ACIT, Circle 1, Midnapore, Paschim Medinipur V. M/s. Midnapore Electrical Construction Co-op. Society Ltd., Paschim Medinipur

ITA 1094/KOL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2511 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2010
• Appeal Filed By: Department
• Bench Allotted: A
• Next Hearing Date: 29-06-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 24-06-2009
• Court: TRIBUNAL
• Department Lawyers: SRI M H PANDAV
• Assessee Lawyers: SRI SOUMITRA CHOUDHURY
• Keywords: Reasonable cause; Assessment record

Judgement Text

, A , , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA () BEFORE . . . . . . . . , , , , , !' !' !' !' /AND . .. . . .. .! !! !, , , , # , ,, , [BEFORE HONBLE SRI D. K. TYAGI, JM & HONBLE SRI C. D. RAO , AM] '$ '$ '$ '$ / ITA NO. 1094 /KOL/2009 %&' !() %&' !() %&' !() %&' !()/ // / ASSESSMENT YEAR : 2002-03 ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-1, MIDNAPORE. M/S. MIDNAPORE ELECTRICAL CONSTRUCTION CO- OP SOCIETY LTD. (PA NO. AAALM 0309 A)) (+, / APPELLANT ) - !& - - VERSUS -. (.+,/ RESPONDENT ) +, / 0 / FOR THE APPELLANT: / SHRI SRI M. H. PANDAV .+, / 0 / FOR THE RESPONDENT : / SHRI SRI SOUMITRA CHOUDHURY 1 / ORDER PER D. K. TYAGI, JM ( . . . . . . . . , , , , ) THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED A GAINST THE ORDER OF THE LD. CIT(A), KOLKATA DATED 25.02.2009 FOR THE ASSESSMEN T YEAR 2002-03 ON THE FOLLOWING GROUNDS : 1. THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITI ON OF RS.63.06.480/- MADE BY THE AO ON ACCOUNT OF REDUCTION FROM GROSS RECEIPT OF CONTR ACT. THE CIT(A)S ORDER ALSO DOES NOT THE YEAR WISE FIGURES OF DISCLOSURE OF GOODS CO NTRACT RECEIPT OF RS. 63,06,480/- . AS THE SUBMISSION OF THE ASSESSEE ACCEPTED BY THE CIT( A) FOR DELETING THE ADDITION. 2. THE LD.CIT(A) HAS ERRED IN REDUCING THE ADDITION MADE ON ACCOUNT OF EXPENSES TO 10% FROM 50% MADE BY AO, ALTHOUGH THE AO & CIT(A) B OTH HAVE MADE THE ADDITION ON ESTIMATION BASIS. 3. THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITIO N OF RS.85,60,674/- MADE BY THE AO ON ACCOUNT OF DIFFERENCE IN PAYMENT MADE TO SUB CON TRACTOR, M/S. NATRAJ TRADERS CONSIDERING THE ASSESSEES SUBMISSION THAT THE SUB- CONTRACTOR MAINTAINED THE ACCOUNTS ON RECEIPT BASIS AND THE ASSESSEE MAINTAINED ACCOUN TS ON MERCANTILE BASIS OF ACCOUNTING. WHEREAS ON VERIFICATION OF AUDIT REPORT IN FORM NO.3CD IT IS FOUND THAT THE SUB CONTRACTOR MAINTAINED ITS ACCOUNTS ON MERCANTIL E BASIS. THUS, LD.CIT(A) HAS DELETED THE ADDITION ON THE MISLEADER FACTS SUBMITT ED BY THE ASSESSEE. 2. THIS APPEAL OF THE REVENUE IS DELAYED BY 49 DAY S. THE REVENUE HAS FILED A CONDONATION PETITION, WHEREIN THE REASONS FOR DELAY HAS BEEN MENTIONED AS UNDER : 06.03.2009 CIT(A)S ORDER RECEIVED BY THE CIT X IX, KOLKATA. 05.05.2009 LAST DATE OF FILING 2 ND APPEAL 16.06.2009 DIRETION FOR FILING 2 ND APPEAL ISSUED BY THE CIT-XIX, KOLS OFFICE DATED 15/06/2009, WHICH WAS RECEIVED IN THIS OFFI CE ON 16/06/2009 ALONG WITH ASSESSMENT RECORD. 15.06.09 TO 19.06.09 THE AO WAS ON LEAVE, BUT THE P APERS RELATING TO 2 ND APPEAL HAVE BEEN PREPARED. 20 TH & 21 ST JUNE 09 BEING SATURDAY AND SUNDAY 22.06.2009 SECOND APPEAL PAPERS ARE BEING SUBMITTED . 2 3. AT THE TIME OF HEARING BEFORE US, THE LD. COUNSE L FOR THE ASSESSEE SUBMITTED THAT THE REVENUE HAS NOT SHOWN ANY REASONABLE CAUSE FOR FILING THE IMPUGNED APPEAL BELATEDLY. IT WAS ALSO SUBMITTED THAT THE ITAT, KO LKATA BENCHES, VIDE ITS ORDER DATED 26.5.2010 IN ITA NO. 231/KOL/10 IN THE CASE OF ITO VS. SANKAR LAL SAHA AND ALSO VIDE ITS ORDER DATED 18.6.10 IN ITA NO.703/KOL/10 IN THE CASE OF ITO VS. M/S. SATYENDRA NATH RAKSHIT HAS NOT CONDONED THE DELAY IN FILING T HE APPEAL IN SIMILAR CIRCUMSTANCES. HE, THEREFORE, URGED THAT THERE BEING NO REASONABLE CAUSE BY THE REVENUE TO FILE THE IMPUGNED APPEAL BELATEDLY, THE SAME SHOULD NOT BE A DMITTED. 4. ON THE OTHER HAND, THE LD. DR SUBMITTED THAT THE DELAY OF 49 DAYS SHOULD BE CONDONED SINCE THE DELAY WAS NOT DELIBERATELY MADE BY THE DEPARTMENT AND AN AFFIDAVIT TO THAT RESPECT HAS BEEN FILED 5. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. WE FIND THAT THERE IS N OTHING IN THE SAID CONDONATION PETITION FILED BY THE REVENUE, WHICH GIVES REASON FOR FILING OF THE APPEAL BELATEDLY. IN THE ABOVE CIRCUMSTANCES AND CONSIDERING THE DECISION OF THE T RIBUNAL ON WHICH RELIANCE HAS BEEN PLACED BY THE LD. COUNSEL FOR THE ASSESEE, WE ARE C ONSTRAINED TO HOLD THAT THE REVENUE HAS NOT SHOWN SUFFICIENT REASON FOR NOT PRESENTING THE IMPUGNED APPEAL IN TIME. THUS, WE ARE UNABLE TO CONDONE THE SAID DELAY IN FILING T HE IMPUGNED APPEAL AND DO NOT ADMIT THE SAME. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED AS UNADMITTED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- . .. . . .. .! !! !, , , , # . . . . . . . . , , , , (C. D. RAO) (D. K. TYAGI) ACCOUNTANT MEMBER JUDICIAL MEMBER ( (( (# # # #) )) ) DATED : 29 TH JUNE, 2010 !23 %&45 %6! JD.(SR.P.S.) 1 / .%%7 87(9- COPY OF THE ORDER FORWARDED TO: 1. +, /APPELLANT - A CIT, CIRCLE-1, MIDNAPORE 2 .+, / M/S. MIDNAPORE ELECTRICAL CONSTRUCTION CO-OP. SOC IETY LTD., ZILLA PARISHAD COMPOUND, PO MIDNAPORE, DIST PASCHIM MEDINIPUR 3. %1&/ THE CIT, 4. %1& ()/ THE CIT(A), 5. !?% .%& / DR, KOLKATA BENCHES, KOLKATA 7 .%/ TRUE COPY , 1&@/ BY ORDER , A '5 / DEPUTY REGISTRAR .