DCIT / Cir - 5 /KOL., Kolkata V. M/s Hamilton & Company Limited., Kolkata

ITA 1865/KOL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92053 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-07-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 18-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIL KUMAR PANDE
• Assessee Lawyers: S M SURANA
• Keywords: Business expenditure; Assessment record; Condonation of delay
• Section: 68; 14A

Judgement Text

I .T.A. NO . 1865 / KOL ./20 1 2 ASSESSMENT YEAR: 200 9 - 20 10 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B BENCH, KOLKATA BEFORE SHRI P.K. BANSAL , ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH , JUDICIAL MEMBER I .T.A. NO. 1 865 / KOL / 20 1 2 ASSESSMENT YEAR : 200 9 - 20 10 DEPUTY COMMISSIONER OF INCOME TAX, ..... ........ . APPELLANT CIRCLE - 5 , KOLKATA, AAYAKAR BHAWAN, P - 7, CHOWRINGHEE SQUARE, KOLKATA - 700 069 - VS. - M/S. HAMILTON & COMPANY LIMITED, ......... .... . RESPONDE NT 13A, NEW ROAD, ALIPORE, KOLKATA - 700 027 [PAN : AA A C H 8178 B ] APPEARANCES BY: SHRI ANIL KUMA R PANDE, JCIT, SR. D.R., FOR THE DEPARTMENT SHRI S.M. SURANA , ADVOCATE, FOR THE ASSESSEE DATE OF CONCLUDING THE HEARING : JUNE 30 , 2 01 5 DATE OF PRONOUNCING THE ORDER : JU LY 03 , 201 5 O R D E R PER P.K. BANSAL : THIS A PPEAL HA S BEEN FILED BY T HE REVENU E AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS) - VI , KOLKATA D ATED 09 . 0 7 .20 1 2 FOR THE ASSESSMENT YEAR 200 9 - 10 BY TAKING THE FOLLOWING EFFECT IVE GROUND S OF APPEAL: - ( 1 ) EXPENDITURE OF RS.2,17,790/ - DEALING WITH SRINAGAR TRAVELLING EXPENS ES AND RS.68,645/ - DEALING WITH HOTEL EXPENSES AT MACAO BEING NON BUSINESS EXPENDITURE IS NOT ALLOWABLE AND SUGGESTED FOR APPEAL BEFORE ITAT. ( 2 ) INTEREST FREE LOAN RECEIVED FROM M/S. EXCEL INFOTECH LIMITED IS NOTING BUT BOOK ADJUSTMENT AND THE SAME IS I .T.A. NO . 1865 / KOL ./20 1 2 ASSESSMENT YEAR: 200 9 - 20 10 PAGE 2 OF 3 UNEXPL AINED CASH CREDIT U/S 68 OF THE I.T. ACT, AND IS SUGGESTED FOR APPEAL BEFORE ITAT. ( 3 ) THE DELETION MADE BY CIT(A), BY PROPORTIONING EXPENDITURE ON MATCHING BASIS TO THE TUNE OF RS.15,76,782/ - NOT BEING LOGICAL AND ATTRACTED SECTION 14A READ WITH RULE 8D(2) O F THE I.T. RULES, FURTHER APPEAL IS SUGGESTED. 2. T HIS APPEAL HAS BEEN FIXED FROM TIME TO TIME. OPPORTUNITY HAS BEEN GIVEN TO THE R EVENUE TO CORRECT THE DEFECTS AS WELL AS FILE THE CONDONATION PETITION. THE CONDONATION PETITION WAS FILED AND WE NOTED THAT THERE IS A DELAY OF 72 DAYS. OUT OF THE DELAY OF 72 DAYS, TIME FROM 12.02.2012 TO 05.12.2012 HAS EXPIRED JUST WAITING FOR COMMUNICATION FOR FILING OF THE SECOND APPEAL. THE PAPERS FOR FILING OF THE SECOND APPEAL WERE PREPARED ONLY ON 10.12.2012. THE ORDER HAS BEEN RECEIVED BY THE REVENUE ON 12.08.2012 AND THE LAST DATE OF FILING OF APPEAL WAS 10.10.2012 , BUT IT IS ONLY BETWEEN 10.10.2012 TO 12.10.2012. THE ASSESSMENT RECORD WAS GATHERED AND THE ASSESSMENT ORDER WAS XEROXED BETWEEN 15.10.2012 TO 19.12.2012. THIS SHOWS THE NEGLIGENCE ON THE PART OF THE REVENUE TO FILE THE APPEAL WITHIN TIME. THE REASONS GIVEN FOR CONDONATION OF DELAY DO NOT PROVE THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE TO FILE THE APPEAL WITHIN THE DUE DATE. ALL THE REASONS GIVEN DATE - WISE DENOTE THE NEGLIGENCE ON THE PART OF THE REVENUE TO FILE THE APPEAL WITHIN DUE DATE. BUT STILL KEEPING IN VIEW THE FACT THAT ASSESSEE REMAINS BUSY DUE TO HUGE PENDENCY OF TIME BARRING CASES, WE CONDONE THE DELAY AND ADMIT THE APPEAL. WE ALSO NOTE D THAT EVEN THOUGH THE R EVENUE HAS BEEN GIVEN OPPORTUNITY TO AMEND THE GROUNDS OF APPEAL BUT THE R EVENUE DID NOT AMEND THE GROUNDS OF APPEAL AND HAS FILED BEFORE THIS TRIBUNAL THE GROUNDS AS HAS BEEN SUGGESTED BY THE DCIT, CIRCLE - 5, KOLKATA FOR FILING THE APPEAL BEFORE THE ITAT TO THE CIT, KOLKATA - II, KOLKATA. CIT - II, KOLKATA APPROVED THE SUGGESTION BUT THE R EVENUE DID NOT FILE THE GROUNDS BEFORE US IN ACCORDANCE WITH THE RULES. ON THIS BASIS ITSELF, WE DISMISS THE GROUNDS TAKEN BY THE REVENUE AS NOT ADMITT ED, AS THE SUGGESTION FOR FILING THE APPEAL CANNOT BE REGARDED TO THE GROUNDS OF APPEAL BEFORE THE TRIBUNAL. IF THE REVENUE SO CHOOSES THE GROUNDS, IT MAY FILE ANOTHER I .T.A. NO . 1865 / KOL ./20 1 2 ASSESSMENT YEAR: 200 9 - 20 10 PAGE 3 OF 3 APPEAL BY PLACING THE GROUNDS OF APPEAL IN ACCORDANCE WITH THE ITAT RULES. 3 . IN THE RE SULT, THE APPEAL FILED BY THE REVENU E I S DISMISS ED AS NOT ADMITTED . ORDER PRONOUNCED IN THE OPEN COURT ON JU LY 3 , 201 5 . SD/ - SD/ - MAHAVIR SINGH P.K. BANSAL ( JUDICIAL MEMBER) ( ACCOUNTANT MEMBER) KOLKATA, T HE 3 RD D AY OF JU LY , 201 5 COPIES TO : (1) DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE - 5, KOLKATA, AAYAKAR BHAWAN, P - 7, CHOWRINGHEE SQUARE, KOLKATA - 700 069 (2) M/S. HAMILTON & COMPANY LIMITED, 13A, NEW ROAD, ALIPORE, KOLKATA - 700 027 (3) COMMI SSIONER OF INCOME - TAX (APPEALS) (4) COMMISSIONER OF INCOME TAX ( 5 ) THE DEPARTMENTAL REPRESENTATIVE ( 6 ) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLA TE TRIBUNAL KOLKATA B ENCHES, KOLKATA LAHA/SR. P.S .