT PROCEEDINGS, THE AO NOTICED FROM THE BALANCE SHEET THAT THE ASSESSEE HAS SHOWN SECURE LOAN OF RS.2,24,51,927/- AS ON 31.3.2003. HOWEVER, THE ASSESSEE HAS SHOWN NIL AMO UNT OF SECURED LOAN AS ON 31.3.2004. ACCORDINGLY, THE AO MADE THE ADDITION OF THE SAID AMOUNT U/S 69C FOR WANT OF SOURCE OF REPAYMENT OF THIS SECURED LOAN. ITA NO. 749 /MUM/2008 CROSS-OBJECTION NO.217/MUM/2009 5 4.1 ON APPEAL, THE CIT(A) DELETED THE ADDITION ON THE GROUND THAT THERE WAS NO REPAYMENT OF LOAN. THE L OAN WAS ONLY BY WAY OF BOOK ENTRIES AND THE ASSESSEE ADJUS TED THE LOAN LIABILITY AGAINST DEBTORS ACCOUNT. THE CIT(A ) HAS RECORDED THAT AS PER THE LETTER DATED 29.03.2004 I SSUED BY THE UCO BANK, THE TOTAL LIABILITY WAS RESCHEDULED AND S PREAD OVER THE NUMBER FUTURE YEARS WHICH ARE AS UNDER : * ASSESSEE ALSO SUBMITTED THE COPY OF THE LETTER DATED 29.3.2004 ISSUED BY UCO BANK IN WHICH THE TOTAL LIABILITY OF ASSESSEE IS RESCHEDULED AND IS SPREAD OVER TH4E NUMBER OF FUTURE YEARS REFER PG NO.64-63 * THE ASSESSEE ONLY FOLLOWED THE ACTUAL ACCOUNTING WHERE BY THE LOAN O F RS.2.52 CR. WAS SPREAD IN FIV E YEARS; * THE LIABILITY WHICH IS PAYABLE IN FIVE YEARS HAD TO BE TAKEN OFF FROM THE BOOKS BY GIVING CREDIT TO DEBTO RS * THE LIST OF DEBTORS WAS SUBMITTED TO AO HOWEVER WE PRODUCE BEFORE YOU THE LIST AGAIN FOR YOUR RECORD. REFER PAGE 62-61 * THE AO HAS INSPECTED BOOKS OF ACCOUNTS AND HAS S EEN THAT THE CREDIT ENTRIES HAVE BEEN PASSED IN DEBTO RS ACCOUNT AND HAVE DEBITED THE BAD DEBTS ACCOUNT THE AO IS MISLEADING IN HIS ORDER THE ASSESSEE HA S REPAID THE LOAN IN FACT THE LOAN STILL STANDS IN THE BOOKS OF ACCOUNT IS IS ADJUSTED AGAINST BAD DEBTS; THE EFFECT OF ADJUSTMENT IS SAME U/S 41 IN CASE O F BOOK LIABILITY IT WILL BE SHOWN AS RECESSION OF LIABILITY AS IN CASE AGAINST WHICH THE BAD DEBTS HAVE SEEN SET OFF BECAUSE THE A BOVE LOANS WERE SECURED BY DEBTORS; ITA NO. 749 /MUM/2008 CROSS-OBJECTION NO.217/MUM/2009 6 SINCE THE SECURITY I.E. THE DEBTORS ITSELF WERE DOU BTFUL THE LOAN WAS RESCHEDULES, THE ASSESSEE HA SNOT HIDDEN ANY FA CTS, IT HAS DISCLOSED ALL THE FACTS. BUT IT SEEMS THAT THE LE ARNED ASSESSING OFFICER HAS NOT UNDERSTAND THE TRANSACTION AND ENT RY PASSED. THE ASSESSEE HAS NOT BENEFITED OUT OF THE ENTRIES PASSED. THE LIABILITY STILL EXISTED AS ON 31.3.2004 4.2 BEFORE US, THE LEARNED DR HAS SUBMITTED THAT AS SESSEE HAS WIPED OUT THE LOAN LIABILITY FROM THE BOOKS OF ACCOUNT WITHOUT SHOWING THE SOURCES OF PAYMENT IF IT WAS R ESCHEDULED OF THE REPAYMENT OF THE LOAN THEN THE LIABILITY SHO ULD HAVE EXISTED IN THE BOOKS OF ACCOUNT. HE HAS RELIED UP ON THE ORDER OF THE AO. 4.3 WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND R ELEVANT RECORD. THE AO MADE THE ADDITION U/S 69C ON THE PRESUMPTION THAT THE ASSESSEE REPAID THE LOAN WITHO UT EXPLAINING THE SOURCES OF REPAYMENT. THUS, THE AO CAME TO THE CONCLUSION WITHOUT GIVING FINDING ON ACTUAL REPAYMENT OF THE LOAN. THE CIT(A) HAS DELETED THE ADDITION ON T HE BASIS OF THE LETTER DATED 29.03.2004 OF THE UCO BANK WHICH SHOWS THAT THE LOAN LIABILITY OF THE ASSESSEE WAS RE-SCHE DULED. THE SAID LETTER IS PLACED AT PAGE 66 OF THE PAPER BOOK . IT IS TO BE NOTED THAT IN THE SAID LETTER DATED 29,03,2004 THE LOAN AMOUNT HAS BEEN SHOWN AT RS.2 CRORES WHICH WAS RESCHEDUL ED FROM THE YEAR 2004-05 TO 2008-09 ON QUARTERLY PAYMENT. FROM ITA NO. 749 /MUM/2008 CROSS-OBJECTION NO.217/MUM/2009 7 THE QUERY OF THE BENCH THE LEARNED AR OF THE ASSES SEE SUBMITTED THAT TILL DATE NO REPAYMENT HAS BEEN MAD E TO THE SAID LOAN . THE OUTSTANDING SHOWN BY THE ASSESS EE AS ON 31.3.2002 WAS RS. 2,24,51,927/- WHEREAS AS PER THE SAID LETTER DATED 29.3.2004 THE LOAN AMOUNT HAS BEEN S HOWN AS RS.2 CRORES, THEREFORE, THERE IS A DISCREPANCY IN THE FACTS AND FIGURES WHICH REQUIRES TO BE VERIFIED. ACCORDINGL Y, WE SET ASIDE THIS ISSUE TO THE RECORD OF THE AO FOR VERI FICATION AND EXAMINATION OF THE FACT AND FIGURES AFTER RESCHEDU LE OF THE LOAN AND DECIDE THE ISSUE AS PER LAW. 5. GROUNDS OF APPEAL NO.2 IS ALLOWED FOR STATISTICA L PURPOSES. 6. GROUNDS OF APPEAL NO.3 IS REGARDING DISALLOWANCE OF EXPENDITURE CONFIRMED BY THE CIT(A) TO THE EXTENT OF 10%. 6.1 WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND RE LEVANT RECORD . THE AO HAS DISALLOWED 25% OF THE MANUFACT URING OVERHEAD AND ADMINISTRATIVE OVERHEADS AND PERSONAL EXPENDITURE IN ABSENCE OF THE NECESSARY DETAILS AN D SUPPORTING DOCUMENTARY EVIDENCE. 6.2 ON APPEAL, THE CIT(A) HAS CONSIDERED THE CONTE NTIONS OF THE ASSESSEE, AND RESTRICTED THE DISALLOWANCE TO 10%. ITA NO. 749 /MUM/2008 CROSS-OBJECTION NO.217/MUM/2009 8 6.3 BEFORE US, THE LEARNED DR HAS CONTENDED THAT W HEN THE ASSESSEE FAILED TO DISCHARGE ITS ONUS BY NOT PR ODUCING THE DOCUMENTARY EVIDENCE IN SUPPORT OF ITS CLAIM THEN T HE DISALLOWANCE RESTRICTED BY 10% IN STEAD OF 25% I S NOT JUSTIFIED. HAVING REGARD TO THE FACTS AND CIRCUMST ANCES OF THE CASE, WE ARE OF THE VIEW THAT WHEN THE AO MADE THE DISALLOWANCE OF 25% FOR WANT OF NECESSARY DETAILS AND DOCUMENTARY EVIDENCE IN SUPPORT OF ITS CLAIM WHICH SHOWS THAT THE CLAIM OF THE ASSESSEE WAS NOT FOUND ABSOLUTE W RONG OR INCORRECT BUT ONLY FOR WANT OF NECESSARY DOCUMENTA RY EVIDENCE, DISALLOWANCE MADE ON ADHOC BASIS. THE E STIMATION IS SUBJECTIVE IN NATURE, THEREFORE, WE DO NOT FIN D ANY REASON TO INTERFERE WITH THE ORDER OF THE CIT(A) IN RESTRI CTING THE DISALLOWANCE TO 10%. ACCORDINGLY THE ORDER OF TH E CIT(A) IS UPHELD. 6.4 THE GROUND NO.3 IS THEREFORE DISMISSED. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S PARTLY ALLOWED FOR STATISTICAL PURPOSES. CROSS OBJECTION NO.217/MUM/2009 8. GROUNDS OF CROSS-OBJECTION RAISED BY THE ASSESSE E ARE AS UNDER : ITA NO. 749 /MUM/2008 CROSS-OBJECTION NO.217/MUM/2009 9 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN ENHANCIN G THE INCOME BY RS.23,94,991 BY ADDING INTEREST/FINANCE CHARGES ALLEGEDLY DISALLOWABLE U/S 43B(D); 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN ADDING TH E PAYMENT TO EMPLOYEE RELATING TO WAGES AND SALARIES , PF CONTRIBUTION TRANSPORT CHARGES, RETRENCHMENT COMPENSATION ETC OF RS.27,72,139 ON THE GROUND THA T NO PROOF OF PAYMENT OF SUCH UNCERTAIN LIABILITIES HAS BEEN FURNISHED 8.1 THERE IS A DELAY OF 532 DAYS IN FILING THE CROS S-OBJECTION FILED BY THE ASSESSEE. THE ASSESSEE HAS FILED AN A PPLICATION FOR CONDONATION OF DELAY ALONGWITH THE AFFIDAVIT. 8.2 WE HAVE HEARD THE LEARNED AR AS WELL AS THE LEA RNED DR AND CONSIDERED THE APPLICATION FOR CONDONATION OF D ELAY AS WELL AS THE AFFIDAVIT FILED BY THE ASSESSEE FOR CON DONATION OF DELAY. IT IS SUBMITTED BY THE LEARNED AR THAT THE DIRECTOR OF THE ASSESSEE-COMPANY COULD NOT FILED THE CROSS-OBJE CTION WITHIN TIME PERIOD BECAUSE THE ASSESSEE WAS SUFFER ING FROM HEART AILMENT. THE ASSESSEE UNDERWENT BYE-PASS SUR GERY IN THE MONTH OF MAY 2009 AND WAS RECOVERING TILL THE END OF THE OCTOBER 2009, THEREFORE, THE ASSESSEE COULD NOT ATT END THE APPEAL AND CASE PROCEEDINGS. THE LD. AR HAS SUBMIT TED THAT THE DELAY IN FILING THE CROSS-OBJECTION IS NEITHER WILLFUL OR DELIBERATE BUT DUE TO THE ILLNESS OF THE ASSESSEE WHICH IS ITA NO. 749 /MUM/2008 CROSS-OBJECTION NO.217/MUM/2009 10 BEYOND THE CONTROL OF THE ASSESSEE. HE HAS RELIED U PON THE DECISION OF THE HON. SUPREME COURT IN THE CASE OF N BALAKRISHNA V/S M KRISHNAMURTHY REPORED IN (1998) 7 SUPREME COURT CASES 123 AND SUBMITTED THAT THE DISP UTE TO BE ADJUDICATED ON MERITS TO ADVANCE SUBSTANTIAL JUSTI CE AND TECHNICALITIES SHOULD NOT COME IN THE WAY OF LEG AL REMEDY. HE HAS ALSO RELIED UPON THE DECISION OF TH HON. SUP REME COURT IN THE CASE OF COLLECTOR OF LAND ACQUISITION V. MS T. KATIJI (1987) 167 ITR 471 (SC) AND SUBMITTED THAT THE LENGTH OF DELAY IS NOT MATERIAL WHILE ACCEPTING THE EXPLANATI ON FOR THE DELAY. IF THE EXPLANATION IS FOUND SUFFICIENT THEN THE LENGTH OF DELAY IS IMMATERIAL. THE EXPLANATION OF THE ASSESSE E IS BONAFIDE AND THEREFORE THE DELAY IN FILING THE CR OSS-OBJECTION MAY BE CONDONED. 8.3 ON THE OTHER HAND, THE LEARNED DR HAS SUBMITTED THAT THE CROSS-OBJECTION SHOULD HAVE BEEN FILED ON OR BE FORE 2.05.2008 WHEREAS THE ASSESSEE DID NOT FILE THE CRO SS- OBJECTION EVEN DURING THE PERIOD BEFORE THE ASSESSE E UNDERGONE HIS BYE-PASS SURGERY IN THE MONTH OF MAY 2009. HE HAS VEHEMENTLY OPPOSED THE CONDONATION OF DELAY. 8.4 WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND R ELEVANT RECORD. THE REASONS EXPLAINED BY THE ASSESSEE THAT THE DELAY ITA NO. 749 /MUM/2008 CROSS-OBJECTION NO.217/MUM/2009 11 IN FILING THE CROSS-OBJECTION IS THAT THE ASSESSEE WAS SUFFERING FROM HEART AILMENT AND UNDERGONE BYE-PASS SURGERY IN THE MONTH OF MAY 2009. IT IS PERTINENT TO NOTE THAT T HE CROSS- OBJECTION SHOULD HAVE BEEN FILED ON OR BEFORE 2 ND MAY 2008 WHEREAS THE SAME HAVE BEEN FILED ON 16.11.2009, TH EREFORE, THERE IS AN INORDINATE DELAY OF 532. THE CASE LAW RELIED UPON BY THE ASSESSEE, IN OUR VIEW, ARE NOT RELEVANT AND APPLICABLE TO THE FACTS AND CIRCUMSTANCES OF CASE. NO DOUBT T HAT THE COURT SHOULD TAKE A LENIENT VIEW AND APPROACH WHILE DECIDING THE ISSUE OF CONDONATION OF DELAY AND TECHNICALITIE S SHOULD NOT COME IN THE WAY OF SUBSTANTIAL JUSTICE. HOWEVER, THE BASIC REQUIREMENT OF SUFFICIENT CAUSE OF ACTION CANNOT BE UNDERMINED AND IGNORED. WHEN THE ASSESSEE HAS FAI LED TO EXPLAIN THE INORDINATE DELAY OF 532 DAYS IN FILING THE CROSS- OBJECTION PARTICULARLY THE DELAY PRIOR TO THE ASSES SEE UNDERGONE FOR BYE-PASS SURGERY THEN THE PRINCIPLE O F LIBERAL APPROACH AND SUBSTANTIAL JUSTICE WOULD NOT COME TO THE RESCUE THE ASSESSEE FROM HIS CASUAL APPROACH. THE ASSESSE E WAS VERY MUCH AWARE THE PENDENCY OF THE APPEAL FILED BY THE REVENUE AND RIGHT FROM THE BEGINNING THE ASSESSEE I S SEEKING ADJOURNMENT, THEREFORE, THE EXPLANATION OF HE ASSES SEE AS EVIDENT FROM THE AFFIDAVIT AS WELL AS FROM THE COND UCT OF THE ASSESSEE IS NOT SUFFICIENT OR EVEN A GOOD CAUSE FO R DELAY IN FILING THE CROSS-OBJECTION. FROM THE TOTALITY OF TH E FACTS AND ITA NO. 749 /MUM/2008 CROSS-OBJECTION NO.217/MUM/2009 12 CIRCUMSTANCES OF THE CASE AS WELL AS FROM THE COND UCT OF THE ASSESSEE WE ARE OF THE VIEW THAT THE REASONS CITED BY THE ASSESSEE FOR CONDONATION OF DELAY IS NOT SUFFICIENT TO CONDONE THE DELAY. IN THE CASE OF N BALACRISHNAN V/S M KR ISHNAMURTHY (SUPRA) THE HON. SUPREME COURT HAS OBSERVED THAT TH E LENGTH OF DELAY IS NOT MATERIAL IF IT HAS BEEN PROPERLY EX PLAINED, THE FACTS STATED TO BE SOME LAPS ON THE PART OF THE AD VOCATE AND THEREFORE THE HON. SUPREME COURT WAS SATISFIED WITH THE EXPLANATION OF THE ASSESSEE FOR DELAY. IN THE MATT ER OF CONDONATION OF DELAY THERE CANNOT BE A PRECEDENT A ND AS HELD BY THE HON. SUPREME COURT THE DISCRETION OF THE COU RT ON THE SATISFACTION OF THE CAUSE OF DELAY DEPENDS UPON THE FACTS AND CIRCUMSTANCES OF THE EACH CASE. THEREFORE, WHEN TH E ASSESSEE HAS FAILED TO EXPLAIN THE DELAY PROPERTY T HEN THE DECISION CITED BY THE ASSESSEE WOULD NOT APPLY BY I GNORING THE FACTS AND CIRCUMSTANCES OF THE CASE. IN VIEW OF TH E ABOVE DISCUSSION, WE DECLINE TO CONDONE THE DELAY IN FILI NG THE CROSS- OBJECTION FILED BY THE ASSESSEE. ACCORDINGLY, THE CROSS- OBJECTION IS DISMISSED IN LIMINE AS BARRED BY LIMIT ATION. SINCE THE CROSS-OBJECTION IS NOT ADMITTED, WE DO NOT PROP OSE TO GO INTO THE MERITS OF THE CROSS-OBJECTION. ITA NO. 749 /MUM/2008 CROSS-OBJECTION NO.217/MUM/2009 13 8.5 IN THE RESULT, THE APPEAL BY THE REVENUE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSES AND THE CROSS-OBJECTION FI LED BY THE ASSESSEE IS DISMISSED. . ORDER PRONOUNCED IN THE OPEN COURT ON 11 MARCH, 2011 SD SD (J.SUDHAKAR REDDY) (V IJAY PAL RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, ON THIS 11 TH DAY OF MARCH 2011 SRL:7311 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH BY ORDER TRUE COPY ASSTT. REGISTRAR, ITAT, MUMBAI