M/s. Apollo Construction Equipments (P) Ltd., Mehsana V. The ACIT.,(OSD), Mehsana

ITA 3257/AHD/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6143 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 7 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 07-07-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 07-12-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K MEENA
• Assessee Lawyers: S N DIVETIA SHRI M J SHAH
• Keywords: Business income; Opportunity of being heard; Earning of tax free income
• Section: 234B; 14A; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH AHMEDABAD (BEFORE S/SHRI G. D. AGARWAL, VP AND BHAVNESH SAINI , JM) ITA NO.2329/AHD/2009 A. Y.: 2006-07 THE D. C. I. T., MEHSANA CIRCLE-1, 2 ND FLOOR APOLLO ENCLAVE, HIGHWAY, MEHSANA VS APOLLO CONSTRUCTION EQUIPMENT PVT. LTD., HIGHWAY ROAD, MEHSANA, KALOL PA NO. AACCA 0194 N (APPELLANT) (RESPONDENT) ITA NO.3257/AHD/2009 A.Y.: 2006-07 APOLLO CONSTRUCTION EQUIPMENT PVT. LTD., HIGHWAY ROAD, MEHSANA, KALOL VS THE A. C. I. T. (OSD), MEHSANA CIRCLE-1, 2 ND FLOOR APOLLO ENCLAVE, HIGHWAY, MEHSANA PA NO. AACCA 0194 N (APPELLANT) (RESPONDENT) DEPARTMENT BY SHRI S. K. MEENA, SR. DR ASSESSEE BY SHRI S. N. DIVETIA ON BEHALF OF SHRI M.J.SHAH, AR O R D E R PER BHAVNESH SAINI: BOTH THE CROSS APPEALS ARE DIRECTED AGAINST THE ORDER OF THE LEARNED CIT(A), GANDHINAGA R DATED 07 TH MAY, 2009, FOR ASSESSMENT YEAR 2006-07. 2. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOT H THE PARTIES AND PERUSED THE FINDINGS OF THE AUTHORITIES BELOW. ITA NO.2329 AND 3257/AHD/2009 APOLLO CONSTRUCTION EQUIPMENTS PVT. LTD. 2 ITA NO.2329/AHD/2009 (DEPARTMENTAL APPEAL) 3. THE DEPARTMENTAL APPEAL IS FILED ON THE FOLLOWIN G GROUNDS OF APPEAL: 1. THE LD. CIT(A) WAS NOT JUSTIFIED IN DIRECTING T O RE- WORK THE DISALLOWANCE OF RS.13,79,201/- MADE U/S. 14A OF THE I. T. ACT BY APPLYING THE RULE 8 D OF TH E I. T. RULES. 2. THE LD. CIT(A) WAS NOT JUSTIFIED IN DIRECTING TH E AO TO INCLUDE THE ADDITION MADE ON ACCOUNT OF DISALLOWANCE U/S. 14A OF THE I. T. ACT FOR WORKING OUT THE DEDUCTION U/S. 80IA OF THE I. T. ACT. 4. ON GROUND NO.1, AS PER THE ASSESSMENT ORDER, THE ASSESSEE HAS INVESTED A SUM OF RS.2,31,44,375/- TOWARDS PURC HASE OF SHARES OF VARIOUS GROUPS, ON THE OTHER HAND, THE ASSESSEE HAS ALSO BEEN TAKEN LOANS FROM BANKS AND HAS BEEN MAKING PAYMENTS TOWARDS INTEREST, THE NET INTEREST EXPENSES BEING RS.13,79, 201/-. AS PER THE AO, SINCE THE INCOME FROM INVESTMENTS IN SHARES I.E . DIVIDEND INCOME IS EXEMPT UNDER THE IT ACT, THE INTEREST TOWARDS IN VESTMENTS MADE IN THESE COMPANIES WOULD BE DISALLOWABLE UNDER THE PRO VISIONS OF SECTION 14A OF THE IT ACT. SINCE SUCH NOTIONAL INTE REST COME TO BE HIGHER THAN THE NET INTEREST DEBITED TO THE ACCOUNT S, THE AO DISALLOWED THE ENTIRE CLAIM OF RS.13,79,201/-. IT W AS SUBMITTED BEFORE THE LEARNED CIT(A) THAT THE MONEY BORROWED FROM THE COMPANIES AND INTEREST PAID THEREON HAD NO NEXUS WITH THE INVESTM ENT MADE IN SHARES AND IN FACT NO NEW INVESTMENT IN SHARES OF T HE GROUP COMPANIES HAD BEEN MADE DURING THE PREVIOUS YEAR OF THE YEAR UNDER CONSIDERATION. IT WAS FURTHER STATED THAT EVE N OTHERWISE IT IS ITA NO.2329 AND 3257/AHD/2009 APOLLO CONSTRUCTION EQUIPMENTS PVT. LTD. 3 DIFFICULT TO BIFURCATE THE INTEREST COMPONENT FOR T HE INVESTMENT MADE FOR THE BUSINESS AND THE INVESTMENT MADE IN SHARES. THE ATTENTION WAS ALSO DRAWN TO THE ORDER OF THE LEARNED CIT(A) I N EARLIER YEAR 2005-06 WHERE THE ASSESSEES FACTS HAVE BEEN ACCEPT ED AND A SIMILAR DISALLOWANCE HAD BEEN DELETED. IT WAS FURTH ER ARGUED THAT WITHOUT PREJUDICE TO THE ABOVE THE AO HAS ERRED IN NOT FOLLOWING RULE 8D OF THE IT RULES AS THE RULE IS OPERATIVE RETROSP ECTIVE. THE LEARNED CIT(A) REPRODUCED PART OF THE SUBMISSIONS OF THE AS SESSEE IN THE APPELLATE ORDER IN WHICH THE ASSESSEE EXPLAINED THE FACTS THAT THE ASSESSEE HAS CLAIMED INTEREST EXPENSES ON BORROWING S IN RESPECT OF BUSINESS BORROWINGS WHICH HAS DIRECT NEXUS WITH ITS UTILIZATION FOR THE PURPOSE OF BUSINESS AND THE FUNDS HAVE NO NUCLEUS W ITH THE INVESTMENT EARNING EXEMPTED INCOME. SUCH INTERESTS ARE AS UNDER: (A) INTEREST ON BORROWING FROM BANK OF BARODA ON WO RKING CAPITAL AGAINST HYPOTHECATION OF STOCK AND MACHINER Y (AS PER SANCTION LETTER). THE STOCK OF RS.1,03,53,755/ AND THE LOAN AVAILED IS RS.61,65,566/-. THUS THERE IS A DIR ECT NEXUS OF THE EXPENDITURE WHICH RELATES TO THE BUSIN ESS INCOME EARNING ONLY. (B) THE OTHER EXPENSES INCLUDED IN BANK INTEREST IS BANK CHARGES AND BANK COMMISSION OF RS.1,55,605/-. THIS EXPENDITURE IS DIRECT EXPENDITURE FOR THE BUSINESS ONLY. THEREFORE, THERE IS NO NEXUS OF THIS EXPENSE WITH T HE EXEMPTED INCOME. ITA NO.2329 AND 3257/AHD/2009 APOLLO CONSTRUCTION EQUIPMENTS PVT. LTD. 4 (C) THE NEXT EXPENSE INCLUDED IN THE INTEREST EXPEN SE IS THE PROCESSING CHARGES OF RS.1,21,718/-. THIS EXPENSE I S ALSO DIRECTLY CONNECTED WITH THE BUSINESS ACTIVITY ONLY. IT HAS NO CONNECTION WITH THE EXEMPTED INCOME EARNING ASSE T. (D) THE NEXT EXPENSE IS ON PRIVATE UNSECURED BORROW INGS RS.12,29,660/- ON THE BORROWINGS OF RS.1,16,71,371/ -. THE INTEREST RATE IS 11% P.A. THE SUM TOTAL OF THIS ABOVE EXPENSE IS RS.22,67,102/-. OUT OF THIS TOTAL EXPENS E, THE INTEREST CHARGED ON THE FUNDS ADVANCED TO OTHERS IS RS.8,87,901/- AND THE BALANCE RESULTING FIGURE IS RS.13,79,201/- WHICH ARE CHARGED TO P & L ACCOUNTS. IT W AS FURTHER EXPLAINED OUT OF THE TOTAL INTEREST EXPENSES CLAIMED, THE BALANCE FIGURE INCLUDED IN THE TOTAL INTEREST E XPENSES WHICH CANNOT PROBABLY BE BIFURCATED BETWEEN BUSINESS AND EXEMPTED INVESTMENT ASSET IS RS.3,46,759/-.THEREFORE, EVEN I F ASSUMING BUT WITHOUT ACCEPTING ANY DISALLOWANCE IS CALLED FOR U/ S 14A OF THE IT ACT, THE AMOUNT WHICH IS REQUIRED TO BE CONSIDERED IS RS .3,46,759/-. THE AO HAS FAILED TO CONSIDER THE FACTS PROPERLY. THE L EARNED CIT(A) CONSIDERING THE EXPLANATION OF THE ASSESSEE IN THE LIGHT OF THE FINDINGS OF THE AO HELD THAT DISALLOWANCE U/S 14A OF THE IT ACT IS CALLED FOR. THEREFORE, THE AO WAS DIRECTED TO APPLY RULE 8 D OF THE IT RULES TO MAKE THE COMPUTATION FOR THE DISALLOWANCE. HIS FIND INGS IN PARA 3.3 OF THE APPELLATE ORDER ARE REPRODUCED AS UNDER: 3.3 THE MATTER HAS BEEN GIVEN DUE CONSIDERATION. CONSEQUENT TO THE DECISION OF THE SPECIAL BENCH IN ITO ITA NO.2329 AND 3257/AHD/2009 APOLLO CONSTRUCTION EQUIPMENTS PVT. LTD. 5 VS. DAGA CAPITAL MANAGEMENT (P) LTD. 119 TTJ 289, THERE IS A MATERIAL DIFFERENCE TO THE LEGAL APPROAC H TO THE MATTER. ALTHOUGH IT IS A FACT THAT IN THE PRECEDING YEAR IT HAD BEEN HELD THAT SECTION 14A WOULD NOT BE APPLICA BLE, THE INSERTION OF SUB-SECTIONS 2 & 3 TO SECTION 14A AND THE DECISION OF THE SPECIAL BENCH THAT RULE 8D IS OPERA TIVE RETROSPECTIVELY, WOULD LEAD TO INFERENCE THAT THE O NUS IS NOT ON THE DEPARTMENT TO SHOW THE NEXUS BETWEEN THE INCOME EXEMPT FROM TAXATION AND THE LIKELY EXPENSES INCURRED TO EARN THAT INCOME. SUB-SECTION 3 SPECIFI CALLY TAKES CARE OF THE APPELLANTS CASE WHETHER NOTWITHSTANDING SUCH A CLAIM, APPLICABILITY OF SUB- SECTION 2 HAS BEEN PROVIDED FOR. AS HAS BEEN STATED BY THE SP. BENCH, WHAT IS RELEVANT IS TO WORK OUT THE EXPENDIT URE IN RELATION TO EXEMPT INCOME AND TO EXAMINE WHETHER EXPENDITURE INCURRED BY ASSESSEE HAS RESULTED INTO EXEMPT INCOME OR TAXABLE INCOME. SINCE THERE IS NO ESTOPPEL IN INCOME-TAX PROCEEDINGS, OBVIOUSLY THE DECISION GIVEN IN THE PRECEDING YEARS CAN BE CHANGE D IN THE LIGHT OF THE NEW JUDICIAL POSITION. APPARENTLY THE ASSESSEE ITSELF IS ALSO NOT AVERSE TO APPLICATION O F RULE 8D IN THE CONTEXT. THEREFORE, IN THE FACTS OF THE C ASE, I HOLD THE DISALLOWANCE U/S. 14A IS CALLED FOR. THE ASSESSING OFFICER MAY APPLY RULE 8D TO MAKE THE COMPUTATION FOR THE DISALLOWANCE. 5. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND S UBMITTED THAT SINCE THERE WAS NO NEXUS OF INTEREST EXPENSES WITH EXEMPT INCOME, THEREFORE, THERE IS NO QUESTION OF INTEREST EXPENDI TURE BE DISALLOWED. HE FURTHER SUBMITTED THAT NOW THE MATTER IS FINALLY DECIDED BY THE HONBLE BOMBAY HIGH COURT ION THE CASE OF GODREJ AND BOYCE MANUFACTURING CO. LTD. VS DCIT AND ANOTHER 328 ITR 81 IN WHICH THE HONBLE BOMBAY HIGH COURT HELD THAT SECTION 14A IS APPLICABLE TO DIVIDEND INCOME AND INCOME FROM MUTUAL FUNDS EXEMPT UNDER ITA NO.2329 AND 3257/AHD/2009 APOLLO CONSTRUCTION EQUIPMENTS PVT. LTD. 6 SECTION 10(33) OF THE IT ACT. THE HON HIGH COURT HAS ALSO HELD THAT RULE 8D OF THE INCOME TAX RULES IS NOT RETROSP ECTIVE AND IS APPLICABLE FROM THE ASSESSMENT YEAR 2008-09 AND THE DISALLOWANCE FOR THE EARLIER PERIOD TO BE DETERMINED ON REASONAB LE BASIS. HE HAS ALSO RELIED UPON THE DECISION OF THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS HERO CYCLES LTD., 323 I TR 518. HE HAS, THEREFORE, SUBMITTED THAT THE MATER MAY BE REMANDED TO THE FILE OF THE AO FOR RECONSIDERATION. THE LEARNED DR ALSO SUGGEST ED THAT THE MATTER MAY BE REMANDED TO THE FILE OF THE AO FOR RE CONSIDERATION. 6. ON CONSIDERATION OF THE ABOVE FACTS AND SUBMISSI ON OF THE PARTIES, WE ARE OF THE VIEW THAT THE MATTER IS COVE RED BY THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF GOD REJ AND BOYCE MANUFACTURING CO. LTD. VS DCIT AND ANOTHER 328 ITR 81 IN WHICH IT WAS HELD AS UNDER: HELD, THAT THE PROVISIONS OF RULE 8D OF THE RULES WHICH HAVE BEEN NOTIFIED WITH EFFECT FROM MARCH 24, 2008, WOULD APPLY WITH EFFECT FROM ASSESSMENT YEAR 2008-09. EVEN PRIOR TO ASSESSMENT YEAR 2008-09, WHEN RULE 8D WAS NOT APPLICABLE, THE ASSESSING OFFICER HAD TO ENFORCE THE PROVISIONS OF SUB-SECTIO N (1) OF SECTION 14A. FOR THAT PURPOSE, THE ASSESSING OFFICER IS DUTY BOUND TO DETERMINE THE EXPENDITURE WHICH HAS BEEN INCURRED IN RELATION TO INCOME WHICH DOES NOT FORM PART OF TOTAL INCOME UNDER THE ACT. T HE ASSESSING OFFICER MUST ADOPT A REASONABLE BASIS OR METHOD CONSISTENT WITH ALL THE RELEVANT FACTS AND CIRCUMSTANCES AFTER FURNISHING A REASONABLE OPPORTUNITY TO THE ASSESSEE TO PLACE ALL GERMANE MATERIAL ON RECORD. THE PROCEEDINGS FOR ASSESSMENT YEAR 2002-03 WOULD STAND REMANDED TO THE ASSESSING OFFICER. THE ASSESSING OFFICER SHOULD DETERMINE AS TO ITA NO.2329 AND 3257/AHD/2009 APOLLO CONSTRUCTION EQUIPMENTS PVT. LTD. 7 WHETHER THE ASSESSEE HAD INCURRED ANY EXPENDITURE (DIRECT OR INDIRECT) IN RELATION TO DIVIDED INCOME/INCOME FROM MUTUAL FUNDS WHICH DOES NOT FORM PART OF THE TOTAL INCOME AS CONTEMPLATED UNDER SECTION 14A. THE ASSESSING OFFICER CAN ADOPT A REASONABLE BASIS FOR EFFECTING THE APPORTIONMENT. WHILE MAKING THAT DETERMINATION, THE ASSESSING OFFICER SHOULD PROVIDE A REASONABLE OPPORTUNITY TO THE ASSESSEE OF PRODUCING ITS ACCOUNTS AND RELEVANT OR GERMANE MATERIAL HAVING A BEARING ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 6.1 THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS HERO CYCLES LTD., 323 ITR 518 HELD AS UNDER: HELD, DISMISSING THE APPEAL, THAT THE EXPENDITURE ON INTEREST WAS SET OFF AGAINST THE INCOME FROM INTERE ST AND THE INVESTMENT IN THE SHARES AND FUNDS WERE OUT OF THE DIVIDEND PROCEEDS. IN VIEW OF T HIS FINDING OF FACT, DISALLOWANCE UNDER SECTION 14A WAS NOT SUSTAINABLE. WHETHER, IN A GIVEN SITUATION, ANY EXPENDITURE WAS INCURRED WHICH WAS TO BE DISALLOWED, WAS A QUESTION OF FACT. THE CONTENTION OF THE REVENUE THAT DIRECTL8Y OR INDIRECTLY SOME EXPENDITURE WAS ALWAYS INCURRED WHICH MUST BE DISALLOWED UNDER SECTION 14A AND THE IMPACT OF EXPENDITURE SO INCURRED COULD NOT BE ALLOWED TO BE SET OFF AGAINST THE BUSINESS INCOME WHICH MAY NULLI FY THE MANDATE OF SECTION 14A, COULD NOT BE ACCEPTED. DISALLOWANCE UNDER SECTION 14A REQUIRED FINDING OF INCURRING OF EXPENDITURE AND WHERE IT WAS FOUND THA T FOR EARNING EXEMPTED INCOME NO EXPENDITURE HAD BEEN INCURRED, DISALLOWANCE UNDER SECTION 14A COULD NOT STAND. CONSEQUENTLY, THE DISALLOWANCE WAS NOT PERMISSIBLE. 7. IN VIEW OF THE ABOVE DECISIONS, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THE ISSUE TO THE FILE OF THE AO WITH ITA NO.2329 AND 3257/AHD/2009 APOLLO CONSTRUCTION EQUIPMENTS PVT. LTD. 8 DIRECTION TO RE-DECIDE THE SAME ISSUE AFRESH AS PER THE ABOVE DECISIONS. THE AO SHALL GIVE REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND THE ASSESSEE SHALL PRODUCE SUFFICI ENT MATERIAL BEFORE THE AO FOR CONSIDERATION OF THE ISSUE. IN TH E RESULT, GROUND NO.1 OF THE DEPARTMENTAL APPEAL IS ALLOWED FOR STAT ISTICAL PURPOSES. 8. ON GROUND NO.2, THE ASSESSEES GRIEVANCE BEFORE THE LEARNED CIT(A) WAS ABOUT NOT INCLUDING THE ADDITION ON ACCO UNT OF DISALLOWANCE U/S 14A OF THE IT ACT TO THE ELIGIBLE PROFITS FOR WORKING OUT DEDUCTION U/S 80 IA OF THE IT ACT. THE CONTENTI ON OF THE ASSESSEE IS REPRODUCED IN THE APPELLATE ORDER IN WHICH IT WA S BRIEFLY EXPLAINED THAT THE ASSESSEE HAS ONLY SOURCE OF INCOME FROM BU SINESS FROM INDUSTRIAL UNDERTAKINGS. THE PROFIT IS ELIGIBLE TO DEDUCTION U/S 80IA OF THE IT ACT. IT WAS, THEREFORE, CONTENDED THAT DISAL LOWANCE OF THE EXPENDITURE RESULTED INTO INCREASE IN INDUSTRIAL PR OFIT ONLY AND, THEREFORE, THE AO SHOULD HAVE ALLOWED DEDUCTION ON THESE INCREASE IN INDUSTRIAL PROFIT WHICH WAS NOT DONE. IT WAS CONTEN DED THAT THE AO HAS ERRED IN FACT IN NOT ALLOWING DEDUCTION U/S 80I A OF THE IT ACT ON THE AMOUNT OF RS.13,79,201/-. THE LEARNED CIT(A) AG REED WITH THE CONTENTION OF THE ASSESSEE THAT INCREASED INCOME SH ALL BE ELIGIBLE INCOME FOR DEDUCTION U/S 80IA OF THE IT ACT, HOWEVE R NOTED THAT QUANTUM OF INCREASE WILL BE CRYSTALLIZED ONLY AFTER THE AO MADE HIS COMPUTATION UNDER RULE 8D OF THE IT RULES AS PER DE CISION ON SECTION 14A OF THE IT ACT. THE AO WAS ACCORDINGLY DIRECTED TO INCLUDE SUCH INCREASE IN THE BUSINESS INCOME AND TO TREAT IT AS ELIGIBLE PROFIT FOR DEDUCTION U/S 80 IA OF THE IT ACT. ITA NO.2329 AND 3257/AHD/2009 APOLLO CONSTRUCTION EQUIPMENTS PVT. LTD. 9 9. BOTH THE PARTIES DID NOT ARGUE ON THIS GROUND, H OWEVER, WE FIND THAT THIS ISSUE RELATES TO QUANTUM OF DISALLOWANCE TO BE DECIDED BY THE AO WHILE WORKING OUT THE COMPUTATION OF EXPENDI TURE U/S 14A OF THE IT ACT. SINCE, THE ISSUE OF DISALLOWANCE U/S 1 4A OF THE IT ACT ON GROUND NO.1 IS RESTORED TO THE FILE OF THE AO FOR R ECONSIDERATION, THEREFORE, WE RESTORE THIS ISSUE ALSO TO THE FILE O F THE AO FOR PASSING THE ORDER AFRESH AFTER TAKING THE VIEW ON THE DISAL LOWANCE U/S 14A OF THE IT ACT. IN THE RESULT, GROUND NO.2 OF THE APPEA L OF THE REVENUE IS ALSO ALLOWED FOR STATISTICAL PURPOSES. 10. IN THE RESULT, THE DEPARTMENTAL APPEAL IS ALLOW ED FOR STATISTICAL PURPOSES. ITA NO. 3257/AHD/2009 (ASSESSEES APPEAL) 11. THE APPEAL OF THE ASSESSEE IS FILED ON THE FOLL OWING GROUNDS: 1. THE C. I. T. (APPEALS) ERRED IN UPHOLDING THE DISALLOWANCE UNDER SECTION 14A OF THE I. T. ACT. 2. THE C. I. T. (APPEALS) ERRED IN RELYING ON SUB SECTIONS (2) AND (3) TO SECTION 14A OF THE ACT THOU GH BOTH THESE SUB SECTIONS ARE INSERTED BY FIANC ACT, 2006 W. E. F. 1.4.2007. 3. THE C. I.T. (APPEALS) ERRED IN OVERLOOKING THE CONTENTION OF THE ASSESSEE THAT THE BORROWED FUNDS HAD NO NEXUS WITH THE INVESTMENTS IN SHARES, THE INCOME FROM WHICH IS EXEMPT. 4. THE C. I. T. (APPEALS) ERRED IN ASKING THE ASSES SING OFFICER TO APPLY RULE 8 D OF THE I. T. RULES FOR TH E PURPOSE OF DISALLOWANCE UNDER SECTION 14A THOUGH THE RULE IS W. E. F. 24.03.2008. ITA NO.2329 AND 3257/AHD/2009 APOLLO CONSTRUCTION EQUIPMENTS PVT. LTD. 10 5. THE C. I. T. (APPEALS) ERRED IN UPHOLDING CHARGI NG OF INTEREST UNDER SECTION 234B OF THE I. T. ACT. 12. THE EFFECTIVE GROUNDS OF THE APPEAL OF THE ASSE SSEE ARE ENTIRELY DEPENDENT UPON THE FINDINGS TO BE GIVEN BY THE AO O N GROUND NO.1 OF THE APPEAL OF THE REVENUE ON WHICH WE HAVE SET ASID E THE ENTIRE ISSUE AND SENT THE SAME TO THE AO FOR RECONSIDERATI ON IN VIEW OF THE DECISION OF THE HONBLE BOMBAY HIGH COURT AND THE H ONBLE PUNJAB & HARYANA HIGH COURT. WE MAY HOWEVER, NOTE THAT OFFIC E NOTED IN THE APPEAL PAPERS THAT THE APPEAL OF THE ASSESSEE IS TI ME BARRED BY 153 DAYS. THE ASSESSEE MENTIONED 08-05-2009 AS THE DATE OF COMMUNICATION OF THE ORDER APPEALED AGAINST IN COLU MN NO.9, HOWEVER, THE APPEAL IS FILED IN THE OFFICE OF THE T RIBUNAL ON 07-12-2009. AS PER RECORD ON THE SAME DATE THE ASSE SSEE WAS NOTIFIED OF THE DEFECTS BEING THE APPEAL TIME BARRE D BY 153 DAYS. THE ASSESSEE DID NOT FILE ANY PETITION FOR CONDONATION OF DELAY. EVEN, NO REQUEST IS MADE TO CONDONE THE DELAY IN THE MATTER. NO REASONABLE OR SUFFICIENT CAUSE EXPLAINED AS TO WHY THE APPEAL OF THE ASSESSEE WAS FILED BELATEDLY. THE ASSESSEE HAS NO EXPLANATION TO EXPLAIN THE DELAY. IN THE ABSENCE OF ANY MATERIAL ON RECORD THE APPEAL OF THE ASSESSEE IS TREATED AS TIME BARRED. WE MAY ALSO NOTE THAT IN ALL THE GROUNDS OF APPEAL OF THE ASSESSEE, WE HAVE ALREADY RESTORED TH E MATTER TO THE FILE OF THE AO WHILE DECIDING THE DEPARTMENTAL APPE AL. ACCORDINGLY, WE HOLD THAT THE APPEAL OF THE ASSESSEE IS TIME BAR RED AND ACCORDINGLY WE DISMISS THE SAME IN LIMINE. ITA NO.2329 AND 3257/AHD/2009 APOLLO CONSTRUCTION EQUIPMENTS PVT. LTD. 11 13. IN THE RESULT, THE DEPARTMENTAL APPEAL IS ALLOW ED FOR STATISTICAL PURPOSES; HOWEVER THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 08-07-2011 SD/- SD/- (G. D. AGARWAL) VICE PRESIDENT (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 08-07-2011 LAKSHMIKANT/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER DY. REGISTRAR, ITAT, AH MEDABAD