DCIT, Ludhiana V. M/s Mrs. Bector Food Specialities Ltd., Ludhiana

ITA 1063/CHANDI/2011

• Counselvise Citation: 106321514 RSA 2011
• Duration Of Justice: 3 year(s) 11 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 05-05-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 04-11-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D S SIDHU
• Assessee Lawyers: SUBHASH AGGARWAL
• Keywords: Opportunity of being heard; Condonation of delay
• Section: 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, CHANDIGARH BEFORE SHRI H.L.KARWA, HON'BLE VICE PRESIDENT & MS. ANNAPURNA MEHROTRA, ACCOUNTANT MEMBER ITA NO. 1063/CHD/2011 ASSESSMENT YEAR: 2007-08 THE DCIT, CIRCLE-III, VS. M/S BECTOR FOOD SPECIALT IES LTD. LUDHIANA LUDHIANA PAN NO. AABCM9495K & ITA NO. 297/CHD/2014 ASSESSMENT YEAR: 2007-08 M/S BECTOR FOOD SPECIALTIES LTD., VS. THE ADDL. CI T, RANGE-III, LUDHIANA LUDHIANA PAN NO. AABCM9495K (APPELLANT) (RESPONDENT) APPELLANT BY : SH. D.S. SIDHU RESPONDENT BY : SH. SUBHASH AGGARWAL DATE OF HEARING : 15.09.2015 DATE OF PRONOUNCEMENT : 14.10.2015 ORDER PER H.L.KARWA, VP THESE TWO APPEALS BY THE REVENUE AND ASSESSEE ARE D IRECTED AGAINST THE ORDER OF CIT-I, LUDHIANA DATED 8.8.2011 RELATING TO ASSESSMENT YEAR 2007-08. FIRSTLY, WE WILL TAKE UP REVENUES APPEAL I.E. ITA NO. 1063/CHD/2011 . 2 2. GROUND NO.1 OF THE APPEAL READS AS UNDER:- 1. THAT THE LD. CIT(A) HAS ERRED IN LAW IN DELE TING THE ADDITION MADE BY THE A.O. AMOUNTING TO RS.36,02,230/- U/S 1 4A READ WITH RULE 8D ON ACCOUNT OF INVESTMENT OF RS.24,47,37,681 /-MADE BY THE ASSESSEE IN MUTUAL FUNDS DURING THE YEAR BY HOLDING THAT THE ABOVE INVESTMENT HAS BEEN MADE FROM THE FUNDS RECEIV ED FROM M/S. GOLDMAN SACHS AND NOT BY TAKING LOAN FROM BANKS IGN ORING THE APPLICABILITY OF RULE 8D. 3. THE ASSESSING OFFICER DISALLOWED A SUM OF RS. 36 ,02,230/- U/S 14A OF THE INCOME-TAX ACT, 1961 READ WITH RULE 8-D OF I.T. RUL ES, 1962 ON ACCOUNT OF INVESTMENT OF RS. 24,47,37,681/- OBSERVING AS UNDER :- 4.0 DISALLOWANCE ON TAX FREE INVESTMENT U/S 14A R W. RULE 8D:- DURING THE ASSESSMENT PROCEEDING IT WAS NOTICED THAT THE ASSESSEE MADE THE FOLLOWING INVESTMENTS INTO THE EQ UITIES & SHARES, MUTUAL FUNDS, GROWTH FUNDS ETC.:- SR. NO. NO. OF UNITS PARTICULARS AMOUNT AS ON 31.3.07 AMOUNT AS ON 31.3.06 1. 150000 BIRLA FTP RETAIL 386 D SERIES U-G 15,00,000/- - 2. 10000000 LI 30 'D SBI DEBT FUND SERIES - 90 DAYS - DIV. 10,00,00,000/- - 3. 4019703 LI 33 D SBI DEBT FUND SERIES- 90 DAYS- DIV. 4,01.97,480/- - 4. 4000000 LI 36 G SBI DEBT FUND SERIES -90 DAYS G 4,00,00,000/- - 5. 9787813 LO30 MAGNUM INSTA CASH FUND- DIVIDEND 10,45,40,201/- - 6. 100000 PRINCIPAL PNB FMP S!V 385 D REG-G 10,00,000/- - 7. 250000 RELIANCE FH FUND ML 25,00,000/- - 3 371 D SIVRET-G 8. 20000 SB! ONE INDIA FUND 2,00,000/- - 9. 162882 LO57D MAGNUM INSTA CASH FUND 15.73.766/- 4.88.250/- TOTAL 29,38,09,697/- 4,88,250/- THE ASSESSEE HAS SUBMITTED THAT THE FUNDS INVESTED AT SR.NO.1, 4, 6,7,8, 9 AND THE OPENING BALANCE ARE NOT TAX FREE I NVESTMENTS AS THEY ARE BASICALLY ONLY INTEREST BEARING INVESTMENTS AND THE INTEREST IS TAXABLE. THEREFORE, THE INVESTMENT AT SR. NO. 2, 3 & 5 AMOUNTING TO RS.24,47,37,681/- ARE BEING CONSIDERED FOR THE PURP OSES OF CALCULATION OF DISALLOWANCE OF EXPENDITURE U/S 14A R.W. RULE 8D . THE ASSESSEE WAS ASKED FURTHER QUERIES VIDE LETTER DATED 20.11.2009 TO PROVIDE DETAILS OF TAX FREE INVESTMENTS ALONG WITH CALCULATION AS P ER SECTION 14A READ WITH RULE 8D. THE ASSESSEE VIDE DATED 14.12.2009 PR OVIDED THE DETAILS PLACED ON RECORD AND STATED AS UNDER- 'WE HAD INVESTED RS.32.52 CRORES IN VARIOUS SCHEMES OF MUTUAL FUNDS ON WHICH WE EARNED DIVIDEND INCOME FOR RS.20, 19,367/-. THE DETAILS OF SAME ARE ENCLOSED. THE INVESTMENT WE RE MADE OUT OF OWN FUNDS AND NOT OUT OF ANY BORROWINGS. NO EXPE NDITURE WAS INCURRED IN RELATION TO THIS INCOME. BY AN OVERSIGH T THE DIVIDEND RECEIVED WAS NOT CLAIMED AS AN EXEMPTED INCOME, IT IS NOW REQUESTED THAT WHILE MAKING THE ASSESSMENT THE SAID DIVIDEND INCOME MAY KINDLY BE EXEMPTED. ' SECTION 14A OF INCOME TAX ACT, 1961 READ WITH RU LE 80(2} OF COME TAX RULES, 1962 READS AS FOLLOWS:- '(2) THE EXPENDITURE IN RELATION TO INCOME WHICH DO ES NOT FORM PART OF THE TOTAL INCOME SHALL BE THE AGGREGATE OF FOLLOWING AMOUNTS, NAMELY - (I) THE AMOUNT OF EXPENDITURE DIRECTLY RELATING TO INCOME WHICH DOES NOT FORM PART OF TOTAL INCOME, (II) IN A CASE WHERE THE ASSESSEE HAS INCURRED EXPE NDITURE BY WAY OF INTEREST DURING THE PREVIOUS YEAR WHICH IS N OT DIRECTLY ATTRIBUTABLE TO ANY PARTICULAR INCOME OR RECEIPT, A N AMOUNT COMPUTED IN ACCORDANCE WITH THE FOLLOWING FORMULA, NAMELY : A B X C 4 WHERE A = AMOUNT OF EXPENDITURE BY WAY OF INTEREST OTHER THAN THE AMOUNT OF INTEREST INCLUDED IN CLAUSE (I) INCUR RED DURING THE PREVIOUS YEAR- B = THE AVERAGE OF VALUE OF INVESTMENT, INCOME FROM WHICH DOES NOT OR SHALL NOT FORM PART OF THE TOTAL INCOME, AS APPEARING IN THE BALANCE SHEET OF THE ASSESSEE, ON THE FIRST DAY AND THE LAST DAY OF THE PREVIOUS YEAR, C =THE AVERAGE OF TOTAL ASSETS AS APPEARING IN THE BALANCE SHEET OF THE ASSESSEE, ON THE FIRST DAY AND THE LAST DAY OF THE PREVIOUS YEAR; (III) AN AMOUNT EQUAL TO ONE-HALF PER CENT OF THE AVERAGE OF THE VALUE OF INVESTMENT, INCOME FROM WHICH DOES NOT OR SHALL NOT FORM PART OF THE TOTAL INCOME, AS APPEARING IN THE BALANCE SHEET OF THE ASSESSES, ON THE FIRST CLAY AND THE LASTDAY OF THE PREVIOUS YEAR.' THE ASSESSEE VIDE ORDER SHEET ENTRY DATED 20.11-09 WAS ASKED THAT THERE WERE TOTAL INVESTMENTS OF RS.29,38,09,697/- A S ON 31.03.2007 AND AS PER ASSESSEE, RS.24,47,37,6817- ARE INVESTME NTS ON WHICH DIVIDEND INCOME IS NOT TAXABLE. THE CALCULATION UNDER SECTION 14A R.W. RULE 8D IS A S FOLLOWS:- OPENING INVESTMENTS AS ON 01.04.06 0 CLOSING INVESTMENTS AS ON 31.03.07 244737681 TOTAL 244737681 AVERAGE 122368841 INTEREST PAID 21962710 AVERAGE ASSETS OPENING ASSETS AS ON 01.04.06 175298442 5 CLOSING ASSETS AS ON 31.03.07 1622163023 1797461465 AVERAGE 898730733 (A) INTEREST*AVG. INVESTMENTS/ AVG ASSETS 21962710 * 122368841/898730733 2990386 (B) 0.5 % OF AVG. INVESTMENTS 611844 TOTAL 36,02,230 THEREFORE, THE EXPENDITURE ON TAX FREE INCOME IS DI SALLOWED AS PER PROVISIONS OF SECTION 14A OF INCOME TAX ACT, 1961 R EAD WITH RULE 8D(2) OF INCOME TAX RULES, 1962 AS PER THE CALCULAT IONS GIVEN ABOVE. THE EXPENSES @ 1 / A % AMOUNTING TO RS.6,11,844/- AND RS.29,90,386/- AS DISALLOWANCE OF INTEREST ARE HEREBY DISALLOWED T OTALLING TO RS.36,02,230/-AND ADDED BACK TO THE INCOME OF THE A SSESSEE U/S 14A. 4. ON APPEAL, THE CIT(A) RELYING ON THE JUDGEMNT OF HON'B LE BOMBAY HIGH COURT IN THE CASE OF GODREJ AND BOYCE MANUFACTURING . CO. LTD VS. DCIT AND ANOTHER [2010] 328 ITR 81 HELD THAT RULE 8D IS NOT APPLICABLE FOR ASSESSMENT YEAR 2007-08 AND HE, THEREFORE, DELETED THE DISALLO WANCE MADE BY THE ASSESSING OFFICER. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS. IT IS TRUE THAT RULE 8D IS NOT APPLICABLE FOR ASSESSMENT YEAR 2007-08. TO THE ABO VE EXTENT, THE LD. CIT(A) IS ABSOLUTELY CORRECT. HOWEVER, THE LD. CIT(A) HAS NOT APPRECIATED THE JUDGEMNT OF 6 THE BOMBAY HIGH COURT TO THE FOLLOWING EXTENT, WH EREIN THE HON'BLE HIGH COURT HELD (HEAD NOTE) AS UNDER:- HELD, THAT THE PROVISIONS OF RULE 8D OF THE RULES WHICH HAVE BEEN NOTIFIED WITH EFFECT FROM MARCH 24, 2008, WOULD APPLY WITH EFFECT FROM ASSESSMENT YEAR 2008-09. EVE N PRIOR TO ASSESSMENT YEAR 2008-09, WHEN RULE 8D WAS NOT APPLICABLE, THE ASSESSING OFFICER HAD TO ENFORCE TH E PROVISIONS OF SUB-SECTION (1) OF SECTION 14A . FOR THAT PURPOSE, THE ASSESSING OFFICER IS DUTY BOUND TO DET ERMINE THE EXPENDITURE WHICH HAS BEEN INCURRED IN RELATION TO INCOME WHICH DOES NOT FORM PART OF THE TOTAL INCOME UNDER THE ACT. THE ASSESSING OFFICER MUST ADOPT A REASONA BLE BASIS OR METHOD CONSISTENT WITH ALL THE RELEVANT FA CTS AND CIRCUMSTANCES AFTER FURNISHING A REASONABLE OPPORTU NITY TO THE ASSESSEE TO PLACE ALL GERMANE MATERIAL ON THE R ECORD. THE PROCEEDINGS FOR ASSESSMENT YEAR 2002-03 WOULD STAND REMANDED TO THE ASSESSING OFFICER. THE ASSESSING OF FICER SHOULD DETERMINE AS TO WHETHER THE ASSESSEE HAD INC URRED ANY EXPENDITURE (DIRECT OR INDIRECT) IN RELATION TO DIVIDEND INCOME/INCOME FROM MUTUAL FUNDS WHICH DOES NOT FORM PART OF THE TOTAL INCOME AS CONTEMPLATED UNDER SECT ION 14A . THE ASSESSING OFFICER CAN ADOPT A REASON-ABLE BAS IS FOR EFFECTING THE APPORTIONMENT. WHILE MAKING THAT DETERMINATION, THE ASSESSING OFFICER SHOULD PROVIDE A REASONABLE OPPORTUNITY TO THE ASSESSEE OF PRODUCING ITS ACCOUNTS AND RELEVANT OR GERMANE MATERIAL HAVING A BEARING ON THE FACTS AND CIRCUMSTANCES OF THE CASE. IN VIEW OF THE ABOVE DECISION OF THE HON'BLE BOMBAY HIGH COURT, WE SET ASIDE THE FINDINGS OF THE LD. CIT(A) ON THIS ISSUE AND REMAND THE MATTER TO CIT(A) WITH THE DIRECTION TO DECIDE THE SAME AFRESH KEEPING IN VIEW THE OBSERVATIONS OF THE HON'BLE BOMBAY HIGH COURT IN T HE CASE OF GODREJ AND BOYCE MANUFACTURING. CO. LTD VS. DCIT (SUPRA). THE CIT(A) SHALL PROVIDE 7 AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN T HE MATTER. FOR STATISTICAL PURPOSES, THE GROUND NO.1 OF THE APPEAL IS ALLOWED. 6. GROUND NOS. 2, 3 & 4 OF THE APPEAL READS AS UNDE R:- 2. THAT THE LD. CIT(A) HAS ERRED IN LAW IN DELE TING THE ADDITION MADE BY THE A.O. AMOUNTING TO RS.29,43,718/- BY D ISALLOWING THE CLAIM OF THE ASSESSEE U/S 80IC ON JOB WORK WHEREAS INCOME FROM JOB CHARGES CANNOT BE TREATED TO HAVE BEEN DERIVED BY THE UNDERTAKING BY MANUFACTURING OR PRODUCING ANY ARTIC LE OR THING NOT PROHIBITED BY 13 LH SCHEDULE. 3. THAT THE LD. CIT(A) HAS ERRED IN LAW IN DELE TING THE ADDITION MADE BY THE A.O. AMOUNTING TO RS.16,05,289/- BY RE DUCING THE ELIGIBLE PROFITS TO THE EXTENT OF 10% BY INVOKING T HE PROVISIONS OF SECTION 80IA(8) & 80IA(10) OF THE INCOME TAX ACT, 1 961. 4. THAT THE LD. C1T(A) HAS ERRED IN LAW IN DELE TING THE ADDITION MADE BY THE A.O. AMOUNTING TO RS. 17,32,506/- ON AC COUNT OF DISALLOWANCE U/S 801B, WHEREAS THE REVENUE IS ALREA DY IN APPEAL ON THIS ISSUE IN ASSESSEE'S OWN CASE FOR THE ASSTT. YEAR 2006-07. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS. IT IS OBSE RVED THAT WHILE DECIDING THE ABOVE ISSUES (GROUND NOS.2 TO 4), THE CIT(A) HAS FOLLOWED THE DECISION OF THE CIT-II, LUDHIANA DATED 27..4.2011 P ASSED IN THE CASE OF ACIT VS. M/S CREMICA AGRO FOODS PVT LTD., LUDHIANA FOR THE ASSESSMENT YEAR 2006-07. THE CIT(A) HAS DECIDED ALL THE ABOVE THREE ISSUES IN FAVOUR OF THE ASSESSEE ON THE BASIS OF FINDINGS GIVEN IN THE CASE OF M/S CREMICA AGRO FOODS PVT LTD., LUDHIANA M FOR THE ASSESSMENT YEAR 2006-07. WE BY OUR ORDER OF EVEN DATE IN THE CASE OF ACIT VS. M/S CREMICA AGRO FOODS PVT LTD., LUDHIANA IN ITA NO. 714/CHD/2014 HAVE SET ASIDE THE ORDER OF CIT(A) AND REMANDED THE IDENTICAL ISSUES TO THE FILE OF THE CIT(A) FOR A FRESH DECISION IN ACCORDANCE WITH LAW. FOR THE DETAILED REASONS GIVE N THEREIN, WE SET ASIDE 8 THE ORDER OF CIT(A) AND REMAND THE ISSUES TO THE FI LE OF CIT(A) WITH A DIRECTION TO DECIDE THE SAME AFRESH IN ACCORDANCE W ITH LAW AFTER AFFORDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE. FOR STATISTICAL PURPOSES, REVENUES APPEAL IS ALLOW ED. ITA NO. 297/CHD/2014 8. THE ONLY EFFECTIVE GROUND RAISED BY THE ASSESSEE READS AS UNDER:- 1. THAT THE AUTHORITIES BELOW HAVE ERRED IN NOT E XEMPTING DIVIDEND INCOME OF RS. 53,11,4477- (WRONGLY MENTION ED AT RS. 20,19,367/-) RECEIVED BY THE APPELLANT ON VARIOUS INVESTMENTS IN SHARES AND MUTUAL FUNDS WHICH WAS EX EMPT U/S 10(34) AND FOR WHICH CLAIM WAS DULY MADE IN THE SUBMISSIONS FILED BEFORE THE AO & CIT(A)-II BUT NOT MADE IN THE RETURN OF INCOME. 9. IT IS OBSERVED THAT THERE IS A DELAY OF ABOUT 89 1 DAYS IN FILING THE APPEAL. THE ASSESSEE HAS SUBMITTED AN APPLICATION F OR CONDONATION OF DELAY, WHICH READS AS UNDER;- LUDHIANA 25.03.2014 THE HON'BLE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH, BENCH 'B', KENDRIYA SADAN, SECTOR 9 CHANDIGARH RE: MRS. SECTOR FOOD SPECIALTIES LTD, LUDHIANA VS . ADDLL, CIT, LUDHIANA SUB:- APPLICATION FOR CONDONATION OF DELAY IN FILIN G THE APPEAL. SIR, THE APPELLANT HUMBLY SUBMITS AS UNDER:- 9 1. THAT THE APPEAL FILED BY THE REVENUE BEARING NO. 1063/2011 IS FIXED BEFORE THE HON'BLE BENCH FOR TODAY I.E. 25 .03.2014. 2. THAT THE APPELLANT IS FILLING APPEAL AGAINST THE ORDER OF CIT(A)-II DATED 08.08.2011 WHICH IS LATE BY 950 DAY S AS THE ORDER OF THE CIT(A)-LL WAS RECEIVED ON 18.08.2011. 3. THAT THE DELAY IN FILING THE APPEAL HAS OCCUR RED AS THE CLAIM FOR EXEMPTION OF DIVIDEND INCOME OF RS. 53,11 ,447/- (WRONGLY MENTIONED AT RS. 20,19,367/-) WAS MADE BEF ORE THE AO WHICH THE AO DID NOT DEAL WITH IN THE ASSESSMENT OR DER. 4. THAT SINCE THERE WAS NO SPECIFIC FINDING BY T HE AO IN THE ASSESSMENT ORDER THE APPELLANT BY AN OVERSIGHT DID NOT TAKE UP THE ISSUE IN APPEAL BEFORE THE LEARNED CIT(A)-II 5. THAT THIS INNOCENT MISTAKE HAD ALSO O CCURRED ON THE PART OF OUR CHARTERED ACCOUNTANT WHO DRAFTED TH E GROUNDS OF APPEAL BEFORE CIT(A)-II. 6. THAT APPEAL WAS NOT FILED BEFORE THE HON'BLE TRIBUNAL BECAUSE THE ISSUE WAS AGAIN NOT SPECIFICALLY DEALT WITH BY THE C!T(A)-II. 7. THAT THE FACT OF NON-FILING THE APPEAL CAME T O THE NOTICE OF OUR COUNSEL AT THE TIME OF PREPARING DEPARTMENT 'S APPEAL BEFORE THE TRIBUNAL WHICH WAS FIXED FOR 25.03.2014. AS SOON AS TRIE MISTAKE CAME TO TIGHT, IMMEDIATELY AN APPEAL BEFORE THE TRIBUNAL WAS DRAFTED AND FILED BEFORE THE HON'B LE TRIBUNAL. 8. THAT THE CLAIM WHICH IS NOW BEING MADE IN THE APPEAL BEFORE TRIBUNAL IS PURELY OF LEGAL NATURE AND IT IS HUMBLY PRAYED THAT THE DELAY IN FILING THE APPEAL BE CONDONED AND APPEAL BE ADMITTED. THANKING YOU, YOURS FAITHFULLY FOR MRS. BECTOR FOOD SPECIALTIES LTD SD/- PARVEEN GOEL EXECUTIVE DIRECTOR THROUGH SD/- SUBHASH AGARWAL ADVOCATE 10 IN SUPPORT OF THE ABOVE APPLICATION, SHRI SUBHASH A GGARWAL, ADVOCATE HAS SUBMITTED AN AFFIDAVIT WHICH READS AS UNDER:- AFFIDAVIT OF SUBHASH AGARWAL ADVOCATE S/O LATE SHRI MUNI LAI AGARWAL R/O 400/1, RANI JHANSI ROAD, CIVIL LINES, L UDHIANA - 141001 MADE ON THIS 24 TH DAY OF MARCH, 2014. 1. THAT I HAVE BEEN DEALING WITH THE GROUP CASES OF MRS. SECTOR FOOD SPECIALTIES LTD, LUDHIANA FOR THE LAST MANY YE ARS. 2. THAT THE APPELLANT ORDER FOR THE ASSESSMENT YE AR 2007-08 WAS PASSED BY THE LEARNED CIT(A)-I) ON 08.08.2011 WHICH WAS RECEIVED BY THE ASSESSEE ON 18.08.2011. 3. THAT THE ASSESSEE HAD CLAIMED EXEMPTION IN RES PECT OF DIVIDEND INCOME OF RS. 53,11,447/- (WRONGLY MENTIONED AT RS. 20,19,367/-) IN THE WRITTEN SUBMISSION FILED BEFORE THE AO AS WELL AS CIT(A)-H WHICH EXEMPTION BY AN OVERSIGHT WAS NOT CLAIMED IN THE RE TURN OF INCOME. A. THAT SINCE THE ISSUE REGARDING EXEMPTION OF DIVI DEND INCOME WAS NOT SPECIFICALLY DEALT WITH BY THE LOWER AUTHORITIE S AND THE CIT(A)-II HAD DECIDED ALL THE OTHER ISSUES IN FAVOUR OF THE A SSESSEE, I INADVERTENTLY DID NOT ADVISE MY CLIENTS TO FILE AN APPEAL BEFORE THE HON'BLE TRIBUNAL. 5. THAT THE MISTAKE CAME TO LIGHT ONLY WHEN I WEN T THROUGH THE FILE FOR PREPARING THE DEPARTMENT'S APPEAL. 6. THAT THE DELAY IN FILING THE APPEAL IS INADVER TENT AND THE SAME MAY PLEASE BE CONDONED. (SD. SUBHASH AGGARWAL) DEPONENT VERIFICATION I DO HEREBY SOLEMNLY DECLARE AND AFFIRM THAT THE AB OVE AFFIDAVIT IS TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BE LIEF AND NOTHING MATERIAL HAS BEEN CONCEALED. (SD. SUBHASH AGGARWAL) DEPONENT DATED: 25 TH MARCH, 2014 11 10. WE HAVE HEARD THE RIVAL SUBMISSIONS. THE CONTEN TION OF THE ASSESSEE IS THAT IT HAD CLAIMED EXEMPTION IN RESPECT OF DIVIDE ND INCOME OF RS. 53,11,447/- (WRONGLY MENTIONED AS 20,19,367/-) IN T HE WRITTEN SUBMISSIONS FILED BEFORE THE ASSESSING OFFICER AS WELL AS CIT(A ), WHICH EXEMPTION BY AN OVERSIGHT WAS NOT CLAIMED IN THE RETURN OF INCOME. IN THE AFFIDAVIT, SH. SUBHASH AGGARWAL SUBMITTED THAT SINCE THE ISSUE REG ARDING DIVIDEND INCOME WAS NOT SPECIFICALLY DEALT WITH BY THE LOWER AUTHOR ITIES AND THE CIT(A) HAD DECIDED ALL THE OTHER ISSUES IN FAVOUR OF THE ASSES SEE, HE INADVERTENTLY DID NOT ADVISE HIS CLIENT TO FILE AN APPEAL BEFORE THE TRIBUNAL. IT IS APPARENT FROM THE ORDER OF THE CIT(A) THAT ASSESSEE EARNED DIVIDEND INCOME OF RS. 53,11,447/- WHICH WAS CLAIMED EXEMPT U/S 10(34) & 1 0(35) OF THE ACT, DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IT WA S SHOWN AS TAXABLE IN THE RETURN OF INCOME AS THE ASSESSMENT HAS BEEN MADE U/ S 115JB, IT DID NOT AFFECT ANY TAXABILITY OF THE INCOME. CONSIDERING TH E ENTIRE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, WE ARE SATISFIED THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FROM FILING THE PRESE NT APPEAL. AT THE SAME TIME, IT IS ALSO WELL SETTLED LAW THAT LENGTH OF DE LAY IS NOT TO MATTER IN THE CONTEXT OF CONDONATION OF DELAY. THE JURISDICTION T O CONDONE DELAY SHOULD BE EXERCISED LIBERALLY. THE MATTER RELATING TO COND ONATION OF DELAY SHOULD BE JUDGED BROADLY AND NOT IN A PEDANTIC MANNER. IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. MST. KATJI [(1987) 167 ITR 471 , THE HON'BLE SUPREME COURT HELD THAT WHEN SUBSTANTIAL JUSTICE AND TECHNI CAL CONSIDERATIONS ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED, FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF NON-DELIBERATE DELAY. IT IS A LSO WELL SETTLED THAT ORDINARILY, A LITIGANT DOES NOT STAND TO BENEFIT BY LODGING AN APPEAL LATE. IN 12 FACT, HE RUNS A SERIOUS RISK. IN VIEW OF THE ABOVE, WE CONDONE THE DELAY IN FILING THE APPEAL. 11. SINCE WE HAVE RESTORED THE MAIN ISSUE TO THE CI T(A) AND, THEREFORE, WE THINK IT APPROPRIATE TO REMAND THIS ISSUE ALSO T O THE CIT(A) WITH THE DIRECTION TO CONSIDER THE CONTENTION OF THE ASSESSE E AND DISPOSE OF THE SAME IN ACCORDANCE WITH LAW. 12. FOR STATISTICAL PURPOSES, BOTH THE APPEALS ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14.10.2015 SD/- SD/- (ANNAPURNA MEHROTRA) (H.L.KARWA) ACCOUNTANT MEMBER VICE PRESIDENT DATED: 14 TH OCTOBER, 2015 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR