A. LATEEF & BROTHERS, MUMBAI V. ITO 19(1)(3), MUMBAI

ITA 5684/MUM/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0027 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 9 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 04-04-2017
• Assessment Year: 2002-2003
• Appeal Filed On: 10-09-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V JUSTIN
• Keywords: Business expenditure
• Section: 43B; 40A(3); 143(3); 263

Judgement Text

P A G E | 1 ITA NOS. 5684,5685 &5686 A.YS.2002 - 03, 2003 - 04 & 2005 - 06 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI G.S. PANNU , AM AND SHRI RAVISH SOOD, JM ./ I.T.A(S). NO.5684, 5685 & 5686/MUM/2013 ( / ASSESSMENT YEAR: 2002 - 03, 2003 - 04 & 200 5 - 06 ) M/S. A. LATEEF & BROTHERS 638, GORI HOUSE, TPS - III 8 TH ROAD, KHAR (W), MUMBAI - 400 052. / VS. INCOME TAX OFFICER, WARD 19(1) - 3, PIRAMAL CHAMBERS, PAREL, MUMBAI ./ ./ PAN/GIR NO. AABFA7192A ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI HARIDAS BHAT / RESPONDENT BY : SHRI V. JUSTIN / DATE OF HEARING : 28 /06/2017 / DATE OF PRONOUNCEMENT : 30 /06/2017 / O R D E R PER RAVISH SOOD, JUDICIAL MEMBER: THE PRESENT SET OF THREE APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE RESPECTIVE ORDERS OF THE CIT(A) - 3 0 , MUMBAI, DATED. 16.03.2011, 14 .03. 2011 AND 21.12.2011, PERTAINING TO P A G E | 2 ITA NOS. 5684,5685 &5686 A.YS.2002 - 03, 2003 - 04 & 2005 - 06 A.Y(S): 2002 - 03 , 200 3 - 04 AND 2005 - 06 , RESPECTIVELY, WHICH IN ITSELF ARISES FROM THE RESPECTIVE ORDERS PASSED BY THE ASSESSING OFFICER U/S 143 (3) OF THE INCOME TAX ACT 1961 (FOR SHORT ACT) . THAT AS COMM ON ISSUES ARE INVOLVED IN ALL THE THREE APPEALS, THEREFORE, FOR THE SAKE OF CONVENIENCE THEY ARE CLUBBED AND DISPOSED OF BY WAY OF A CONSOLIDATED ORDER. WE HEREIN FIRST TAKE UP THE APPEAL FOR A.Y. 2002 - 03, MARKED AS ITA NO. 5684/MUM/2013 , WHEREIN THE ASSESSEE ASSAILING THE ORDER OF THE CIT(A) HAD RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1 . THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND JUDICIAL PRONOUNCEMENTS, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 30, MUMBAI WAS NOT JUSTIFIED IN DISMISSIN G THE APPEAL FI LED BY THE APPELLANT BEFORE HIM. 2. THE LEARNED CIT (A) - 30, MUMBAI HAS NOT CONSIDERED THE FACTS AND CIRCUMSTANCES WHILE ADJUDICATING THE ISSUE RELATED TO NON ATTENDANCE OF THE ASSESSEE AS ALLEGED BY THE ASSESSING OFFICER IN THE ORDER PASSED U/S 143(3) OF THE ACT. 3. THAT THE LEARNED CIT(A) - 30, MUMBAI WAS NOT JUSTIFIED TO CONFIRM TH E DISALLOWANCES MADE OF FOLLOWING BUSINESS EXPENDITURE WHICH WERE INCURRED WHOLLY AND EXCLUSIVELY FOR SMOOTH RUNNING OF THE BUSINESS : (A) 1/5 TH OF CA R EXPENSES CONSIDERING THEM RS. 38,044/ - AS PERSONAL IN NATURE (B) TELEPHONE EXPENSES CONSIDERING THEM RS . 19,422/ - PERSONAL IN NATURE (C) DONATION RS.3,000/ - (D) CREDIT CARD EXPENSES RS.34 716/ 4. THAT THE LEARNED CIT ( A) IS ERRED ON FACTS, CIRCUMSTANCES OF THE CASE AND IN LAW IN CONFIRMING THE ADDITION OF RS. 52,781/ - I.E. 20% OF THE CASH PAYMENT MADE EXCEEDING RS. 20,000/ - TOWARDS OIL & FUEL EXPENSES WITHOUT CONSIDERING THE NATURE, LOCATION OF VARIOUS SITES/PLACE OF BUS INESS OF THE ASSESSEE AND LEGAL PROVISIONS UNDER RULE 6DD (G) AND PRONOUNCEMENTS BY THE COURTS. P A G E | 3 ITA NOS. 5684,5685 &5686 A.YS.2002 - 03, 2003 - 04 & 2005 - 06 5. THE CONFIRMATION OF AD - HOC ADDITION TOWARDS LABOUR CHARGES OF RS. 5 LAKH MADE BY THE A SSESSING OFFICER BY LEARNED CIT (A) - 30, MUMBAI IS NOT JUST IFIED IN AS MUCH AS LEARNED CIT (A) HIMSELF HAS ACCEPTED THAT ADDITION IS MADE IN AN AD - HOC MANNER. FURTHER LEARNED CIT (A) WAS ERRED IN CONSIDERING THE CIRCUMSTANCES OF THE CASE I.E. PLACES WHERE CONTRACTS WERE EXECUTED AND THE FACT THAT APPLICANT IS MAINTAINING AUDITE D BOOKS OF ACCOUNTS AND ALL THE E XPENSES DEBITED ARE VOUCHED AND VERIFIED. 6. LEARNED CIT(A) - 30, MUMBAI WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS. 4,89,071/ - BY COMPUTING PROFIT AND GAINS OUT OF CONTRACTUAL RECEIPT ON PRESUMPTIVE BASIS WITHOUT CONSIDERING T HE FACT THAT TOTAL TURNOVER IN TH E YEAR EXCEEDS STIPULATED LIMITS AND THE ASSESSEE IS MAINTAINING DULY AUDITED BOOKS OF ACCOUNTS. 7. IT IS CONTENDED THAT LEARNED CIT(A) - 30, MUMBAI IS NOT JUSTIFIED IN CONFIRMING ADDITIONS MADE BY THE ASSESSING OFFICER RESULTING IN CREATION OF HUGE AND ILLEGAL DEMAND BY WAY OF TAXES AND CHARGING OF INTEREST WHICH DESERVES TO BE QUASHED AND DURING THE PEND ENCY OF THE APPELLATE PROCEEDINGS THE RECOVERY OF THE SAME MAY KINDLY BE STAYED. 8. THAT THE APPELLANT CRAVES LEAVE NOT ONLY TO ADD, AMEND, ALTER AND OR MORE GROUNDS OF APPEAL BU T TO FURNISH FACTS, INFORMATION, DETAILS, EVIDENCES ETC. AS MAY BE NECESSARY TO SUBSTANTIATE THE GROUNDS OF APPEAL AND THE STA TEMENT OF FACTS. IT IS CONTENDED THAT THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO ONE ANOTHER. 9. IT IS CONTENDED THAT DELAY IN FILING O F THE PRESENT APPEAL MA Y KINDLY BE CONDONED IN VIEW OF THE CIRCUMSTANCES SUBMITTED IN A N APPLICATION ACCOMPANIED BY AN AFFIDAVIT ATTACHED WITH THI S APPELLATE MEMO. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE FIRM HAD FILED ITS RETURN OF INCOME ON 28.10.2002 DECLARING TOTAL INCOME OF RS.2,96,834/ - , WHICH WAS PROCESSED AS SUCH U/S. 143(1) OF THE ACT . THE CASE OF THE ASSESSEE WAS THEREAFTER TAKEN UP FOR SCRUTINY ASSESSMENT U/S 143(2). THE A.O DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS INTERALIA M ADE THE FOLLOWING DISALLOWANCE S / ADDITIONS IN THE HANDS OF THE ASSESSEE FIRM : - P A G E | 4 ITA NOS. 5684,5685 &5686 A.YS.2002 - 03, 2003 - 04 & 2005 - 06 SR. NO. PARTICULARS AMOUNT 1 1/5 OF CAR EXPENSES RS.38,044/ - 2 OUT OF TELEPHONE EXPENSES RS.19,422/ - 3 DONATION RS. 3,000/ - 4 CREDIT CARD EXPENSES RS.35,716/ - 5 DISALLOWANCE U/S. 40A(3) RS.52,781/ - 6 ADDITION TOWARDS ADHOC LABOUR CHARGES RS.5,00,000/ - 7 ADDITION TOWARDS PROFIT RELATABLE TO SUPPRESSED CONTRACTUAL RECEIPTS RS.4,89,701/ - THE A.O THEREAFTER DELIBERATING ON CERTAIN OTHER ISSUES WHICH THOUGH ARE NOT RELEVANT TO THE PRESENT APPEAL , THEREIN ASSESSED THE INC OME OF THE ASSESSEE FIRM AT RS. 14,34,498/ - , VIDE HIS ORDER PASSED U/S 143(3) , DATED 30.03.2005 . 3. THE ASSESSEE ASSAILED THE ASSESSMENT FRAMED BY THE A.O IN APPEAL BEFORE THE CIT(A) . THE CIT(A) AFTER DELIBERATING ON THE CONTENTIONS OF THE ASSESSEE SO RAISED BEFORE HIM , WAS HOWEVER NOT PERSUADED TO SUBSCRIBE TO THE SAME AND DISMISSED THE APPEAL. 4. THE ASSESSEE BEING AGGRIEVED WITH THE ORDER OF THE CIT(A) , HAD THEREIN CARRIED THE MATTER IN APPEAL BEFORE US. THAT AT THE VERY OUTSET IT WAS OBSERVED THAT T HE PRESENT APPEAL FILED BY THE ASSESSEE BEFORE US INVOLVED A DELAY OF 849 DAYS. THAT IT WAS SUBMITTED BY THE LD. AUTHORIZED REPRESENTATIVE (FOR SHORT A.R.) FOR THE ASSESSEE THAT THE DELAY IN FILING OF THE PRESENT APPEAL HAD CREPT IN ON ACCOUNT OF CERTAIN C OMPELLING REASONS WHICH WERE BEYOND THE CONTROL OF THE ASSESSEE. THE LD. A.R SUBMITTED THAT AS THE ONLY WORKING PARTNER OF THE ASSESSEE FIRM, VIZ. SH . ABDUL WAHID KHATRI WAS BEREAVED OF HIS FAMILY MEMBERS IN QUICK SUCCESSION, HAD AN AILING SPOUSE TO ATTEND TO, AS WELL AS WAS HIMSELF NOT KEEPING GOOD HEALTH AND WAS UNDERGOING TREATMENT FOR THE LAST MANY YEARS, THEREFORE , THE BUSINESS OF THE ASSESSEE FIRM HAD REMAINED UNATTENDED AND THE APPEAL OF THE ASSESSEE FIRM COULD NOT BE FILED BEFORE THE TRIBUNAL WITHIN THE STIPULATED TIME PERIOD. THE LD. A.R. P A G E | 5 ITA NOS. 5684,5685 &5686 A.YS.2002 - 03, 2003 - 04 & 2005 - 06 IN ORDER TO DRIVE HOME HIS AFORESAID CONTENTION , THEREIN TOOK US THROUGH THE A FFIDAVIT OF SHRI ABDUL WAHID KHATRI (SUPRA), W HEREIN THE AFORESAID FACTS AS WERE AVERRED BEFORE US BY THE LD. A.R WERE FOUND NARRATED . P ER CONTRA, THE LD. DEPARTMENT AL R EPRESENTATIVE (FOR SHORT D.R.) SUBMITTED THAT AS THE FACTS AS REGARDS THE BEREAVEMENTS OF THE FAMILY MEMBERS OF THE SH. ABDUL WAHID KHATRI (SUPRA), AS WELL AS THE ILL HEALTH OF HIS SPOUSE, WERE MUCH ANTERIOR TO THE PERIOD RELEVANT FOR FILING OF THE APPEAL BEFORE THE TRIBUNAL, THEREFORE , THE SAME COULD NOT JUSTIFIABLY EXPLAIN THE DELAY IN FILING OF THE APPEAL BY THE ASSESSEE FIRM BEFORE THE TRIBUNAL. IT WAS FURTHER AVERRED BY THE LD. A.R THAT NOT ONLY THE DELAY OF 849 DAYS INVOLVED IN FILING OF THE PRESENT APPEAL WAS INORDINATE , BUT RATHER THE ASSESSEE HAD FAILED TO COME FORTH WITH ANY PLAUSIBLE EXPLANATION AS REGARDS THE SAME . IT WAS THUS SUBMITTED BY THE LD. D.R THAT AS THE APPEAL OF THE ASSESSEE FIRM WAS FILED MUCH BEYOND THE STIPULATED DATE, THEREFORE , THE SAME WAS LIABLE TO BE DISMISSED IN LIMINE ON THE SAID COUNT ITSELF. 5. WE HAVE HEARD THE AUTHORIZED REPRESENTATIVES FOR BOTH THE PARTIES AND PERUSED THE MATERIAL MADE AVAILABLE ON RECORD IN RESPECT OF THE DELAY IN FILING OF THE APPEAL BY THE ASSESSEE BEFORE US. WE THOUGH ARE NO T OBLIVIOUS OF THE FACT THAT TIME AND AGAIN IT HAD BEEN EMPHASIZED BY THE HONBLE APEX COURT THAT IN ORDER TO FACILITATE DOING OF EVEN HANDED JUSTICE ON MERITS, A PRAGMATIC AND A LIB ERAL APPROACH SHOULD BE ADOPTED WHILE EXERCISING THE DISCRETION U/S 5 OF THE LIMITAT ION ACT , B UT THEN TO FACILITATE SUCH AN APPROACH, THE BARE MINIMUM WHICH IS EXPECTED FROM THE APPELLANT IS A PLAUSIBLE EXPLANATION AS REGARDS THE DELAY IN VOLVED IN FILING OF THE APPEAL. WE FIND THAT IN THE PRESENT CASE THE PARTNER OF THE ASSESSEE FIRM, VIZ. SH. ABDUL WAHID KHATRI WAS BEREAVED OF HIS FAMILY MEMBERS AND HIS SPOUSE WAS TAKEN UNWELL DURING THE PERIOD FALLING BETWEEN MAY, 2007 TO OCTOBER, 2010, WHICH WAS MUCH ANTERIOR TO THE PERIOD DURING WHICH P A G E | 6 ITA NOS. 5684,5685 &5686 A.YS.2002 - 03, 2003 - 04 & 2005 - 06 THE ASSESSEE WAS REQUIRE D TO FILE AN APPEAL BEFORE THE TRIBUNAL , I.E MAY, 2011, AND THUS THE SAME BY NO MEANS WOULD JUSTIFIABLY EXPLAIN THE INORDINATE DELAY INVOLVED IN FILING OF THE PRESENT APPEAL BY THE ASSESSEE F IRM . WE ARE ALSO UNABLE TO COME TO TERMS WITH THE CLAIM OF THE ASSESSEE THAT THE ILL HEALTH SUFFERED BY SH . ABDUL WAHID KHATRI (SUPRA) IN THE YEAR 2005 AND 2010 , AND THEREAFTER IN NOVEMBER , 2014 , HAD A BEARING ON THE DELAY INVOLVED IN FILING OF THE PRESENT APPEAL . WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE EXPLANATION OF THE ASSESSEE AS REGARDS THE INORDINATE DELAY OF 849 DAYS INVOLVED IN FILING OF THE APPEAL, AND ARE OF THE CONSIDERED VIEW THAT THE EXPLANATION OF THE ASSESSEE AS REGARDS THE DELAY IN F ILING OF THE PRESENT APPEAL BY THE ASSESSEE FIRM , BEING DEVOID OF ANY FORCE OF REASONING AND LOGIC, THUS DOES NOT MERIT ACCEPATNCE . 6. WE ARE OF THE CONSIDERED VIEW THAT IT CAN SAFELY BE CONCLUDED THAT THE DELAY IN FILING OF THE PRESENT APPEAL BEFORE US HAD OCCASIONED ON ACCOUNT OF LAPSES AND LACHES ON THE PART OF THE ASSESSEE. WE THUS IN THE BACKDROP OF OUR AFORESAID OBSERVATIONS ARE UNABLE TO PERSUADE OURSELVES TO ACCEPT THE EXPLANATION OF THE ASSESSEE, WH ICH WE FIND DOES NOT HAVE ANY NEXUS WITH THE DELAY INVOLVED IN FILING OF THE PRESENT APPEAL . WE THUS IN THE ABSENCE OF ANY PLAUSIBLE EXPLANATION FORTHCOMING ON THE PART OF THE ASSESSEE TO EXPLAIN THE DELAY INVOLVED IN FILING OF THE PRESENT APPEAL, THUS DEC LINE TO CONDONE THE DELAY OF 849 DAYS IN FILING OF THE PRESENT APPEAL BY THE ASSESSEE . T H E APPEAL OF THE ASSESSEE THUS HAVING BEEN FILED MUCH BEYOND THE STIPULATED DATE, IN THE ABSENCE OF ANY PLAUSIBLE EXPLANATION JUSTIFYING THE DELAY INVOLVED THEREIN, IS THUS HELD AS NOT MAINTAINABLE AND IS DISMISSED IN LIMINE. P A G E | 7 ITA NOS. 5684,5685 &5686 A.YS.2002 - 03, 2003 - 04 & 2005 - 06 ITA NO. 5685/MUM/2013 A.Y. 2003 - 04 7. WE SHALL NOW TAKE UP THE APPEAL OF THE ASSESSEE FOR THE A.Y. 2003 - 04. THE ASSESSEE HAD ASSAILED THE ORDER OF THE CIT(A) BY RAISING THE FOLLOWING GROUNDS OF APPEAL: - 1 . THAT ON FACTS, CIRCUMSTANCES OF THE CASE AND JUDICIAL PRONOUNCEMENTS, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 30, MUMBAI WAS NOT JUSTIFIED IN DISMISSING THE APPEAL FILED BY THE APPELLANT BEFORE HIM BY TAKING EX - PARTE DECISION. 2. IT IS THE CIRCUMSTANCES OF THE APPELLANT THAT IT COULD NOT FILE THE APPEAL BEFORE LD. CIT (A) - 30, MUMBAI IN TIME (MARGINAL DELAY OF ONE MONTH) IN AS MUCH AS ONE OF THE PARTNERS SH. ABDUL LATEEF KHATRI SUFFERED A BRAIN STROKE ON 02.09.2005 AND HAS NOT COME OUT OF IT EVEN TODAY. ASSESSMENT FOR THE YEAR WAS COMPLETED BY THE DEPARTMENT ON 23.01.2006 AND AGGRIEVED WITH THE ADDITIONS; THE APPELLANT FILED ITS APPEAL ON 12.04.2006. IT IS BECAUSE OF THE CIRCUMSTANCES THAT THE APPELLANT WAS PREVENTED BY SUFFICIENT CA USE IN FILING OF THE APPEAL LATE BEFORE LD. CIT(A), MUMBAI. 3. THAT THE LEARNED CIT(A) - 30, MUMBAI HAS NOT CONSIDERED THE FACTS AND CIRCUMSTANCES OF THE CASE WHILE ADJUDICATING THE ISSUE RELATED TO NON - ATTENDANCE OF THE ASSESSEE AS ALLEGED BY THE ASSESSING OFFICER IN THE ORDER PASSED U/S 143(3) OF THE ACT. THE ASSESSING OFFICER ERRED IN MENTIONING THAT ON MANY OCCASION NOBODY ATTENDED OR THERE WAS NO COMPLIANCE BY THE ASSESSEE/ITS AUTHORIZED REPRESENTATIVE BY TOTALLY IGNORING THE ATTENDANCE OF THE ASSESSEE/I TS AUTHORIZED REPRESENTATIVE AND MORE PARTICULARLY THE FACTUAL CIRCUMSTANCES RESPONSIBLE FOR DEVIATION IN ATTENDING THE MATTER. 4. THAT THE LEARNED CIT (A) IS ERRED ON FACTS OF THE CASE IN CONFIRMING, EX - PARTE, THE ADDITION MADE BY THE ASSESSING OFFICER OF RS. 9,76,506/ - TOWARDS UNDISCLOSED PROFIT WITHOUT CONSIDERING THE CHANGE IN NATURE OF BUSINESS I.E. IN THE YEAR APPELLANT HAS UNDERTAKEN MAJORITY OF CONTRACTS AT ITS OWN AND NOT AS A SUB CONTRACTOR. 5. CONFIRMATION OF DISALLOWANCE MADE BY THE A.O. ON ACCOU NT OF LABOUR CHARGES ON AN AD - HOC BASIS, HAVING NO COGENT MATERIAL, IS NOT JUSTIFIED IN AS MUCH AS THE EXPENDITURE INCURRED TOWARDS LABOUR CHARGES IS AS PER THE REQUIREMENT OF P A G E | 8 ITA NOS. 5684,5685 &5686 A.YS.2002 - 03, 2003 - 04 & 2005 - 06 THE BUSINESS AND IN CONSONANCE WITH THE WORK EXECUTED. 6. THAT THE LEARNED CIT(A) - 30, MUMBAI WAS NOT JUSTIFIED IN CONFIRMING ADDITION OF RS. 2,09,841/ - TOWARDS WORKS CONTRACT TAX WHICH IS DIRECTLY DEDUCTED FROM THE R A BILLS WHERE THE COPY OF THE R A BILLS FILED IS ADEQUATE PROOF BY ITSELF. AS SUCH, APPLICATION OF SECTION 43B IS NOT WARRANTED BY THE ASSESSING OFFICER. 7. DISALLOWANCE OF RS. 26,129/ - AND LATER CONFIRMED BY LD. CIT(A) ON ACCOUNT OF TRAVELLING/ CONVEYANCE IS NOT JUSTIFIED IN AS MUCH AS THE SAME WERE INCURRED WHOLLY AND EXCLUSIVELY FOR SMOOTH RUNNING OF THE BUSINESS. 8. DISALLOWANCE OF MISC. EXPENSES RA BILLS AMOUNTING TO RS. 5,66,481/ - AND ITS CONFIRMATION BY LD. CIT(A) IS NOT JUSTIFIED AS THESE EXPENSES WERE INCURRED WHOLLY AND EXCLUSIVELY FOR BUSINESS AND FULLY VOUCHABLE AND HENCE LEGITIMATE BUSINESS EXPE NSES. 9. IT IS CONTENDED THAT LEARNED CIT(A) - 30, MUMBAI IS NOT JUSTIFIED IN CONFIRMING ADDITIONS MADE BY THE ASSESSING OFFICER RESULTING IN CREATION OF HUGE AND ILLEGAL DEMAND BY WAY OF TAXES AND CHARGING OF INTEREST WHICH DESERVES TO BE QUASHED AND DURING TH E PENDING OF THE APPELLATE PROCEEDINGS THE RECOVERY OF THE SAME MAY PLEASE BE STAYED. 10. THAT THE APPELLANT CRAVE S LEAVE NOT ONLY TO ADD, AMEND, ALTER AND. OR MORE GROUNDS OF APPEAL BUT TO FURNISH FACTS, INFORMATION, DETAILS, EVIDENCES ETC. AS MAY BE NECESSARY TO SUBSTANTIATE THE GROUNDS OF APPEAL AND THE STATEMENT OF FACTS. IT IS CONTENDED THAT THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO ONE ANOTHER. 11. IT IS CONTENDED THAT DELAY IN FILING OF THE PRESENT APPEAL MAY KINDLY BE CONDONED IN VIEW OF THE C IRCUMSTANCES SUBMITTED IN THE AFFIDAVIT AT TACHED WITH THIS APPELLATE MEMO. 8. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE FIRM HAD FILED ITS RETURN OF INCOME ON 01.12.2003 DECLARING TOTAL INCOME OF RS.2,66,016/ - , WHICH WAS PROCESSED AS SUCH U/S. 143(1) OF THE ACT . THE CASE OF THE ASSESSEE FIRM WAS THEREAFTER TAKEN UP FOR SCRUTINY ASSESSMENT U/S. 143(2). THE A.O AFTER DELIBERATING ON CERTAIN ISSUES , THEREIN INTERALIA MADE THE FOLLOWING ADDITIONS /DISALLOWANCES IN THE HANDS OF THE ASSESSEE: - P A G E | 9 ITA NOS. 5684,5685 &5686 A.YS.2002 - 03, 2003 - 04 & 2005 - 06 SR. NO. PARTICULARS AMOUNT 1 ADHOC ADDITION OUT OF LABOUR CHARGES RS.5,00,000/ - 2 ADDITION TOWARDS PRESUMPTIVE PROFIT FROM CONTRACT WORK RS.9,76,505/ - 3 ADDITION OUT OF TRAVELLING CONVENIENCE EXPENSES RS.26,129/ - 4 ADDITION OUT OF MISC. EXPENSES RS.5,66,481/ - 5 DISALLOWANCE U/S. 43B RS.209,841/ - 9. THE ASSESSEE BEING AGGRIEVE D WITH THE ORDER PASSED BY THE A.O , THEREIN CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A), WHICH HOWEVER WAS DISMISSED . 10. THE ASSESSEE BEING AGGRIEVED WITH THE ORDER OF THE CIT(A) HAD THEREIN CARRIED THE MATTER IN APPEAL BEFORE US. WE FIND THAT THE PRESENT APPEAL FILED BY THE ASSESSEE INVOLVE S A DELAY OF 849 DAYS. WE FIND THAT THE E XPLANATION OF THE ASSESSEE IN RESPECT OF THE DELAY IN FILING OF THE PRESENT APPEAL , REMAINS THE SAME AS HAD BEEN OFFERED FOR EXPLAINING THE DELAY INVOLVED IN FILING OF HIS APPEAL BEFORE US FOR A.Y 2002 - 03, MARKED AS ITA NO. 5684/MUM/2013. THAT IN THE BACKDROP OF THE AFORESAID FACT S, OUR OBSERVATIONS RECORDED WHILE DISPOSING OF THE APPEAL OF THE ASSESSEE FIRM FOR A.Y. 2002 - 03 IN ITA NO. 5684/MUM/2013 SHALL APPLY MUTATIS MUTANDIS IN THE PRESENT APPEAL. WE THUS ADOPTING THE OBSERVATIONS AND REASONING ARRIVED AT BY US WHILE DISMISSING TH E APPEAL OF THE ASSESSEE FOR A.Y. 2002 - 03 IN LIMINE, THUS DECLINE TO CONDONE THE DELAY OF 849 DAYS IN FILING OF THE PRESENT APPEAL BY THE ASSESSEE FIRM . THE APPEAL OF THE ASSESSEE THUS P A G E | 10 ITA NOS. 5684,5685 &5686 A.YS.2002 - 03, 2003 - 04 & 2005 - 06 HAVING BEEN FILED MUCH BEYOND THE STIPULATED DATE, IN THE ABSENCE OF AN Y PLAUSIBLE EXPLANATION JUSTIFYING THE DELAY INVOLVED THEREIN, IS THUS HELD AS NOT MAINTAINABLE AND IS DISMISSED IN LIMINE. ITA NO. 5686/MUM/2013 A.Y. 2005 - 06 11. WE SHALL NOW ADVERT TO THE APPEAL OF THE ASSESSEE FIRM FOR THE A.Y. 2005 - 06 . THE ASSESSEE HAD ASSAILED THE ORDER OF THE CIT(A) BY RAISING THE FOLLOWING GROUNDS OF APPEAL: - 1 . THAT ON FACTS, CIRCUMSTANCES OF CASE/NATURE & PLACE OF BUSINESS AND JUDICIAL PRONOUNCEMENT, THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) - 30, MUMBAI WAS NOT JUSTIFIED IN DISMISSING THE APPEAL FILED BY THE APPELLANT BEFORE HIM. 2. THAT THE LEARNED CIT(A) - 30, MUMBAI WAS ERRED IN CONFIRMING THE DISALLOWANCE MADE BY A.O. U/S 40(A)(IA) OF THE ACT IGNORING THE PLACE AND NATURE OF THE BUSINESS IN WHICH APPELLANT IS ENGAGED. 3. IT IS CONTENDED THAT LEARNED CIT(A) - 30, MUMBAI IS NOT JUSTIFIED IN CONFIRMING ADDITIONS MADE BY THE ASSESSING OFFICER RESULTING IN CREATION OF HUGE AND ILLEGAL DEMAND BY WAY OF TAXES AND CHARGING OF INTEREST WHICH DESERVES TO BE QUASHED AND DURING THE PENDING OF THE APPELLATE PROCEEDINGS THE RECOVERY OF THE SAME MAY PLEASE BE STAYED. 4. THAT THE APPELLANT CRAVES LEAVE NOT ONLY TO ADD, AMEND, ALTER AND OR MORE GROUNDS OF APPEAL BUT TO FUR NISH FACTS, INFORMATION, DETA ILS, EVIDENCES ETC. AS MAY BE NECESSARY TO SUBSTANTIATE THE OF APPEAL AND THE STATEMENT OF FACTS. IT IS CONTENDED THAT THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO ONE ANOTHER. 5. IT IS CONTENDED THAT DELAY IN FILING OF THE PRESENT APPEAL MAY KINDLY BE CONDONED IN VIEW OF THE CIRCUMSTANCES SUBMITTED IN THE AFFIDAVIT AT TACHED WITH THIS APPELLATE MEMO. 12. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE FIRM HAD FILED IT S RETURN OF INCOME FOR A.Y 2005 - 06 ON 29.10.2005 , P A G E | 11 ITA NOS. 5684,5685 &5686 A.YS.2002 - 03, 2003 - 04 & 2005 - 06 DECLARING TOTAL INCOME AT RS.1,70,134/ - . THE ASSESSMENT IN THE CASE OF THE ASSESSEE WAS F RAMED U/S 143(3) ON 24.12.2007, DETERMINING THE LATTERS TOTAL INCOME AT RS.2,27,130/ - . THAT SUBSEQUENT THERETO PROCEEDINGS U/S. 263 WERE INITIATED BY THE CIT - 19, MUMBAI, AND THE ASSESSMENT FRAMED BY THE A.O WAS SET ASIDE WITH A DIRECTION TO EXAMINE AFRESH THE EXPENSES CLAIMED BY THE ASSESSEE FIRM TO HAVE BEEN INCURRED ON ACCOUNT OF TRANSPOR TATION, LABOUR CHARGES AND CONTRACT RECEIPTS . THE A.O PURSUANT TO THE AFORESAID DIRECTIONS OF THE CIT(A) , THEREIN PASSED AN ORDER U/S 143(3) R.W.S. 263, DATED 30.12.2010, WHEREIN THE FOLLOWING EXPENSES WERE DISALLOWED BY HIM U/S. 40(A )(IA), AS UNDER: - SR. NO. PARTICULARS AMOUNT 1 CART AGE AND TRANSPORTATION RS.17,25,076/ - 2 LABOUR CHARGES RS.10,76,642/ - TOTAL RS.28,01,718 13. THE ASSESSEE BEING AGGRIEVE D WITH THE ORDER OF THE A.O , THEREIN CARRIED THE MATTER IN APPEAL BEFORE THE CIT( A), WHICH HOWEVER WAS DISMISSED VIDE THE LATTERS ORDER DATED 21.12.2011. 14. THE ASSESSEE BEING AGGRIEVED WITH THE ORDER OF THE CIT( A) HAD THEREIN CARRIED THE MATTER IN APPEAL BEFORE US. WE FIND THAT THE PRESENT APPEAL FILED BY THE ASSESSEE INVOLVES A DELAY OF 849 DAYS. WE FIND THAT THE EXPLANATION OF THE ASSESSEE IN RESPECT OF THE DELAY IN FILING OF THE PRESENT APPEAL, REMAINS THE SAM E AS HAD BEEN OFFERED FOR EXPLAINING THE DELAY INVOLVED IN FILING OF HIS APPEAL BEFORE US FOR A.Y 2002 - 03, MARKED AS ITA NO. 5684/MUM/2013. THAT IN THE BACKDROP OF THE AFORESAID FACTS, OUR OBSERVATIONS RECORDED WHILE DISPOSING OF THE APPEAL OF THE ASSESSEE FIRM FOR A.Y. 2002 - 03 IN ITA NO. 5684/MUM/2013 SHALL APPLY MUTATIS MUTANDIS IN THE PRESENT APPEAL. P A G E | 12 ITA NOS. 5684,5685 &5686 A.YS.2002 - 03, 2003 - 04 & 2005 - 06 WE THUS ADOPTING THE OBSERVATIONS AND REASONING ARRIVED AT BY US WHILE DISMISSING THE APPEAL OF THE ASSESSEE FOR A.Y. 2002 - 03 IN LIMINE, THUS DECLINE TO CON DONE THE DELAY OF 849 DAYS IN FILING OF THE PRESENT APPEAL BY THE ASSESSEE FIRM. THE APPEAL OF THE ASSESSEE THUS HAVING BEEN FILED MUCH BEYOND THE STIPULATED DATE, IN THE ABSENCE OF ANY PLAUSIBLE EXPLANATION JUSTIFYING THE DELAY INVOLVED THEREIN, IS THUS H ELD AS NOT MAINTAINABLE AND IS DISMISSED IN LIMINE. 15. THE APPEALS OF THE ASSESSEE, MARKED AS ITA NO. 5684/MUM/2013 FOR A.Y. 2002 - 03, ITA NO. 5685/MUM/2013 FOR A.Y. 2003 - 04 AND ITA NO. 5686/MUM/2013 FOR A.Y. 2005 - 06, ARE DISMISSED IN LIMINE. ORDER PRON OUNCED IN THE OPEN COURT ON 30 . 06.2017 SD/ - SD/ - (G.S. PANNU) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; 30 .06.2017 PS. ROHIT KUMAR . P A G E | 13 ITA NOS. 5684,5685 &5686 A.YS.2002 - 03, 2003 - 04 & 2005 - 06 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI