Ashok Bricks Industries Pvt. Ltd, Jharsuguda V. The DCIT, Sambalpur

ITA 384/CTK/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6327 (ITAT-CUTTACK)
• Duration Of Justice: 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-05-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 01-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M K KEDIA
• Keywords: Unexplained cash credit; Condonation of delay

Judgement Text

1 I.T.A.NO.384 /CTK / /2013 ASSESSMENT YEAR: 2005 - 06 , CUTTACK IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH , CUTTACK ( )BEFORE . . , , HONBLE SHRI P.K.BANSAL, ACCOUNTANT MEMBER. /AND . . , HONBLE SHRI D.T.GARASIA, JUDICIAL MEMBER / I.T.A.NO.384 /CTK/ /2013 ! ' / ASSESSMENT YEAR: 2005-06 ASHOK BRICKS INDUSTRIES PVT.LTD., JHARSUGUDA PA NO.AADCA 6930 F - - - VERSUS- DCIT, CIRCLE 1(1), SAMBALPUR ( $% /APPELLANT ) ( &'$% /RESPONDENT) $% ) / FOR THE APPELLANT: /SHRI M.K.KEDIA &'$% ) /FOR THE RESPONDENT: /SHRI S.C.MOHANTY * + , / DATE OF HEARING: 29 .4.2014 -.' , / DATE OF PRONOUNCEMENT: 1 .5 .2014 / / ORDER PER BENCH THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER DATED 13.3.2013 OF LD CIT(A), BERHAMPUR FOR THE ASSESSMENT YEAR 2005-06, IN THE M ATTER OF ASSESSMENT UNDER SECTION 143(3)/147 OF THE I.T.ACT ON THE FOLLOWING GROUNDS: 1) THAT, THE LEARNED C.I.T. (APPEALS) IS NOT JUSTIFIE D IN NOT CONDONING THE DELAY IN FILLING THE APPEAL FOR INADVERTENTLY MENTIONING WRONG DATE IN THE APPEAL MEMO WITH REGARD TO THE RECEIPT OF THE ASSESSMENT O RDER AND DEMAND NOTICE, 2 I.T.A.NO.384 /CTK / /2013 ASSESSMENT YEAR: 2005 - 06 PARTICULARLY WHEN THE CIRCUMSTANCES UNDER WHICH THE DELAY OF 80 DAYS WAS CAUSED WAS DULY EXPLAINED AND SHOULD HAVE CONDONED THE DELAY. 2) THAT WRONG MENTIONING OF DATE OF SERVICED OF DEMAND NOTICE WAS NOT INTENTIONAL ON THE PART OF THE APPELLANT. IT WAS ME NTIONED INADVERTENTLY. HAD THERE WAS DELIBERATE INTENTION OF THE APPELLANT HE WOULD NOT HAVE ADMITTED THE DELAY FILING OF APPEAL BEFORE THE LD. CIT(A) AN D REQUESTED FOR CONDONATION OF DELAY BASED ON THE REASONABLE CIRCUM STANCES FOR DELAYED FILING. 3) THAT, THE LD. CIT(A) IS WRONG IN NOT DISCUSSING THE OTHER GROUNDS OF APPEAL TAKEN BY THE APPELLANT IN THE APPEAL ORDER. 4) THAT THE LD.AO IS NOT JUSTIFIED TO ADD RS.74,596/- ON ACCOUNT OF INTEREST ON FDRS. BASED ON TDS CERTIFICATE ISSUED BY THE BANKS ON RECEIPT BASIS AS AGAINST THE CLAIM OF THE APPELLANT THAT IT HAS ACCO UNTED FOR THE INTEREST ON ACCRUAL BASIS. 5. THAT, THE LEARNED AO IS NOT JUSTIFIED TO ADD RS. 5,80,000/- AS UNEXPLAINED CASH CREDIT RECEIVED FROM 4 SHARE HOLDERS WHO ARE A SSESSED TO INCOME TAX IN THEIR RESPECTIVE INCOME TAX JURISDICTIONS, HAVE MAD E THE DEPOSITS FROM THEIR BANK ACCOUNTS AND HAVE THE CAPACITY TO INVEST THE M ONEY. THEY ARE THE EXISTING SHARE HOLDERS OF THE COMPANY AND ARE THE R ELATIVES OF THE DIRECTORS. THE FACTS HAVE BEEN DISCLOSED TO THE LD. AO AS WELL AS TO THE LD. CIT(A) DURING THE COURSE OF HEARING BUT INSTEAD OF VERIFYI NG THE SAME HAVE SIMPLY ADDED THE SUM AS UNEXPLAINED CASH CREDIT WHICH IS W RONG, ILLEGAL AND UNJUSTIFIED IN VIEW OF THE SETTLED POSITION OF LAW. 2. AT THE TIME OF HEARING, LD A.R. SUBMITTED THAT T HE CIT(A) HAS DISMISSED THE APPEAL ON ACCOUNT OF DELAY IN FILING THE APPEAL. HE REFERR ED TO THE WRITTEN SUBMISSION FILED BEFORE THE TRIBUNAL ALONGWITH AN AFFIDAVIT SWORN BY SHRI PRAMO D KUMAR AGARWAL, MANAGING DIRECTOR OF THE ASSESSEE IN THIS REGARD. HE CONTENDED THAT THE ORDER OF THE IMPUGNED ASSESSMENT YEAR WAS ISSUED BY THE DCIT, SAMBALPUR ON 30.12.2010 AND RECEIVED BY THE ASSESSE THROUGH HIS C.A. ON 31.12.2010. ALTHOUGH THE ASSESSMENT ORDER WAS HANDED OVER BY THE C.A. TO ONE OUR OFFICE STAFF TO HAND OVER THE SAME TO THE MD OF THE ASSESSEE FIRM, BUT SAID OFFICE STAFF LEFT THE ORGANIZATION AND FORGET TO HAND OVER THE A SSESSMENT ORDER. HE CONTENDED THAT WHEN THE INCOME TAX DEPARTMENT TOOK ACTION FOR RECOVERY OF THE DEMAND, THE MD OF THE ASSESSEE FIRM ENQUIRED ABOUT SUCH AN ACTION AND LATER ON THE ASSESSMENT ORDER WAS TRACED OUT IN THE 3 I.T.A.NO.384 /CTK / /2013 ASSESSMENT YEAR: 2005 - 06 OFFICE. HENCE, THERE WAS DELAY OF 80 DAYS IN FILIN G THE APPEAL. HE SUBMITTED THAT THE DELAY WAS NOT DELIBERATE AND INTENTIONAL BECAUSE ASSESSEE WILL NOT GAIN ANYTHING BY NOT FILING THE APPEAL. HE ALSO CONTENDED THAT THE AO IS NOT JUST IFIED IN ADDING RS.5,80,000/- AS UNEXPLAINED CREDIT WHEN ALL THE 4 SHARE APPLICANTS ARE INDENTIFIED AND ASSESSED TO INCOME TAX AND ALSO ADDING RS.74,596/- ON ACCOUNT OF INTER EST ON FDRS. IN VIEW OF THIS, IT IS THE CONTENTION OF THE ASSESSEE THAT THE ADDITION OF RS. 5,80,000/- AND RS.74,596/- BE DELETED. 3. ON THE OTHER HAND, LD D.R. SUPPORTED THE ORDERS OF AUTHORITIES BELOW. 4. HAVING HEARD BOTH THE SIDES, WE ARE OF THE CONSI DERED OPINION THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE IN NOT FILING THE APP EAL BEFORE THE CIT(A). THE HONBLE ALLAHABAD HIGH COURT IN THE CASE OF GANGA SAHAI RAM SWARUP AND ANOTHER VS. ITAT, 271 ITR 512 (ALL) HELD THAT THE DELAY OF SHORT PERIOD S HOULD BE CONDONED BECAUSE THE ASSESSEE WAS NOT GOING TO GAIN ANYTHING OUT OF IT. THEREF ORE, WE CONDONE THE DELAY IN FILING THE APPEAL BEFORE THE CIT(A). SINCE THE CIT(A) HAS DIS MISSED THE APPEAL BECAUSE OF DELAY IN FILING THE APPEAL, WE SET ASIDE HIS ORDER AND RESTO RE THE MATTER BACK TO HIS FILE TO REDECIDE THE ISSUE IN APPEAL ON MERITS AFTER HEARING BOTH T HE PARTIES 5. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 1 .5. 2014 ) S D / - S D / - ( . . ) , (P.K.BANSAL), ACCOUNTANT MEMBER ( . . ), (D.T.GARASIA(JUDICIAL MEMBER ( , )DATE. 1 .5 .2014 4 I.T.A.NO.384 /CTK / /2013 ASSESSMENT YEAR: 2005 - 06 / &, 1',2 - COPY OF THE ORDER FORWARDED TO: 1 . $% / THE APPELLANT : ASHOK BRICKS IND. PVT.LTD., JHARSUGUDA 2 &'$% / THE RESPONDENT:DCIT, CIRCLE 1(1), SAMBALPUR 3 . / /THE CIT, SAMBALPUR 4 . / ( )/THE CIT(A),BERHAMPUR 5 . 3 &, /DR, CUTTACK BENCH 6 . GUARD FILE . ' , &, /TRUE COPY, / * / BY ORDER, ASST.REGISTRAR, ITAT, CUTTA CK (B.K.PARIDA) SENIOR.PRIVATE SECRETARY.