ITO, New Delhi V. M/s Safe Ensure Administrative Facilities Pvt. Ltd., New Delhi

ITA 2139/DEL/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3672 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 1 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 20-06-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 20-05-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MONGA
• Keywords: Additional evidence; Condonation of delay
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `E: NEW DELHI BEFORE SHRI C.L.SETHI, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER I.T. A. NO.2139/DEL/2009 ASSESSMENT YEAR : 2006-07 INCOME-TAX OFFICER, M/S. SAFE ENSURE ADMINISTRATI VE WARD 7(2), NEW DELHI. VS. FACILITIES PVT. LTD., B-13, ANSAL CHAMBERS, 1-3 BHIKAJI CAMA PLACE, NEW DELHI. PAN: AAICS5847E C.O. NO.335/DEL/2010 (IN I.T. A. NO.2139/DEL/2009) ASSESSMENT YEAR : 2006-07 M/S. SAFE ENSURE ADMINISTRATIVE INCOME-TAX OFFICER , FACILITIES PVT. LTD., VS. WARD 7(2), NEW DELHI. B-13, ANSAL CHAMBERS, 1-3 BHIKAJI CAMA PLACE, NEW DELHI. PAN: AAICS5847E (APPELLANTS) (RESPONDEN TS) DEPARTMENT BY: SHRI A.K. MONGA, SR. DR. ASSESSEE BY : SHRI ASHU GOEL, CA. O R D E R PER C.L. SETHI, JUDICIAL MEMBER: THE REVENUE HAS FILED PRESENT APPEAL AGAINST THE OR DER DATED 30.04.2009 PASSED BY THE LEARNED COMMISSIONER OF IN COME-TAX (APPEALS) IN 2 THE MATTER OF AN ASSESSMENT MADE BY THE ASSESSING O FFICER UNDER SEC. 143(3) OF THE INCOME-TAX ACT, 1961 (THE ACT), FOR THE ASSE SSMENT YEAR 2006-07. 2. THE ASSESSEE HAS ALSO FILED CROSS OBJECTION IN R ELATION THERETO. 3. WE SHALL FIRST TAKE THE APPEAL FILED BY THE REVE NUE. 4. THE FIRST GROUND OF APPEAL RAISED BY THE REVENUE IS DIRECTED AGAINST THE CIT(A)S ORDER IN DELETING THE DISALLOWANCE OF RS.4 ,24,131/- AND RS.55,735/- ON ACCOUNT OF LATE DEPOSIT OF EMPLOYEES CONTRIBUTION TO PROVIDENT FUND AND ESI RESPECTIVELY. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD. IN THIS CASE, IT WAS FOUND BY THE CIT(A) THAT DEPOSITS TOWARDS ESI AND EPF WERE MADE BY THE ASSESSEE BEFORE THE DUE DATE OF TH E FILING OF RETURN OF INCOME AS EVIDENT BY THE COPIES OF CHALLANS FURNISH ED BY THE ASSESSEE. THE AO MADE THE ADDITION FOR THE REASON THAT AMOUNTS WE RE NOT DEPOSITED AS PER PROVISIONS OF SEC. 36(1)(VA) OF THE ACT. THIS ISSU E IS NO MORE RES INTEGRA AS IT HAS BEEN SETTLED BY THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. ALOM EXTRUSIONS LTD. (2009) 319 ITR 306 (SC), WHERE IN IT WAS HELD THAT OMISSION OF THE SECOND PROVISO TO SEC.43B OF THE AC T IS CURATIVE IN NATURE AND WOULD APPLY RETROSPECTIVELY WITH EFFECT FROM AP RIL 1, 1988. SINCE OMISSION OF THE SECOND PROVISO HAS BEEN HELD TO BE OPERATIVE FROM APRIL 1, 1988, THE PAYMENT OF PF AND ESI CONTRIBUTION SHALL REMAIN ALLOWED PROVIDED 3 THE SAME IS PAID WITHIN DUE DATE OF THE FILING OF T HE RETURN OF INCOME APPLICABLE TO THE ASSESSEES CASE. WE, THEREFORE, UPHOLD THE ORDER OF THE LEARNED CIT(A) IN DELETING THE ADDITION. 6. GROUND NO.2 IS DIRECTED AGAINST THE CIT(A)S ORD ER IN DELETING THE ADDITION OF RS.22,88,661/- MADE BY THE AO BY ESTIMA TING NET PROFIT AT 25% OF GROSS RECEIPTS. 7. IN THIS CASE, THE ASSESSEE FILED ITS RETURN OF I NCOME DECLARING TOTAL INCOME AT RS.98,247/- ON 27.11.2006. THE CASE WAS SELECTED FOR SCRUTINY. NOTICE UNDER SEC. 143(2) WAS THEN ISSUED AND SERVED UPON THE ASSESSEE. IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE S AUTHORIZED REPRESENTATIVE APPEARED BEFORE THE AO AND FILED THE REQUISITE DETAILS AND PRODUCED THE REQUISITE DOCUMENTS CALLED FOR. BOOKS OF ACCOUNTS WERE PRODUCED, WHICH WERE VERIFIED ON TEST CHECK BASIS. THE AO DISCUSSED THE CASE IN DETAIL WITH THE ASSESSEES AR. 8. IN THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS NOTICED BY THE ASSESSING OFFICER THAT THE ASSESSEE HAD DEBITED A S UM OF RS.73,00,132/- TO THE PROFIT AND LOSS ACCOUNT ON ACCOUNT OF SALARY AN D WAGES PAID. HOWEVER, THE AO COMPUTED THE TOTAL ANNUAL SALARY PAYABLE BY THE ASSESSEE AT RS.31,32,000/- BY TAKING AVERAGE MONTHLY SALARY OF RS.3,000/- IN RESPECT OF 87 PERSONNEL PER MONTH. THE ASSESSEE SUBMITTED BEF ORE THE AO THAT AVERAGE 4 NUMBER OF EMPLOYEES EMPLOYED PER MONTH BY THE ASSES SEE WERE IN THE RANGE OF 200 TO 250. THIS CLAIM OF THE ASSESSEE WAS NOT ACCEPTED BY THE AO WHO OBSERVED THAT AS PER THE ANNUAL EMPLOYEES PROVIDEN T FUND, THE TOTAL NUMBER OF EMPLOYEES WAS 224. THE AO ALSO OBSERVED THAT AC TUAL HEAD COUNT WOULD BE MUCH LOWER AS THIS FIGURE OF 224 ALSO INCLUDES T HE PERSONNEL WHO WORKED EVEN FOR A COUPLE OF DAYS DURING THE MONTH. THE AO , THEREFORE, ASKED THE ASSESSEE TO FURNISH SITE-WISE BREAK-UP OF UTILIZATI ON/CONSUMPTION OF RAW- MATERIALS AND CONSUMABLES AND PRODUCE THE BILLS/VOU CHERS OF VARIOUS EXPENSES DEBITED TO THE PROFIT & LOSS ACCOUNT. THE AO THEN REJECTED THE BOOKS OF ACCOUNT UNDER SEC. 145(3) AND ESTIMATED TH E NET PROFIT AT 25% OF THE GROSS RECEIPT OF RS.91,54,643/-. THE AO THEN WORKE D OUT THE PROFIT OF RS.22,88,661/- AND BROUGHT THE SAME TO TAX. 9. BEING AGGRIEVED, THE ASSESSEE PREFERRED AN APPEA L BEFORE THE LEARNED CIT(A). IN THE COURSE OF APPELLATE PROCEEDINGS, TH E LEARNED CIT(A) VIDE ORDER-SHEET ENTRY DATED 18.12.2008 ASKED THE ASSESS EE TO FILE CERTAIN DETAILS AS MENTIONED IN PARA 3 OF THE CIT(A)S ORDER. THE ASSESSEE VIDE REPLY DATED 6.01.2009 SUBMITTED THE DETAILS OF SALARY MONTH-W ISE, EMPLOYEE-WISE, RECONCILING THE SAME WITH THE LEDGER. THE ASSESSEE ALSO SUBMITTED THE DETAILS OF TRAVELLING AND CONVEYANCE, COMMUNICATION EXPENSE S AND INCOME-TAX DETAILS OF ASSESSEES OTHER SISTER CONCERNS. THE D ETAILS FILED BY THE ASSESSEE 5 WERE SENT BY THE LEARNED CIT(A) TO THE AO. THE CIT (A) ALSO INTIMATED THE AO THAT THE ASSESSEE CLAIMED BEFORE HIM THAT ALL TH ESE DETAILS WERE FURNISHED FROM TIME TO TIME DURING THE ASSESSMENT PROCEEDINGS AND NO ADDITION SHOULD HAVE BEEN MADE WITHOUT EXAMINING AND APPRECIATING T HESE DETAILS. THE CIT(A), THEREFORE, DIRECTED THE AO TO VERIFY THE DE TAILS AND GIVE COMMENTS ON ADDITIONS MADE GROUND-WISE. THE AO THEN SUBMITT ED HIS REMAND REPORT DATED 20.02.2009 BY STATING AS UNDER:- -------------AT PARA 7 OF THE ASSESSMENT ORDER IT IS STATED THAT AS PER WAGE REGISTER PRODUCED BY THE AR ON 22-04-2 008, ON AN AVERAGE THE ASSESSEE COMPANY EMPLOYED 87 PERSONN EL PER MONTH WITH AN AVERAGE MONTHLY SALARY OF RS.3,000/-. THEREFORE, THE TOTAL ANNUAL SALARY PAID COMES TO RS .31,32,000/-. HOWEVER, THE ASSESSEE COMPANY HAS DEBITED A SUM OF RS.73,00,132/- TO THE P & L A/C ON ACCOUNT OF SALAR Y & WAGES PAID. VIDE QUESTIONNAIRE DT. 03-09-2005 THE ASSESS EE COMPANY WAS REQUIRED TO RECONCILE THE ABOVE FACTS. 2. THE AR VIDE HIS LETTER DT. 10-09-2008 HAS SUBMIT TED AT PARA 6 THAT THE AVERAGE NUMBER OF EMPLOYEES EMPLOYE D PER MONTH CALCULATED ON THE BASIS OF ANNUALIZED AVERAGE IS IN THE RANGE OF 200-250. HOWEVER, THIS CLAIM IS TOTALLY F ALSE AND BASELESS IN VIEW OF THE FACT THAT AS PER THE ANNUAL EMPLOYEES PROVIDENT FUND RETURN FOR THE PERIOD 01-04-2005 TO 31-03- 2006, THE TOTAL NUMBER OF EMPLOYEES IS ONLY 224. T HE ACTUAL HEAD COUNT IS MUCH LOWER AS THIS FIGURE OF 224 ALSO INCLUDES THE PERSONS WHO WORKED FOR EVEN A COUPLE OF DAYS DURING THE MONTH. THE ASSESSEE COMPANY HAS PRODUCED BEFORE TH E LD. CIT(A)-X ADDITIONAL EVIDENCE UNDER RULE 46A IN THE FORM OF ATTENDANCE REGISTER OF STAFF POSTED AT SITE OF M/S. BRIGHT POINT INDIA PVT. LTD. THIS ATTENDANCE REGISTER HAS BEEN VERIFIED BY ME ON TEST CHECK BASIS. THE AVERAGE NUMBER OF PERSONN EL DEPLOYED PER MONTH AT THIS SITE IS APPROX. 18. 6 3. VIDE QUESTIONNAIRE DT. 06-05-08 AND 03-09-05 THE ASSESSEE COMPANY WAS REQUIRED TO FURNISH SITE-WISE BREAK UP OF UTILIZATION/CONSUMPTION OF RAW MATERIALS AND CONSUM ABLES AND PRODUCE THE BILLS/VOUCHERS OF THE FOLLOWING EXPENSE S DEBITED TO THE P & L A/C: RAW MATERIAL ALSO PROVIDE LEDGER ACCOUNT RS.9,86,707 CONSUMABLES ALSO PROVIDE LEDGER ACCOUNT RS.1,99,641 TRAVELLING EXPENSES ALSO PROVIDE LEDGER ACCOUNT RS.1,12,688 UNIFORM EXPENSES ALSO PROVIDE LEDGER ACCOUNT RS.56,580 OFFICE REPAIR RS.10,183 PRINTING & STATIONERY RS.29,104 TELEPHONE EXPENSES ALSO PROVIDE LEDGER ACCOUNT RS.1,16,991 VIDE LETTER DT. 21-05-2008, THE AR MERELY PRODUCED ONLY SOME LOOSE BILLS. HOWEVER, EVEN THE LEDGER ACCOUNT OF T HE ABOVE EXPENSES WERE NOT PRODUCED. THE ASSESSEE COMPANY HAS PRODUCED BEFORE THE LD. CI T(A)-X ADDITIONAL/EVIDENCE UNDER RULE 46A IN THE FORM OF L EDGER ACCOUNT OF COMMUNICATION (TELEPHONE) EXPENSES AND TRAVELLING & CONVEYANCE EXPENSES ALONG WITH EMPLOYE EWISE BREAK UP. THESE HAVE BEEN VERIFIED BY ME ON TEST C HECK BASIS. THE ASSESSEE COMPANY HAS PRODUCED BEFORE THE LD. CI T(A)-X ADDITIONAL EVIDENCE UNDER RULE 46A IN THE FORM OF L EDGER ACCOUNT OF RAW MATERIALS, CONSUMABLES, UNIFORM EXPE NSES, OFFICE REPAIR, PRINTING & STATIONERY EXPENSES ALONG WITH RESPECTIVE BILLS/VOUCHERS. THESE HAVE BEEN CERTIFI ED BY ME ON TEST CHECK BASIS. 7 10. THE LEARNED CIT(A) THEN CONSIDERED THE ASSESSEE S REPLY AND THE AOS OBSERVATIONS IN THE REMAND REPORT AND DECIDED THIS ISSUE BY OBSERVING AND HOLDING AS UNDER:- 73. ESTIMATION OF NET PROFIT AT 25% OF GROSS RECEIPTS : VIDE REPLY DT. 06-01-2009 THE ASSESSEE COMPANY FURNISHED DETAILS OF SALARY MONTHWISE AND EMPLOYEEW ISE; TRAVELING AND CONVEYANCE; COMMUNICATION EXPENSES ET C WHICH WAS SENT TO THE AO FOR VERIFICATION AND COMMENTS AN D THE AO IN THE REMAND REPORT HAS STATED THAT THE EXPENSES WERE VERIFIED ON TEST CHECK BASIS. THE AO HAS NOT POINTED OUT ANY D ISCREPANCY BETWEEN THE CLAIM OF THE ASSESSEE AND THE DETAILS F URNISHED OF THESE EXPENSES. ACCORDINGLY, ESTIMATION OF NET PRO FIT AT 25% OF THE GROSS RECEIPTS THEREBY MAKING AN ADDITION OF RS .22,88,661/- WAS INCORRECT AND BASED ON MERE SURMISES AND CONJEC TURES AND IS DELETED. 11. WE HAVE HEARD BOTH THE PARTIES AND HAVE GONE TH ROUGH THE ORDERS OF THE AUTHORITIES BELOW. 12. IN THIS CASE, THE ASSESSEE CLAIMED BEFORE THE A O THAT AVERAGE NUMBER OF EMPLOYEES EMPLOYED PER MONTH WERE IN THE RANGE O F 200-250. IT WAS FOUND BY THE AO FROM ANNUAL EMPLOYEES PROVIDENT FU ND RETURN THAT TOTAL NUMBER OF EMPLOYEES SHOWN THEREIN WAS 224. THEREFO RE, THE ASSESSEES CLAIM THAT AVERAGE NUMBER OF EMPLOYEES WERE IN THE RANGE OF 200-250, CANNOT BE SAID TO BE FALSE. THE ASSESSEE COMPANY H AD PRODUCED BEFORE THE LEARNED CIT(A) THE ATTENDANCE REGISTER OF STAFF POS TED AT DIFFERENT SITES. THE ATTENDANCE REGISTER HAS BEEN VERIFIED BY THE AO ON TEST CHECK BASIS DURING 8 THE REMAND PROCEEDINGS. THE ASSESSEE HAS ALSO FILE D THE DETAILS OF VARIOUS EXPENSES DEBITED IN THE PROFIT & LOSS ACCOUNT, WHIC H WERE VERIFIED BY THE AO ON TEST CHECK BASIS DURING THE REMAND PROCEEDING S. IN THE REMAND PROCEEDINGS, THE AO HAS NOT POINTED OUT ANY MATERIA L OR EVIDENCE ON THE BASIS OF WHICH, ANY DISALLOWANCE OUT OF ANY EXPENSE S, COULD BE MADE. THE AO HAS NOT POINTED OUT ANY SERIOUS DISCREPANCY OR I RREGULARITY IN THE BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE SO AS TO REJE CT THE SAME UNDER SEC. 145(3) OF THE ACT. IN THIS VIEW OF THE MATTER, WE ARE INCLINED TO UPHOLD THE ORDER OF THE CIT(A) IN DELETING THE ADDITION OF RS. 22,88,661/- AND THIS GROUND RAISED BY THE REVENUE IS, THUS, REJECTED. 13. NOW WE SHALL COME TO THE CROSS OBJECTION FILED BY THE ASSESSEE. 14. THE CROSS OBJECTION FILED BY THE ASSESSEE IS TI ME BARRED BY 396 DAYS. THE ASSESSEE HAS FILED AN APPLICATION DATED 6 TH OCTOBER, 2010 FOR CONDONATION OF DELAY STATING AS UNDER:- WE HEREBY BEG TO SUBMIT IN THE CAPTIONED MATTER TH AT THE ASSESSEE COMPANY M/S. SAFE ENSURE ADMINISTRATIVE FA CILITIES PVT. LTD. HEREBY FILES A MEMORANDUM OF CROSS OBJECT ION (IN TRIPLICATE) IN MATTER ARISING FROM ORDER OF LD. COM MISSIONER OF INCOME TAX (APPEALS), DELHI. IN THIS REGARD, IT IS PRAYED THAT THE FILING OF MEMORANDUM OF CROSS OBJECTION IS LATE DUE TO REASONS BEYOND THE CONTROL OF THE ASSESSEE COMPANY AND IN SPITE OF BESET EFFORTS AND BONA FIDE BELIEF OF THE ASSESSEE COMPANY THAT THE MEMORANDUM OF CROSS OBJECTION DULY FILLED AND EXECUTED GIVEN TO THEN COUNSEL, WHO REPRESENTED ASSESSEE COMPANY BEFORE LD. CIT APPEAL, HAS FILED WITHIN DUE TIME. HOWEVER, THE FACT OF MEMORANDUM NOT FILED WAS INTIM ATED ONLY 9 DURING LAST FORTNIGHT BY PRESENT COUNSEL AND ON INQ UIRY FROM OLD COUNSEL IT WAS BROUGHT TO KNOWLEDGE THAT THE MEMORA NDUM WAS NOT FILED AS HE WAS MEDICALLY INDISPOSED. THEREAFT ER, THE ASSESSEE COMPANY IMMEDIATELY PREPARED THE FRESH MEMORANDUM OF CROSS OBJECTION FOR FILLING. IN VIEW OF THE ABOVE CIRCUMSTANCES, IT IS REQUESTED TO CONDONE THE DELAY IN FILING OF THE CROSS OBJECTION BEFORE T HE HN. INCOME TAX APPELLATE TRIBUNAL FOR WHICH HN. MEMBERS HAVE A MPLE AUTHORITY. 15. THE ASSESSEE HAS ALSO FILED AN AFFIDAVIT OF SHR I SEHJIV KAPOOR STATING AS UNDER:- THAT I, SEHJIV KAPOOR S/O M.L. KAPUR R/O K61B, LGF , KALKAJI, NEW DELHI SOLEMNLY AFFIRM AND UNDERTAKE AS UNDER 1. THAT DULY SIGNED FORM 36A FROM ABOVE MENTIONED ASSE SSEE WAS DELIVERED IN M Y OFFICE ON 04-08-2009. 2. DURING THAT PERIOD I WAS NOT ATTENDING OFFICE SINCE I WAS MEDICALLY INDISPOSED AND BEDRIDDEN DUE TO CHEST PAI N FOR 2 MONTHS. 3. THAT THE FORM 36A WAS NOT FILED IN ITAT BECAUSE I W AS MEDICALLY INDISPOSED & BED RIDDEN & NOT ATTENDING O FFICE. 16. THE ASSESSEE HAS ALSO FILED AN AFFIDAVIT OF ITS DIRECTOR STATING AS UNDER:- I AADESH SHARMA, DIRECTOR OF M/S. SAFE ENSURE ADMI NISTRATIVE FACILITIES PRIVATE LIMITED (PAN NO AAICS5847E) (HEREIN AFTER REFERRED TO AS ASSESSEE COMPANY) HEREBY SOLEMNLY AF FIRM AND DECLARE AS UNDER: 1. THAT THE APPEAL FILED BY THE ASSESSEE COMPANY BEFOR E THE LD. CIT(APPEALS) X WAS DISPOSED OF BY ORDER DATED 30-04- 2009 PASSED BY LD. CIT (APPEALS)-X . 10 2. THAT THE NOTICE FOR INTIMATION OF APPEAL BY INCOME TAX OFFICER, WARD 7(2) FROM HN. ITAT WAS RECEIVED ON 07-07- 2009. 3. THAT THE TIME FOR FILING OF THE CROSS OBJECTIONS BE FORE THE HN ITAT WAS TO EXPIRE ON 06-08-2009. 4. THAT THE ASSESSEE COMPANY HAD GIVEN THE DULY FILLED AND SIGNED MEMORANDUM OF CROSS OBJECTIONS TO THEN COUNS EL MR. S. KAPOOR WITHIN TIME. 5. THAT THE ASSESSEE COMPANY CAME TO KNOW OF FACT OF N ON- SUBMISSION OF MEMORANDUM OF CROSS OBJECTIONS FROM C OUNSEL M/S. DASS GUPTA & ASSOCIATES, CHARTERED ACCOUNTANTS ONLY ON 26.09.2010. 6. THAT ON ENQUIRY ABOUT FORM 36A FROM MR. S. KAPOOR CHAMBER IT WAS INFORMED SINCE HE WAS MEDIALLY INDIS POSED AS SUCH MEMORANDUM COULD NOT BE SUBMITTED. 7. THAT THEREAFTER ASSESSEE COMPANY PREPARED NEW MEMORANDUM OF CROSS OBJECTIONS AND FILED BELATEDLY ON 06- 10-2010. 17. WE HAVE CAREFULLY PERUSED THE AFFIDAVIT OF SHRI SEHJIV KAPOOR AS WELL AFFIDAVIT OF SHRI AADESH SHARMA, DIRECTOR OF ASSESS EE COMPANY. IN THE AFFIDAVIT OF SHRI SEHJIV KAPOOR, IT HAS BEEN CLAIME D BY HIM THAT HE WAS MEDICALLY INDISPOSED AND BED-RIDDEN FOR TWO MONTHS FROM THE MOTH OF AUGUST, 2009 AND DURING THAT PERIOD, HE WAS NOT ATT ENDING THE OFFICE AND, THEREFORE, FORM NO.36A DELIVERED IN HIS OFFICE, WAS NOT FILED BEFORE INCOME- TAX APPELLATE TRIBUNAL. IN THIS AFFIDAVIT, SHRI KA POOR HAS NOT GIVEN ANY EXPLANATION AS TO WHY DULY SIGNED FORM NO.36A COULD NOT BE FILED BY HIM 11 AFTER RECOVERING FROM ILLNESS OF TWO MONTHS. THE C ROSS OBJECTION HAS BEEN FILED ON 6.10.2010 I.E. AFTER ABOUT A YEAR WHEN SHR I SEHJIV KAPOOR RESUMED THE OFFICE AFTER REMAINING BED-RIDDEN FOR TWO MONTH S. IN THE AFFIDAVIT OF THE ASSESSEE, IT HAS NOT BEEN EXPLAINED AS TO WHY THE A SSESSEE COMPANY HAD REMAINED SILENT FOR ABOUT ONE YEAR AFTER SHRI SEHJI V KAPOOR RESUMED THE OFFICE AFTER RECOVERING FROM HIS ILLNESS. THIS EXP LANATION OF ONE YEAR HAS NEITHER BEEN GIVEN BY THE ASSESSEE NOR BY SHRI SEHJ IV KAPOOR. THE ASSESSEE HAS NOT BEEN ABLE TO EXPLAIN THE DELAY OCCURRED FRO M THE MONTH OF OCTOBER, 2009 TO OCTOBER, 2010. THE ASSESSEE HAS GIVEN ONLY A GENERAL EXPLANATION WITHOUT POINTING OUT ANY SERIOUS EFFORTS AND STEPS TAKEN BY THE ASSESSEE DURING THE PERIOD FROM OCTOBER, 2009 TO OCTOBER, 20 10 TO KNOW ABOUT THE FATE OF MEMORANDUM HANDED OVER TO SHRI KAPOOR IN TH E MONTH OF AUGUST, 2009. IN THESE PREMISES, WE HOLD THAT THE ASSESSEE HAS NOT BEEN ABLE TO EXPLAIN THE DELAY SATISFACTORILY IN FILING THIS CRO SS OBJECTION, AND WE, THEREFORE, DISMISS THE CROSS OBJECTION AS TIME-BARR ED. 18. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED, AND THE CROSS OBJECTION FILED BY THE ASSESSEE STANDS DISMIS SED AS TIME-BARRED. 19. THIS DECISION IS PRONOUNCED IN THE OPEN COURT O N 24 TH JUNE, 2011. SD/- SD/- (B.C. MEENA) (C.L. SETHI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 24 TH JUNE, 2011. 12 ITA NO.2139/DEL/2009 & C.O. NO.335/DEL/2010 COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR BY ORDER *MG DEPUTY REGISTRAR, ITAT.