DCIT, New Delhi V. M/s. Bacardi Martini India Ltd., New Delhi

ITA 2933/DEL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 52802 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-10-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 21-09-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 11-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS GEETMALA MOHANTY
• Assessee Lawyers: NITIN VAID; C S AGGARWAL SR R P MALL
• Keywords: Condonation of delay; Revenue expenditure
• Section: 143(3); 37(1); 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A DELHI BEFORE SHRI I.P. BANSAL AND SHRI K.G. BANSAL ITA NO. 2933(DEL)/2010 ASSESSMENT YEAR: 2003-04 DEPUTY COMMISSIONER OF BACARDI M ARTINI INDIA LTD., INCOME-TAX, CIRCLE 2(1), VS. 227, OK HLA INDUSTRIAL AREA, NEW DELHI . PHASE-III, NEW DELHI. PAN-AAACB3944R (APPELLANT) (RESPON DENT) APPELLANT BY : MRS. GEETMALA MOHANTY, CIT , DR RESPONDENT BY: S/S HRI C.S. AGGARWAL, SR. ADVOCATE R.P. MALL & NITIN VAID, C.A. DATE OF HEARING : 21.09.2011 DATE OF PRONOUNCEMENT: 07.10.2011. ORDER PER K.G. BANSAL : AM THE ONLY GROUND TAKEN BY THE REVENUE IN THE APPEA L IS THAT THE LD. CIT(APPEALS) ERRED ON FACTS AND IN LAW IN DIRECT ING THE AO TO TREAT THE EXPENDITURE OF RS. 8,18,06,964/- AS DEFERRED R EVENUE EXPENDITURE AND ALLOW 1/5 TH THEREOF IN THIS YEAR AND BALANCE IN FOUR EQUA L AMOUNTS IN THE SUCCEEDING FOUR YEARS, AS AGAINST THE FINDING OF TH E AO THAT THE EXPENDITURE IS NOT DEDUCTIBLE IN COMPUTING THE LOSS. IT IS MENTIONED THAT THE ADVERTISEMENT ON TV CHANNELS FOR PROMOTING BAC ARDI BRAND WAS ITA NO. 2933(DEL)/2010 2 ACCESSIBLE OUTSIDE INDIA WHERE ASSESSEES PRODU CTS ARE NOT SOLD. IT IS FURTHER MENTIONED THAT THE ULTIMATE BENEFICIARY OF THE EXPENDITURE IS BACARDI INTERNATIONAL LTD., BERMUDA (BIL FOR S HORT) AND NOT THE ASSESSEE. IT IS ALSO MENTIONED THAT THE EXPEN SES ARE NOT INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS OF THE ASSESSEE. THE APPEAL IS NOT FILED WITHIN THE PRESCRIBED TIME. HOWEVER, WE SHALL REVERT TO THIS ISSUE LATER ON. AT PRESENT, IT WILL BE SUFFICIENT TO S AY THAT APPLICATION FOR CONDONATION OF DELAY AND AN AFFIDAVIT FROM THE C OMMISSIONER OF INCOME- TAX HAVE BEEN FILED ON 21.09.2011, ON THE DATE OF HEARING. THE ASSESSEE HAS OPPOSED THE CONDONATION OF DELAY. 2. THE BRIEF FACTS ARE THAT THE ASSESSEE FILED ORIGINAL RETURN DECLARING LOSS OF RS. 5,63,60,530/- ON 25.11.2003. THIS RET URN WAS PROCESSED U/S 143(1) OF THE INCOME-TAX ACT, 1961 (THE ACT FOR SHORT) ON 12.12.2003. THE RETURN WAS REVISED ON 31.03.2004 DECLARING LOSS OF RS. 5,88,50,530/-. THE REVISION WAS IN RESPECT OF TREATMENT TO BE METE D OUT TO THE COMPENSATION OF RS. 2.00 CRORE PAID TO GEMINI DISTI LLERIES LTD. FOR RESTRAINING THEM FROM ENTERING INTO ANY AGREEME NT WITH COMPETITORS FOR SUPPLY OF RAW-MATERIAL OR LEASING ITS FACILITIE S. THE PROCEEDINGS WERE ITA NO. 2933(DEL)/2010 3 INITIATED BY ISSUING NOTICE U/S 143(2) ON 13.10. 2004, WHICH WAS SERVED ON THE ASSESSEE ON 14.10.2004. 2.1 THE ASSESSEE IS ENGAGED IN THE BUSINESS OF MA NUFACTURE, DISTRIBUTION AND SALE OF ALCOHOLIC BEVERAGES. IT WAS FOUN D BY THE AO THAT EXPENDITURE OF RS. 16,59,90,293/- HAD BEEN INCURRED ON ADVERTISEMENT AND SALE PROMOTION ETC. OUT OF THIS AMOUNT, A SUM O F RS. 8,73,42,592/- WAS CHARGED TO PROFIT AND LOSS ACCOUNT AS REVENUE E XPENDITURE. THE BALANCE AMOUNT OF RS. 8,18,06,964/- WAS TREATED AS DEF ERRED REVENUE EXPENDITURE IN THE BOOKS. THIS EXPENDITURE WAS AMORTIZED OV ER A PERIOD OF FIVE YEARS. THE CASE OF THE AO IS THAT THE EXPENDITU RE OF ABOUT RS. 8.18 CRORE HAS BEEN INCURRED FOR PROMOTING BACARDI BRAND. THE ASSESSEE DOES NOT OWN THE BRAND WHICH IS OWNED BY BIL, WHICH IS THE HOLDING COMPANY OF THE ASSESSEE-COMPANY. THEREFORE, THIS EXPENDITU RE HAS NOT BEEN INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF THE BUS INESS OF THE ASSESSEE. ON THE OTHER HAND, THE CASE OF THE ASSESSEE HAS BEE N THAT THE PROMOTION OF BACARDI BRAND LEADS TO INCREASE IN THE BUSINES S OF THE ASSESSEE. THEREFORE, THE EXPENDITURE HAS BEEN INCURRED IN TH E COURSE OF THE BUSINESS OF THE ASSESSEE. IT IS ANOTHER MATTER THAT THE EXP ENDITURE MAY ALSO LEAD TO BENEFITS TO THE BIL. HOWEVER, SUCH INCIDENTAL BENEFITS IS NOT RELEVANT FOR ITA NO. 2933(DEL)/2010 4 DECIDING THE DEDUCTIBILITY OF THE EXPENDITURE U /S 37(1) OF THE ACT. THE LD. CIT(A) CONSIDERED VARIOUS DECIDED CASES ON THE ISSUE AND FINALLY CAME TO THE CONCLUSION THAT THE EXPENDITURE HAS BEEN INCUR RED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS. FOR THE SAKE OF READY REFERENCE, THE GIST OF HIS FINDING CONTAINED IN PARAGRAPH NO. 3.8 OF THE IMPUGNED ORDER IS REPRODUCED BELOW:- 3.8 ON PLAIN READING OF SECTION, IT IS SEE N THAT FOR THE PURPOSE OF DEDUCTION TO BE ALLOWED WHAT IS TO BE SEEN THAT THE EXPENDITURE SHOULD NOT BE OF THE NATURE DESCRIBED IN SECTIONS 30 TO 36, THE SAME SHOULD NOT BE CAPITAL EXPENDIT URE OR PERSONAL EXPENSES AND THAT THE SAME SHOULD BE EXP ENDED OR LAID DOWN WHOLLY AND EXCLUSIVELY FOR THE PURPOS E OF THE BUSINESS. AS FAR AS FIRST TWO LIMBS ARE CONCE RNED THERE IS NO DISPUTE THAT EXPENSES IN THE INSTANT CASE WAS N OT OF THE NATURE COVERED U/S 30 TO 36, NOR THEY ARE CAPITAL OR P ERSONAL EXPENSES AND, THEREFORE, THE ONLY QUESTION REMAINS IS AS TO WHETHER SUCH EXPENSES ARE INCURRED FOR THE PURPO SE OF THE BUSINESS. AS HAS BEEN LOOKED INTO EARLIER THAT A PPELLANT COMPANY HAS BEEN THE SOLE MANUFACTURER, DISTRIBUTO R AND SELLER OF BACARDI PRODUCTS IN INDIA, AND THEREFORE AN Y PROMOTIONAL ACTIVITIES CARRIED OUT IN INDIA WOULD RESULT IN D IRECT BENEFIT TO THE APPELLANT COMPANY AND THEREFORE EXPENSES I N NATURE OF A&P INCURRED BY THE APPELLANT COMPANY WOULD BY ALL MEANS BENEFIT THE SAME AND THEREFORE IT WOULD BE INAPT TO CONSIDER THAT BENEFIT OF SUCH PROMOTION WOULD ACCRUE ONLY TO THE BIL AND NOT TO THE APPELLANT COMPANY. AND MERELY BECAUSE BENEFIT ACCRUES TO BIL DOES NOT RENDER SUCH EXPENSES AS NOT FOR THE PURPOSE OF BUSINESS. THUS, LOOKING TO THE FACTS OF THE CASE AS WELL AS RELYING ON VARIOUS JUDGMENTS REFERRED T O, I AM IN AGREEMENT WITH THE APPELLANT COMPANY THAT NO DI SALLOWANCE SHOULD HAVE BEEN MADE. IT IS PERTINENT TO NOTE THAT AS PER THE PRACTICE FOLLOWED BY THE APPELLANT COMPANY AND A S WAS ITA NO. 2933(DEL)/2010 5 DECIDED BY THE DEPARTMENT IN EARLIER YEARS ONLY 1/ 5 TH OF SUCH EXPENSES SHOULD BE ALLOWED AS AGAINST ENTIRE AMOUN T OF RS. 8,18,06,964/- AND BALANCE AMOUNT SHOULD BE ALLOWED IN FOUR YEARS IN EQUAL PROPORTION. APPELLANT HAS STATED IN ITS SUBMISSION THAT THEY HAVE CLAIMED ONLY 1/5 TH OF SUCH EXPENSES IN ITS RETURN OF INCOME AND HAS NOT CLAI MED DEDUCTION OF 4/5 TH OF SUCH EXPENSES, WHICH ARE TREATED AS DEFERRED REVENUE EXPENSES AND, THEREFORE, THE AO MAY ALSO VERIFY THIS FACT AND MAY RECOMPUTE THE INCOME ACCORDINGLY. 2.2 ON MERITS, THE LD. CIT, DR HAS RELIED ON THE ORDER OF THE AO. IT IS ARGUED BY HER THAT ADVERTISEMENT ON TV CHANNE LS ARE ACCESSIBLE TO PERSONS OUT SIDE INDIA WHERE PRODUCTS OF THE ASS ESSEE ARE NOT SOLD. THE EXPENDITURE IS IN RESPECT OF BACARDI BRAND, WHI CH IS NOT OWNED BY THE ASSESSEE BUT BY THE BIL. THEREFORE, THE EXP ENDITURE HAS NOT BEEN INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS OF THE ASSESSEE. 2.3 ON THE OTHER HAND, THE SUBMISSIONS OF THE LD. C OUNSEL FOR THE ASSESSEE, IN BRIEF, ARE THAT THE PROMOTION OF BACARDI BRAND, EVEN THOUGH NOT IN RESPECT OF ALCOHOLIC BEVERAGES, PROMOTE THE BUS INESS OF THE ASSESSEE ON ACCOUNT OF THE FACT THAT PEOPLE BECOME MORE AND M ORE AWARE OF VARIOUS PRODUCTS SOLD IN INDIA UNDER BACARDI NAME. TH E ASSESSEE HAS BEEN SELLING ALCOHOLIC BEVERAGES UNDER BACARDI BRAND NAME IN INDIA. THE FACT THAT THE ADVERTISEMENT IS ACCESSIBLE TO PEOPLE OUTSIDE INDIA IS NOT ITA NO. 2933(DEL)/2010 6 MATERIAL FOR DECIDING THE ISSUE. ONCE AN EXP ENDITURE HAS BEEN DONE WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSIN ESS, THE INCIDENTAL BENEFIT TO ANY OTHER PERSON BECOMES IMMATERIAL FOR CLAIMING OR ALLOWING THE DEDUCTION OF THE EXPENDITURE. IT IS FURTHER SUBMITTED THAT THE ASSESSEE COULD CLAIM THE WHOLE OF THE EXPENDITURE AS REV ENUE EXPENDITURE IN THIS YEAR BUT HAS TREATED THE SAME AS DEFERRED REVE NUE EXPENDITURE IN THE BOOKS. THEREFORE, THE CLAIM IN THE RETURN IS ALSO MADE ACCORDINGLY. THE ASSESSEE HAS BEEN ALLOWED THE BALANCE AMOUNT IN T HE SUBSEQUENT FOUR YEARS, I.E., ASSESSMENT YEAR 2004-05 TO ASSESSM ENT YEAR 2007-08. COPIES OF STATEMENT OF INCOME AND ORDER OF ASSESSMENT HAVE BEEN PLACED IN THE PAPER BOOK ON PAGE NOS. 1 TO 24. 2.4 WE HAVE CONSIDERED THE FACTS OF THE CASE AN D SUBMISSIONS MADE BEFORE US. THE FACTS ARE THAT THE EXPENDITURE HAS BEEN INCURRED FOR PROMOTING BACARDI BRAND WHICH IS NOT OWNED BY THE ASSESSEE BUT BY THE BIL. THE ADVERTISEMENT ON TV CHANNELS IS ALSO ACCESSIBLE TO PERSONS OUTSIDE INDIA WHO ARE NOT THE CUSTOMERS O F THE ASSESSEE. HOWEVER, IT IS ALSO A FACT THAT THE PROMOTION OF BACA RDI BRAND MAKES IT KNOWN IN INDIA AND TO THE CUSTOMERS OF THE ASSESSEE IN I NDIA. THIS LEADS TO INCREASED SALE OF THE ALCOHOLIC BEVERAGES MANUFAC TURED AND SOLD BY THE ITA NO. 2933(DEL)/2010 7 ASSESSEE. THEREFORE, THE EXPENDITURE HAS BEEN INC URRED FOR THE PURPOSE OF THE BUSINESS OF THE ASSESSEE. ANY INCIDENTAL BE NEFIT DOES NOT DISPLACE THE AFORESAID CONCLUSION, AS MADE OUT BY THE LD. CIT (APPEALS) IN THE IMPUGNED ORDER. THE ASSESSEE COULD HAVE CLAIME D THE WHOLE OF THE EXPENDITURE AS REVENUE EXPENDITURE IN THIS YEAR A S ADVERTISEMENT EXPENSES ARE IN THE NATURE OF REVENUE EXPENDITUR E. HOWEVER, IT HAS CLAIMED ONLY 1/5 TH OF THE EXPENDITURE IN THIS YEAR AND THE BALAN CE EXPENDITURE HAS BEEN CLAIMED AND ALLOWED IN AS SESSMENT YEARS 2004-05 TO 2007-08. IN THE INTEREST OF CONSISTENCY, I T WILL BE APPROPRIATE TO HOLD THAT THE ASSESSEE IS ENTITLED TO THE DEDUCTION O F 1/5 TH OF THE EXPENDITURE IN THIS YEAR. ACCORDINGLY, THE GROUND TAKEN BY THE R EVENUE IS DISMISSED. 3. COMING TO THE CONDONATION OF DELAY, THE LD. CI T HAS MENTIONED IN THE APPLICATION FILED ON 21.09.2011 THAT ORIGINA LLY THE REVENUE HAD FILED APPEAL ON 21.03.2007, WHICH WAS REGISTERED AS I TA NO. 1393(DEL)/2007. THE GROUND TAKEN IN THE APPEAL MENTIONED THE AMOU NT AT RS. 8,73,42,592/-. THIS APPEAL WAS DISPOSED OFF BY WAY OF DISMISSAL ON 03.07.2008 ON THE GROUND THAT NEITHER THE AO HAS MADE ADDITION OF T HE AFORESAID AMOUNT NOR THE GROUND ARISES OUT OF THE ORDER OF THE LD. CI T(APPEALS). AN APPLICATION U/S 254(2) WAS FILED ON 24.12.2008 MENTIONING THA T THE AMOUNT SHOULD BE ITA NO. 2933(DEL)/2010 8 TAKEN AT RS. 8,18,06,964/- AGAINST THE AMOUNT OF RS. 8,73,42,592/-, MENTIONED IN THE APPEAL. THE MISCELLANEOUS APPLICA TION WAS REJECTED ON 27.11.2009 BY GRANTING LIBERTY TO THE REVENUE T O FILE A FRESH APPEAL BY TAKING APPROPRIATE GROUND AND PRAYING FOR CONDO NATION OF DELAY. IN PURSUANCE OF THIS ORDER AND THE LIBERTY GRANTE D TO THE REVENUE, THE INSTANT APPEAL HAS BEEN FILED. FOR THIS APPEAL, THE DA TE OF RECEIPT OF THE IMPUGNED ORDER HAS BEEN WRONGLY MENTIONED AS 15.0 2.2010 INSTEAD OF 23.01.2007. ACCORDINGLY, A FRESH FORM NO. 36 IS ALSO FILED. IT WILL BE SEEN THAT THE REVENUE HAS BEEN TAKING APPROPRIATE STEPS TO GET THE REQUISITE RELIEF BY PURSUING DILIGENTLY VARIOUS REMEDIES AVAILABLE TO IT. THE ISSUE INVOLVES HUGE AMOUNT OF REVENUE. THEREFORE, IT IS PRAYED THAT THE DELAY MAY BE CONDONED. THE LD. CIT, DR HAS REPEATED VARIOUS AVERMENTS MADE IN THE APPLICATION WHILE ARGUING THE CASE BEFORE US. 3.1 IN REPLY, THE LD. COUNSEL SUBMITTED THAT AN OVERALL EXPENDITURE OF ABOUT RS. 16.91 CRORE WAS INCURRED IN THIS YEAR ON ADVERTISEMENT, SALE PROMOTION ETC. OUT OF THIS, THE AO ALLOWED A SU M OF ABOUT RS. 8.73 CRORE. THE ASSESSEE HAD CLAIMED 1/5 TH OF THE BALANCE AMOUNT OF ABOUT RS. 8.18 CRORE BY TREATING IT TO BE DEFERRED REVENUE EXPENDITURE. THIS WAS THE SUBJECT MATTER OF APPEAL BEFORE THE LD. CIT(APPEALS ). HOWEVER, THE REVENUE ITA NO. 2933(DEL)/2010 9 FILED APPEAL IN RESPECT OF THE AMOUNT OF ABOUT RS .8.73 CRORE ON WHICH THERE WAS NO DISPUTE AND CONSEQUENTLY WHICH WAS NOT DEALT WITH BY THE LD. CIT(APPEALS). THEREFORE, THE APPEAL OF THE RE VENUE BEARING ITA NO. 1393(DEL)/2007 WAS DISMISSED. THE REVENUE MOVED A MISCELLANEOUS APPLICATION U/S 254(2), WHICH WAS ALSO DISMISSED ON 27.11.2009. IN PARAGRAPH NO. 12, IT HAS INTER-ALIA BEEN MENTION ED THAT WE FURTHER REITERATE THAT THE REVENUE IF SO ADVISED, MAY FIL E A FRESH APPEAL WITH THE APPROPRIATE GROUND OF APPEAL AND WITH THE APPLICA TION FOR CONDONATION OF DELAY, WHICH SHALL BE CONSIDERED AS PER LAW. THIS DOES NOT AMOUNT ANY PERMISSION BY THE TRIBUNAL THAT IF COMPLETE APPEAL ALONG WITH THE APPLICATION FOR CONDONATION OF DELAY IS FILED, IT SHALL BE ADMITTED. THE APPEAL, IF FILED, HAD TO BE DEALT WITH AS PER LAW . THE REVENUE HAS NOW FILED THE SECOND APPEAL BEARING ITA NO. 2933(DEL)/2010. THIS APPEAL CONSTITUTES A SEPARATE AND INDEPENDENT APPEAL BEC AUSE THE ISSUE AGITATED IS IN RESPECT OF THE AMOUNT OF ABOUT RS. 8.18 CRORE. THIS APPEAL IS ALSO LATE EVEN IF A REASONABLE TIME IS ALLOWED TO THE REVE NUE TO FILE FRESH APPEAL AFTER THE DISMISSAL OF MISCELLANEOUS APPLICATION. THUS, THE REVENUE HAS NOT ACTED WITH DUE DILIGENCE EVEN IN FILING THE INS TANT APPEAL. IN SUCH A SITUATION, THE APPEAL IS REQUIRED TO BE DISMISSED I N LIMINE, IN VIEW OF THE DECISION OF B BENCH OF DELHI TRIBUNAL IN THE CAS E OF ADDITIONAL CIT VS. ITA NO. 2933(DEL)/2010 10 M/S SUMITOMO CORPORATION FOR ASSESSMENT YEAR 19 97-98 IN ITA NO. 930(DEL)/2008 DATED 30.06.2010, A COPY OF WHICH HAS BEEN PLACED ON RECORD. PARAGRAPH NO. 11 OF THE DECISION IS REPR ODUCED BELOW FOR READY REFERENCE:- 11. KEEPING IN MIND THE ABOVE AUTHORITATIVE PRONOU NCEMENT OF THE HON'BLE SUPREME COURT, LET US CONSIDER THE F ACTS OF THE PRESENT CASE. ACCORDING TO THE LEARNED DR, THE APPE AL OF THE REVENUE IS NOT TIME BARRED. IT WAS FILED WITHIN LIM ITATION DUE TO SOME OMISSION THE GROUNDS OF APPEAL AND AUTHORIZATI ON IN SUPPORT OF SUCH GROUNDS GRANTED BY THE LEARNED CIT( APPEALS) WERE ANNEXED RELATING TO SOME OTHER APPEALS. THAT A PPEAL IS ALSO OF THE REVENUE IN THE CASE OF PRESENT ASSESSEE AND FOR THIS VERY ASSESSMENT YEAR. THE APPEAL HAS ARISEN AGAINST THE ORDER OF LEARNED CIT(APPEALS) DATED 11.12.2000 PASSED ON AN ASSESSMENT ORDER MADE UNDER SEC. 143(3) OF THE ACT, WHEREAS THIS APPEAL HAS ARISEN FROM A PROCEEDING UNDER SEC. 154 STARTED AT THE LEVEL OF ASSESSING OFFICER. THE REVENUE ONLY SOUGHT TO REPLACE THE GROUNDS OF APPEAL AND, THEREFORE, QUEST ION OF LIMITATION SHOULD NOT BE RAISED WITH THAT FEROCITY WHICH IS USUALLY RAISED WHEN ANY APPELLANT FILED AN APPEAL A FTER EXPIRY OF LIMITATION. HOWEVER, IT IS DIFFICULT FOR US TO CONC UR WITH THE SUBMISSIONS OF LEARNED DR. SECTION 253 SUB-SECTION (2) CASTS A DUTY UPON THE LEARNED COMMISSIONER(ADMN.) TO PERU SE THE ORDER OF LEARNED FIRST APPELLATE AUTHORITY AND THEN DIRECT THE ASSESSING OFFICER TO FILE THE APPEAL. ASSESSING OFF ICER INDEPENDENTLY CANNOT FILE THE APPEAL MEANING THEREB Y THE APPEAL AGAINST THE ORDER OF THE LEARNED CIT(APPEALS ) CAN ONLY BE FILED IF AN APPROVAL IS BEING GRANTED BY THE LEA RNED COMMISSIONER OF IT ON ADMINISTRATIVE SIDE. WE COULD HAVE CONDONED THE DELAY AND PERMIT THE REVENUE TO RECTIF Y ITS GROUNDS OF APPEAL IF THE FACTS WERE AS SIMPLE AS DE MONSTRATED BY THE LEARNED DR BEFORE US. IT WILL NOT BE MUCH DI FFICULT FOR US TO CONDONE THE DELAY IF THERE WAS AN OMISSION OR A CLERICAL MISTAKE AT THE END OF CLERICAL STAFF WHO HANDOVER T HE APPEAL PAPERS TO THE REGISTRY OF THE ITAT. THE ORDER OF TH E LEARNED CIT(APPEALS) WHICH IS CHALLENGED UNDER THIS APPEAL WAS PASSED ITA NO. 2933(DEL)/2010 11 ON 20 TH OCTOBER, 2000. LEARNED CIT(ADMN.) GRANTED APPROVAL FOR FILING THE APPEAL ON 15.3.2001. THE APPEAL WAS FILED ON 16.3.2001. LEARNED CIT(APPEALS) HAS DECIDED THE OTH ER APPEAL OF APPEAL WHICH HAS ARISEN AGAINST ASSESSMENT ORDER PASSED UNDER SEC. 143(3) OF THE ACT ON 11.12.2000. APPROVA L TO CHALLENGE THIS ORDER WAS GRANTED ON 12.4.2001. THES E ARE AVAILABLE ON THE PAPER BOOK AT PAGE NOS. 30 TO 33. WHEN THIS APPROVAL WAS GRANTED BY THE TIME THE PRESENT APPEAL HAD ALREADY BEEN FILED. HOW THE CLERICAL STAFF CAN COMMIT A MIS TAKE OF ANNEXING THE APPROVAL AND GROUNDS OF APPEAL WHICH W ERE APPROVED BY THE LEARNED CIT(APPEALS) ON 12.4.2001 I N AN APPEAL WHICH WAS ALREADY RECEIVED BY THE ITAT ON 15 .3.2001. IT INDICATES THAT THE STORY PUT FORTH BY THE REVENU E AND CANVASSED BY THE LEARNED DR BEFORE US HAS NO LEGS T O STAND. APART FROM THIS WHEN THIS DEFECT WAS POINTED OUT TO THE REVENUE AND IT FILED THE FRESH GROUNDS OF APPEAL ON 15 TH OCTOBER, 2007. IT FILED A FRESH AUTHORIZATION GRANTED ON 9.10.2007. H AD THERE WAS ALREADY AN AUTHORIZATION HOW THOSE VERY GROUNDS WER E REQUIRED TO BE AUTHORIZED AFRESH. THERE WERE NO GROUNDS OF A PPEAL EMANATING FROM THE IMPUGNED ORDER. THUS, IN THE EYE S OF LAW, IT WAS NOT VALID APPEAL. IT IS NOT THE CASE WHERE APPE LLANT SOUGHT TO RAISE ADDITIONAL GROUND OF APPEAL OR SOME OTHER CONNECTED ISSUES WHICH WAS ALREADY TAKEN UP IN THE ORIGINAL M EMO OF APPEAL. WE HAVE EXTRACTED THE APPLICATION FOR CONDO NATION OF DELAY IN THE UPPER PART OF THE ORDER, NOT A SINGLE REASON IS DISCERNIBLE FROM THAT APPLICATION. THE REVENUE HAS NARRATED THE FACTS BUT NOWHERE SHOWN HOW IT FAILED TO FILE THE G ROUNDS OF APPEAL EMANATING FROM THE IMPUGNED ORDER OF THE LEA RNED CIT(APPEALS). WE AGREE TO THE PROPOSITION THAT IN E VERY CASE OF DELAY, THERE CAN BE SOME LAPSE ON THE PART OF LITIG ANT CONCERNED AND THAT ALONE IS NOT ENOUGH TO TURN DOWN THE PLEA AND TO SHUT THE DOORS AGAINST HIM. HON'BLE SUPREME COURT IN THE CASE OF N. BALAKRISHANAN (SUPRA) HAS OBSERVED THAT LENGTH OF D ELAY IS IMMATERIAL, IT IS THE ACCEPTABILITY OF THE EXPLANAT ION, I.E. THE ONLY CRITERIA FOR CONDONING THE DELAY. IN THE PRESE NT CASE, REVENUE FAILED TO SHOW ANY REASON WHICH CAN PURSUED US TO CONDONE THE LONG DELAY IN FILING THE VALID APPEAL. CONSIDERING THE CASUAL APPROACH OF THE REVENUE IN CONDUCTING TH E PROCEEDINGS, WE REJECT THIS APPEAL ON PRELIMINARY G ROUND THAT IT ITA NO. 2933(DEL)/2010 12 FAILED TO FILE THE PROPER APPEAL DULY AUTHORIZED BY THE LEARNED COMMISSIONER UNDER SEC.253 SUB-SECTION (2) IN TIME. 3.2 WE HAVE CONSIDERED THE FACTS OF THE CASE AND SUBMISSIONS MADE BEFORE US. WE HAVE ALREADY DISMISSED THE APPEAL ON MERITS. IT HAS BEEN POINTED OUT THAT THE AO HIMSELF HAS ALLOWED THE BAL ANCE AMOUNT IN NEXT FOUR YEARS. THIS IS THE ADMITTED POSITION. THEREFORE, THE QUESTION OF LIMITATION IS NOW ONLY OF ACADEMIC INTEREST. ACCORDINGLY, THE LAPSES OR THE LATCHES ON THE PART OF REVENUE ALSO LOOSE SIGNIFICANCE BEC AUSE THE GROUND TAKEN BY IT IS NOT MERITORIOUS. THEREFORE, WE DO NOT THINK IT NECESSARY TO GO INTO THIS CONTROVERSY IN DETAIL. 4. THE RESULT IS THAT THE APPEAL IS DISMISSED. SD/- SD/- (I.P. BANSAL) (K.G.BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER SP SATIA COPY OF THE ORDER FORWARDED TO:- BACARDI MARTINI INDIA LTD., NEW DELHI. DCIT, CIRCLE 2, NEW DELHI. CIT(A) CIT THE DR, ITAT, NEW DELHI. ASSISTANT REGISTRAR.