M/s. Osaka Pharmaceuticals Pvt. Ltd., Baroda V. The Income Tax Officer, Ward-4(1), Baroda

ITA 2687/AHD/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0228 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 01-08-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 18-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Rectification of order
• Section: 143(3); 154

Judgement Text

I.T.A. NO . 2687 /AHD/201 3 A SSESSMENT Y EAR: 200 6 - 07 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH, SMC , AHMEDABAD [CORAM: PRAMOD KUMAR AM] I.T.A. NO. 2687 /A HD/ 20 1 3 ASSESSMENT Y EAR : 200 6 - 07 OSAKA PHARMACEUTICALS PVT. LTD. ..... ...... . ... . APPELLANT OLD NATIONAL HIGHWAY NO.8, VILL. SANKARDA, VADODARA 391 350. [ PAN: AAACO 6725 F ] VS. INCOME TAX OFFICER, WARD - 4(1), BARODA. ............... . RESPONDENT APPEARANCES BY: NONE FOR THE APPELLANT SATISH SOLANKI FOR THE RESPONDENT D ATE OF CONCLUDING TH E HEARING : 01 .0 8 .2016 DATE OF PRONOUNCING THE ORDER : 25 .10.2016 O R D E R 1. BY WAY OF THIS APPEAL, THE ASSESSEE APPELLANT HAS CHALLENGED CORRECTNESS OF THE ORDER DATED 05.08.2013 PASSED BY THE LEARNED CIT ( A ) IN THE MATTER OF ASSESSME NT UNDER SECTION 154 OF THE INCOME TAX A CT , 1961, FOR THE ASSESSMENT YEAR 200 6 - 07 . 2. GRIEVANCES RAISED BY THE APPELLANT ARE AS FOLLOWS : - ALL THE GROUNDS OF APPEAL IN THIS APPEAL ARE MUTUALLY EXCLUSIVE AND WITHOUT PREJUDICE TO EACH OTHER. 1. THE LD . CO MMISSIONER OF I NCOME T AX (APPEALS) III, BARODA HAS ERRED IN LAW AND IN FACTS IN IGNORING THE EXPLANATION GIVEN F OR DELAY IN FILING OF TH E APPEAL A ND ALSO REQUEST MADE FOR ITS CONDONATION THOUGH THE LD . A . R . WHICH IS CORROBORATED BY THE FACT OF WITHDRAWAL OF APPEAL AGAINST THE ORDER U/S. 154 DATED 06.11.2012 RELATING TO SIMILAR ISSUE VIDE LETTER DATED 29.07.2013 . THE LD . CIT(A) OUGHT TO HAVE ADMITTED THE APPEAL CONSIDERING THE CIRCUMSTANCES AND MATERIAL AVAILABLE ON RECORD A ND CONDONED THE DELAY. THE APP ELLANT I.T.A. NO . 2687 /AHD/201 3 A SSESSMENT Y EAR: 200 6 - 07 PAGE 2 OF 3 PLEADS APPROPRIATE DIRECTION TO THE LD . CIT ( A ) IN THE ADMISSION OF ITS APPEAL FILED ON 18.12.2012. 3. TO ADJUDICATE ON THIS APPEAL, ONLY A FEW MATERIAL FACTS NEED TO BE TAKEN NOTE OF. THE APPEAL WAS DISMISSED BY THE LEARNED CIT(A) AS TIME BARRED . THE ASSESSEE HAS NOW EXPLAINED THE DELAY A S FOLLOWS : - THE APPELLANT COMPANY IS ENGAGED IN THE BUSINESS OF MANUFACTURE OF PHARMACEUTICAL PRODUCTS. THE ASSESSMENT FOR THE YEAR UNDER CONSIDERATION WAS MADE U/S. 143(3) ON 24.12.2008. THEREAFTER, THE LD. A.O. RECTIFIED THE ASSESSMENT ORDER DATED 24.12.2008 ON 26.03.2012 U/S. 154 WHEREIN HE DISALLOWED EXPENSES TO THE TUNE OF RS. 25,90,3257 - INVOKING THE PROVISIONS OF SEC. 40(A)(IA). THE APPELLANT FILED A REQUEST SEEKING RECTIFICATION OF THE ORDER DATED 26. 03.2012 MADE U/S. 154 ON 09.10.2012 WHEREIN REFERRING TO THE AMENDMENT TO THE SEC. 40(A)(IA) BY THE FINANCE ACT 2010, IT WAS CLAIMED THAT THE RECTIFICATION ORDER DATED 26.03.2012 IS ERRONEOUS AS NO DISALLOWANCE IS WARRANTED WHERE THE PAYMENT OF TAX DEDUCTE D IS MADE PRIOR TO THE DUE DATE OF FILING THE RETURN. HOWEVER, THE LD. A.O. REJECTED THE APPLICATION DATED 09.10.2012 VIDE HIS ORDER DATED 06.11.2012 WHICH WAS APPEALED BEFORE THE LD. CIT(A) - II1, BARODA ON 19.12.2012. THE APPELLANT ALSO FILED AN APPEAL A GAINST THE ORDER U/S. 154 DATED 26.03.2012 ON 18.12.2012. THE APPEALS AGAINST THE ORDERS DATED 26.03.2012 AND 06.11.2012 WERE FIXED FOR HEARING IN THE MONTH OF JULY, 2013. IN THE COURSE OF THE HEARING, THE APPELLANT THROUGH THE LD. A.R. ORALLY SUBMITTED T HE REASONS FOR DELAY IN THE FILING OF APPEAL AGAINST THE ORDER U/S. 154 DATED 26.03.2012 BY STATING THAT THE DELAY HAD OCCURRED BONAFIDELY BELIEVING THAT THE APPEAL AGAINST THE ORDER U/S. 154 DATED 06.11.2012 WAS IN ORDER. HOWEVER, REALIZING THAT THE APPE AL AGAINST THE ORDER U/S. 154 DATED 06.11.2012 MAY NOT BE LEGALLY TENABLE AND ON THE BASIS OF EXPLANATION GIVEN TO THE LD. CIT(A) IN THE COURSE OF APPEAL PROCEEDINGS, THE APPELLANT WITHDREW ITS APPEAL FILED ON 19.12.2012 AGAINST THE ORDER U/S. 154 DATED 06 .11.2012 ON 29.07.2013. 4. HAVING PERUSED THE ABOVE REASONS AND HAVING HEARD THE LEARNED DEPARTMENTAL REPREHENSIVE ON THE SAME, I AM OF T HE CONSIDERED VIEW THAT THE DELAY IN FILING OF APPEAL BEFORE THE LEARNED CIT ( A ) WAS BONAFIDE AND DUE TO R EA SONS WHICH DESERVE BEING I.T.A. NO . 2687 /AHD/201 3 A SSESSMENT Y EAR: 200 6 - 07 PAGE 3 OF 3 ACCEPTED. I, THEREFORE, HOLD TH A T THE LEARNED CIT (A) OUGHT TO HAVE CONDONED THE DEL A Y AND IN ANY C A SE OUGHT TO HAVE GIVEN HIM A SPECIFIC OPPORTUNITY OF HE A RING ON THIS ASPECT BEFORE REJECTING THE A PPEAL AS TIME BARRED. IN THIS VIEW OF THE MATTER, AND BEING SATISFIED OF THE GENUINENESS OF THE RE A SONS FOR DEL A Y IN FILING OF APPEAL, I DIRECT THE LEARNED CIT(A) TO DISPOSE OF THE MATTER ON MERIT. IN EFF E CT, DELAY IS CONDONED A ND MATTER IS RESTORED TO THE FILE OF LEARNED CIT(A) FOR ADJUDICATION ON MERITS. 5. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. P P R ONOUNCED IN THE OPEN COURT TODAY ON 25 H T DAY OF OCTOBER , 2016. SD/ - PRAMOD KUMAR (ACCOUN TANT MEMBER) DATED: THE 25 TH DAY OF OCTOBER , 2016. PBN/* COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES , AHMEDABAD