Graffiti (India) Pvt. Ltd., Ahmedabad V. The Income Tax Officer, Ward-4(1), Now DCIT, Circle-2(1)(1), Ahmedabad

ITA 180/AHD/2016

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1833 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 23-03-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 25-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Keywords: Gift; Depreciation; Condonation of delay; Revised return

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH AHMEDABAD BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER ITA NO. 180/AHD/2016 ASSESSMENT YEAR :2011-12 GRAFFITI (INDIA) PVT. LTD. 601 & 602, REMBRANDT, OPP. ASSOCIATE PETROL PUMP, C.G.ROAD, AHMEDABAD 380006 V S . DCIT, CIRCLE 2(1)(1), AHMEDABAD PAN NO. AABCG5928R (APPELLANT) .. (RESPONDENT) ' / BY ASSESSEE NONE $ ' / BY REVENUE SMT. SONIA KUMAR, SR. D.R. % ' /DATE OF HEARING 23.03.2016 &'() ' / DATE OF PRONOUNCEMENT 06.04.2016 O R D E R PER ANIL CHATURVEDI, ACCOUNTANT MEMBER THIS APPEAL FILED BY ASSESSEE IS AGAINST THE ORDER OF CIT(A)-2, AHMEDABAD, DATED 24.11.2015 FOR THE ASSESSMENT YEAR 2011-12. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI ALS ON RECORD ARE AS UNDER: ITA NO.180/AHD/2016 A.Y. 11-12 [GRAFFITI (INDIA) PV T. LTD. VS. DCIT] PAGE 2 3. THE ASSESSEE COMPANY IS STATED TO BE ENGAGED IN THE BUSINESS OF TRADING IN CERAMIC TILES WITH ITS BRAND NAMES GRAFFITI AN D HARMONY. ASSESSEE ELECTRONICALLY FILED ITS RETURN OF INCOME FOR A.Y. 2011-12 ON 30.09.2011 DECLARING TOTAL INCOME OF RS.3,16,100/- AND THEREAF TER A REVISED RETURN WAS FILED ON 07.08.2012 DECLARING SAME TOTAL INCOME BEC AUSE IN ORIGINAL RETURN, TAX WAS CALCULATED AT GENERAL RATE, WHEREAS IN REVISED RETURN, THE TAX PAYABLE WAS WORKED OUT U/S.115JB OF THE ACT. THE CASE WAS SELE CTED FOR SCRUTINY AND THEREAFTER ASSESSMENT WAS FRAMED U/S.143(3) OF THE ACT VIDE ORDER DATED 28.03.2014 AND TOTAL INCOME WAS DETERMINED AT RS.7, 16,473/-. AGGRIEVED BY THE ORDER OF ASSESSING OFFICER, ASSESSEE CARRIED TH E MATTER BEFORE THE LD. CIT(A) WHO VIDE ORDER DATED 24.11.2015 (IN APPEAL N O. CIT(A) 2/178/WD.4(1)/2014-15) DISMISSED THE APPEAL OF ASSE SSEE. AGGRIEVED BY THE ORDER OF LD. CIT(A), ASSESSEE IS NOW IN APPEAL BEFO RE US AND HAS RAISED FOLLOWING GROUNDS: 1. THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN NOT CONDONING THE DELAY IN FILING OF APPEAL OF ONLY 4 DAYS, DELAY IS REQUESTED TO BE CONDONED. 2. THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING WITHDRAWAL OF DEPRECIATION OFRS.69,579/-, SUCH DEPRECIATION IS RE QUIRED TO BE ALLOWED. 3. THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING DISALLOWANCE OF RS.3,39,802/- ON ACCOUNT OF GIFT EXPENSE, WHICH IS REQUESTED TO BE DELETED. 4. ON THE DATE OF HEARING, AN ADJOURNMENT APPLICATI ON WAS FILED ON BEHALF OF ASSESSEE BUT THE SAME IS REJECTED AND THEREAFTER WE PROCEED TO DISPOSE OF THE APPEAL, EX PARTE, QUA THE ASSESSEE. 4.1 BEFORE US, LD. D.R. SUPPORTED THE ORDERS OF LOW ER AUTHORITIES. ITA NO.180/AHD/2016 A.Y. 11-12 [GRAFFITI (INDIA) PV T. LTD. VS. DCIT] PAGE 3 5. WE HAVE HEARD THE LD. D.R. AND PERUSED THE MATER IAL ON RECORD. ON PERUSING THE ORDER OF LD. CIT(A), WE FIND THAT THER E WAS A DELAY OF 4 DAYS ON THE PART OF ASSESSEE IN FILING OF APPEAL BEFORE LD. CIT(A). LD. CIT(A) APART FROM NOT CONDONING THE DELAY, HAS NOTED THAT THE AP PEAL FEES WAS PAID AFTER THE FILING OF APPEAL. HE THEREFORE DISMISSED THE APPEA L OF ASSESSEE. IT IS A SETTLED LAW THAT LD. CIT(A) HAS NO JURISDICTION TO DISMISS THE APPEAL OF THE ASSESSEE WITHOUT GOING INTO THE MERITS OF THE ISSUE BEFORE H IM. EVEN IN AN EX PARTE ORDER THE LD. CIT(A) SHOULD HAVE DECIDED THE GROUNDS OF A PPEAL OF THE ASSESSEE ON MERITS THEREOF. AS FAR AS CONDONATION OF DELAY IN FILING THE APPEAL IS CONCERNED, WE FIND THAT IN THE CASE OF COLLECTOR LA ND ACQUISITION VS. MST. KATIJI & ORS. REPORTED IN (1987) AIR 1353, THE HON BLE SUPREME COURT HAS NOTED THAT REFUSING TO CONDONE DELAY CAN RESULT IN A MERITORIOUS MATTER BEING THE THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF J USTICE BEING DEFEATED. IT FURTHER HELD THAT THERE IS NO PRESUMPTION THAT DELA Y IS OCCASIONED DELIBERATELY OR ON ACCOUNT OF MALA FIDES AND A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY BUT ON THE CONTRARY HE RUNS A SERIOUS RISK . IT HAS FURTHER HELD THAT WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATION ARE PITTED AGAINST EACH OTHER, CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERR ED FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON DELIBERATE DELAY. CONSIDERING THE AFORESAID FACTS AND IN VIEW OF THE DECISION IN CASE OF COLLECTOR LAND ACQUISITION VS. MST. KATIJI & ORS. ( SUPRA), WE ARE OF THE VIEW THAT THE DELAY IN FILING OF APPEAL BEFORE LD. CIT(A ) BE CONDONED. WE ACCORDINGLY CONDONE THE DELAY. SINCE, THE DELAY IS CONDONED WE ARE OF THE VIEW THAT IN THE LARGER INTEREST OF JUSTICE, THE AS SESSEE BE GIVEN ONE MORE OPPORTUNITY TO PRESENT ITS CASE BEFORE LD. CIT(A). WE THEREFORE REMIT ALL THE GROUNDS RAISED IN THE PRESENT APPEAL BACK TO THE FI LE OF LD. CIT(A) FOR HIM TO DECIDE THE ISSUE AFRESH ON MERITS AND IN ACCORDANCE WITH LAW. NEEDLESS TO STATE THAT LD. CIT(A) SHALL GRANT ADEQUATE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. IN VIEW OF OUR DECISION TO RESTORE THE VARIOUS GROU NDS RAISED BY ASSESSEE TO LD. ITA NO.180/AHD/2016 A.Y. 11-12 [GRAFFITI (INDIA) PV T. LTD. VS. DCIT] PAGE 4 CIT(A), WE ARE NOT ADJUDICATING ON MERITS THE GROUN DS OF THE APPEAL RAISED BY THE ASSESSEE. THUS, THE APPEAL OF ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 06/04 /2016 SD/- SD/- ( SHAILENDRA KUMAR YADAV) (ANIL CHA TURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBE R AHMEDABAD: DATED. 06/04/2016 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- *+ , -. / APPELLANT /+ 01-. / RESPONDENT 2+ 345 6 / CONCERNED CIT 4+ 6- , / CIT (A) 9+ :; < 045 , 45) = 3 / DR, ITAT, AHMEDABAD >+ < ?@ A B / GUARD FILE. BY ORDER/ ,/= ,$ , 45) = 3