DAWN INDIA, MUMBAI V. ACIT 12(1), MUMBAI

ITA 4055/MUM/2012

• Counselvise Citation: 405519914 RSA 2012
• Duration Of Justice: 2 year(s) 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 04-08-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 08-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: TRIPURA SUNDARI
• Keywords: Condonation of delay
• Section: 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D, MUMBAI BEFORE SHRI RAJENDRA, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER ITA NO. 4055/MUM/2012 ASSESSMENT YEAR: 2008-09 M/S. DAWN INDIA 411/412, APEEJAY HOUSE, 130, B.S. MARG, MUMBAI- 400 023 VS. ACIT 12(1) MUMBAI (APPELLANT) (RESPONDENT) PERMANENT ACCOUNT NO. :- AAAFD 2674 D ASSESSEE BY : SHRI VIJAY MEHTA REVENUE BY : SMT. TRIPURA SUNDARI DATE OF HEARING : 04.08.2014 DATE OF PRONOUNCEMENT : 28.08.2014 O R D E R PER DR. S.T.M. PAVALAN, JM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF THE LD.CIT(A)-23, MUMBAI DATED 20.03.2012 FOR THE ASSES SMENT YEAR 2008-09. 2. AT THE OUTSET, IT IS OBSERVED THAT THERE IS A DE LAY OF 10 DAYS IN FILING THE APPEAL. IN THIS CONNECTION, THE ASSESSEE HAS FILED A PETITION FOR CONDONATION OF DELAY IN THE SHAPE OF AN AFFIDAVIT, SWORN BY THE PARTNER EXPLAINING THE REASONS FOR NOT FILING THE APPEAL WITHIN THE TIME PERIOD OF LIMITAT ION. THE RELEVANT PORTION OF THE AFFIDAVIT IS EXTRACTED HEREUNDER: 1. M/S. DAWN INDIA HAD FILED AN APPEAL TO THE COMM ISSIONER OF INCOME TAX (APPEALS)- 23 MUMBAI AGAINST THE ASSESSMENT ORDER DATED 20.12. 2010 PASSED BY THE ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE 12(1) MUMBAI FOR ASSESSMENT YEAR 2008-09. 2. THE HON. COMMISSIONER OF INCOME TAX (APPEALS)-23 DISPOSED THE APPEAL FOR ASSESSMENT YEAR 2008-09 VIDE APPELLATE ORDER NO. CI T(A)-23/ACIT 12(1)/IT-295/10-11 DATED 20.03.2012 WHICH ORDER WAS RECEIVED BY US ON 30.03. 2012 AND UPON PERUSAL IT WAS FELT NECESSARY FOR FILING FURTHER APPEAL. ITA NO. 4055/MUM/2012 M/S. DAWN INDIA ASSESSMENT YEAR: 2008-09 2 3. M/S. DAWN INDIA WAS REQUIRED T FILE FURTHER APPE AL TO THE HON. ITAT BEFORE 30.05.2012. WE HAVE FILED THE APPEAL ON 8.6.2012. I N THE CIRCUMSTANCES, THERE IS DELAY IN FILING THE APPEAL BY 10 DAYS ONLY. 4. WE HAD RECEIVED THE ORDER OF COMMISSIONER OF INC OME TAX (APPEALS)-23 ON 30.03.2012 AND SENT THE SAID ORDER TO OUR ADVOCATE SHRI PRAKASH PANDIT IN THE THIRD WEEK OF APRIL 2012 FOR FILING THE APPEAL TO ITAT. WE WERE I NFORMED THAT THE MAKING PREPARATIONS FOR HIS FOREIGN TRIP SCHEDULED ON 04.05.2012. ON MAKING TELEPHONIC ENQUIRY IN OFFICE OF SHRI PRAKASH PANDIT IN THE FIRST WEEL OF JUNE. 2012, WE WE RE INFORMED THAT THE APPEAL COULD NOT BE FILED SINCE HE HAD NOT RETURNED TO INDIA. IN THE CI RCUMSTANCES, WE IMMEDIATELY APPROACHED HIS OFFICE AND COLLECTED ALL THE PAPERS INCLUDING T HE ORIGINAL CIT(A) ORDER AS ASSESSMENT ORDER, ETC, ON OR ABOUT 06.06.2012. 5. WE HANDED OVER THE PAPERS TO OUR NEW CHARTERED A CCOUNTANT SHRI ASHIT R. MEHTA ON 07.06.2012 TO FILE THE APPEAL WHEN WE WERE ASKED TO MAKE PAYMENT OF THE APPEAL FEES WHICH WAS PAID ON 07.06.2012 ITSELF. OUR SAID CHARTERED A CCOUNTANT AFTER COMPLETING THE WORK AND TAKING MY SIGNATURES ON THE DOCUMENTS IMMEDIATELY F ILED THE APPEAL ON 08.06.2012. 6. DUE TO THE AFORESAID CIRCUMSTANCES, WE HAVE NOT BEEN ABLE TO FILE THE APPEAL WITHIN THE STIPULATED PERIOD. WE THEREFORE MOST EARNESTLY REQUEST YOUR HONORS TO CONDONE THE DELAY IN FILING THE APPEAL AND WHICH IS NOT DUE TO ANY DE LIBERATE DEFAULT ON OUR PART. 7. THE DELAY IN FILING THE APPEAL IS NOT INTENTIONA L AND NO PREJUDICE WOULD BE CAUSED TO THE DEPARTMENT BUT HEAVY PREJUDICE WOULD BE CAUSE T O US. 8. THE SAID CONDONATION WOULD SAVE US FROM UNBEARAB LE HARDSHIP AND THERE WOULD BE NO LOSS TO REVENUE. IN VIEW OF THE SAID REASONS, THE LD.AR HAS PRAYED T HAT THE DELAY IN FILING THE APPEAL BEFORE THE TRIBUNAL MAY BE CONDONED. ON THE OTHER H AND, LD.DR HAS OPPOSED THE CONDONATION OF DELAY. AFTER CONSIDERING THE RELEVAN T RECORD, FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS THE REASONS EXPLAINED BY THE ASSESSEE, WE FIND THAT THE ASSESSEE HAS EXPLAINED SUFFICIENT REASONS FOR NOT F ILING THE APPEAL WITHIN TIME. IT IS A SETTLED LAW THAT WHILE CONDONING THE DELAY THE COUR T SHOULD TAKE A LENIENT VIEW. IT IS ALWAYS A QUESTION WHETHER THE EXPLANATION AND REASO NS FOR DELAY IS BONA FIDE OR MERELY A DEVISE TO COVER AN ULTERIOR PURPOSE SUCH A S LACHES ON THE PART OF THE LITIGANT OR AN ATTEMPT TO SAVE LIMITATION IN UNDER HAND WAY. WHEN IT IS FOUND ON RECORD THAT THE PARTY HAS NOT ACTED MALAFIDE BUT THE REASON EXP LAINED ARE FACTUALLY CORRECT, THEN THE COURT SHOULD BE LIBERAL IN CONSTRUING THE SUFFI CIENT CAUSE AND LEAN IN FAVOUR OF SUCH PARTY. WHENEVER SUBSTANTIAL JUSTICE AND TECHNI CAL CONSIDERATION ARE OPPOSED TO EACH OTHER, CAUSE OF SUBSTANTIAL JUSTICE HAS TO BE PREFERRED AND JUSTICE ORIENTED ITA NO. 4055/MUM/2012 M/S. DAWN INDIA ASSESSMENT YEAR: 2008-09 3 APPROACH HAS TO BE TAKEN BY THE COURT WHILE DECIDIN G THE MATTER FOR CONDONATION OF DELAY. IN VIEW OF THIS LEGAL AND FACTUAL POSITION, WE CONDONE THE DELAY IN FILING THE APPEAL BEFORE US AND TAKE UP THE MATTER FOR ADJUDIC ATION ON MERITS. 3. GROUNDS NO. 1 TO 4 ARE NOT PRESSED BY THE ASSESS EE AND HENCE THE SAME DO NOT REQUIRE ADJUDICATION. 4. IN GROUND NO. 5 & 6, THE ASSESSEE HAS AGITATED T HE DECISION OF THE LD.CIT(A) IN UPHOLDING THE ACTION OF THE AO IN APPLYING THE P ROVISIONS OF SECTION 194C OF THE ACT IN RESPECT OF A SUM OF RS.1,56,50,480/- BEING R EIMBURSABLE EXPENSES PAID TO CFS AND/OR CUSTODIANS ON BEHALF OF THE ASSESSEES CLIEN TS AND CONSEQUENT DISALLOWANCE OF THE SAME MADE U/S 40(A)(IA) OF THE ACT. 4.1 HAVING HEARD BOTH THE SIDES AND PERUSED THE MAT ERIAL ON RECORD, WE FIND THAT THE ISSUE IS RECURRING AND REPETITIVE IN NATURE AND THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR THE A.Y. 2007-08 IN ITA NO. 5941/MUM/2010, HAS HELD THAT SIMILAR SORT OF EXPENSES INCURRED ON BEHALF OF THE CLIENT, THE EXPE NSES GOT REIMBURSED WITHOUT ANY PROFIT ELEMENT EMBEDDED IN SUCH RECEIPTS. THEREFORE , THE TRIBUNAL DECIDED THAT THE DISALLOWANCE CAN ONLY GET TRIGGERED IF THE RECEIPT OF ANY PAYMENT IS ROUTED THROUGH THE BOOKS AND ALSO THE RECEIPT HAS SOME COMPONENT O F PROFIT EMBEDDED IN IT. RESULTANTLY, THE TRIBUNAL DELETED THE DISALLOWANCE CONFIRMED/MADE BY THE LD.CIT(A) /AO. FOLLOWING THE SAID ORDER OF THE TRIBUNAL, IN T HE ABSENCE OF ANY DISTINGUISHING FACT BROUGHT BY THE REVENUE, THE DISALLOWANCES CONF IRMED/MADE BY THE LD.CIT(A)/AO STANDS DELETED. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 27 TH DAY OF AUGUST, 2014. SD/- SD/- (RAJENDRA) (DR. S.T.M. PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 28.08.2014. *SRIVASTAVA ITA NO. 4055/MUM/2012 M/S. DAWN INDIA ASSESSMENT YEAR: 2008-09 4 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR D BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.