MULTIPACK SYSTEMS P.LTD, MUMBAI V. DCIT CIR 2(2), MUMBAI

ITA 6417/MUM/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7818 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-03-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: J
• Next Hearing Date: 22-02-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 11-12-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PRADIP HEDAOO
• Assessee Lawyers: DEVENDRA I SHRIMANKAR
• Section: 80HHC; 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'J' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER ITA NO. 6417/MUM/2009 (ASSESSMENT YEAR: 2002-03) M/S. MULTIPACK SYSTEMS P. LTD. DCIT, CIRCLE 2(2) ROHIT CHAMBERS, JANMABHOOMI AAYAKAR BHAVAN, M.K. RO AD MART, FORT, MUMBAI 400001 VS. MUMBAI 400020 PAN - AAACM 3013 E APPELLANT RESPONDENT APPELLANT BY: SHRI DEVENDRA I. SHRIMANKAR RESPONDENT BY: SHRI PRADIP HEDAOO O R D E R PER B. RAMAKOTAIAH, A.M. THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER OF THE CIT(A)- II, MUMBAI DATED 18.08.2009 FOR A.Y. 2002-03. 2. ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) ERRED IN RESTRICTING DEDUCTION U/S. 80HHC AND NOT GRANTING F ULL DEDUCTION AT RS.72,94,632/- CLAIMED BY YOUR APPELLANTS. YOUR APPELLANTS SUBMIT THAT DEDUCTION U/S. 80HHC OUGHT TO BE ALLOWE D AS CLAIMED BY YOUR APPELLANTS. IN PARTICULAR THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) E RRED IN REDUCING THE DEDUCTION U/S. 80HHC BY REDUCING PROFI T ELIGIBLE FOR DEDUCTION U/S. 80IB FROM THE PROFITS OF THE BUSINES S FOR COMPUTING DEDUCTION U/S. 80HHC IGNORING THE FACT TH AT THE PROVISIONS OF SECTION 80-HHC IS A SEPARATE AND INDE PENDENT CODE IN ITSELF. IT IS SUBMITTED THAT PROFITS OF THE BUSINESS OUGHT NOT TO HAVE BEEN REDUCED BY THE PROFITS ELIGIBLE FO R DEDUCTION U/S. 80IB. YOUR APPELLANT SUBMITS THAT THE PROFIT OF SILVASSA UNIT OUGHT TO HAVE BEEN INCLUDED IN THE COMPUTATION OF PROFITS OF BUSINESS OF CALCULATING DEDUCTION U/S. 80HHC. YOUR APPELLANTS S UBMIT THAT THE BUSINESS PROFIT FOR THE YEAR SHOULD BE TAKEN AT RS.6,68,60,884/- AND COMPUTING DEDUCTION U/S. 80HHC ACCORDINGLY. ITA NO. 6417/MUM/2009 M/S. MULTIPACK SYSTEMS P. LTD. 2 2. WITHOUT PREJUDICE TO ABOVE, YOUR APPELLANT SUBMI TS THAT IN CASE THE PROFIT OF SILVASSA UNIT, ELIGIBLE FOR DEDUCTION U/S. 80IB, IS EXCLUDED FROM THE COMPUTATION OF PROFIT OF THE BUSI NESS THEN THE TURNOVER OF SILVASSA UNIT SHOULD ALSO BE EXCLUDED F ROM THE COMPUTATION OF TOTAL TURNOVER FOR CALCULATING DEDUC TION U/S. 80HHC. 3. THIS APPEAL WAS FILED BY A DELAY OF 42 DAYS. THE OR DER OF THE CIT(A) WAS SERVED ON 31.08.2009. THE APPEAL MEMO WAS FILED ON 11.12.2009. THE REQUEST FOR CONDONATION WAS FILED BY THE PARTNER OF M/S. A.J. SHAH & CO. VIDE THEIR LETTER DATED 11.12.2009 ACCOMPANIED BY T HE AFFIDAVIT DULY EXECUTED BY THE COMMERCIAL OFFICER (ACCOUNTS & FINA NCE) OF THE ASSESSEE. THE AVERMENTS IN THE AFFIDAVIT DATED 08.12.2009 BY THE COMMERCIAL OFFICER (ACCOUNTS & FINANCE) IS AS UNDER: - I, MR. VISHWANATH SAWANT, AGED 40, WORKING IN M/S. MULTIPACK SYSTEMS PVT. LTD. MUMBAI OFFICE AT ROHIT CHAMBERS, JANMABHOOI MARG, FORT, MUMBAI 400001 AS COMMERCIAL OFFICER (ACCONTS & FINANCE), SOLEMNLY DECLARE AND STATE AS FOLLOWS: I JOINED M/S. MULTIPACK SYSTEMS PVT. LTD. IN OCTOBE R 2002. I AM DEALING WITH ENTIRE FINANCIAL ACTIVITIES, COLLECTIO N OF DUES FROM THE CUSTOMERS, CLOSING OF ACCOUNTS, SCRUTINY OF FILES, INCOME TAX MATTERS. I AM THE ONLY COMMERCIAL OFFICER (ACCOUNTS & FINANCE) DEALING WITH THE ACCOUNTS OF ENTIRE MUMBAI OFFICE OF M/S. MULTI PACK SYSTEMS PVT. LTD. AS A COMMERCIAL OFFICER (ACCOUNTS & FINANCE), ONE O F MY DUTIES IS ALSO TO ATTEND INCOME TAX MATTERS. HOWEVER, I HAVE NO PREVIOUS EXPERIENCE OF DEALING WITH THE APPEAL MATTERS OF IN COME-TAX APPELLATE TRIBUNAL. M/S. MULTI PACK SYSTEMS PVT. LTD. HAD FILED AN APPE AL FOR ASSESSMENT YEAR 2002-03 BEFORE COMMISSIONER OF INCOME-TAX (APP EALS). THE COMMISSIONER OF INCOME-TAX (APPEALS) HAS DECIDED TH E MATTER AGAINST M/S. MULTI PACK SYSTEMS PVT. LTD. THE APPEAL ORDER WAS RECEIVED ON 31 ST AUGUST 2009. I WAS NOT AWARE THAT AN APPEAL HAS TO BE FILED BEFO RE THE INCOME-TAX APPELLATE TRIBUNAL WITHIN 60 DAYS OF THE RECEIPT OF THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS). THE APPEAL AGAINST THE ORDER OF COMMISSIONER OF INC OME-TAX (APPEALS) HAS TO BE FILED BEFORE 30 TH OCTOBER 2009. HOWEVER, I WAS NOT AWARE OF THE PROVISIONS AND FURTHER DURING THE RELEVANT PERI OD I WAS EXTREMELY HARD PRESSED ON ACCOUNT OF ADMINISTRATION AND ACCOU NT WORK DURING THE MONTH OF OCTOBER AND CLOSING OF ACCOUNTS FOR TH E YEAR ENDED 31 ST MARCH 2009 AND ATTENDING AUDIT QUERIES IN CONNECTIO N WITH THE ITA NO. 6417/MUM/2009 M/S. MULTIPACK SYSTEMS P. LTD. 3 ANNUAL ACCOUNTS FROM FILING OF ANNUAL RETURNS OF TD S AND INCOME-TAX RETURNS BY OCTOBER 2009. I WAS WORKING UNDER TREMEN DOUS PRESSURE. THE MATTER REMAINED UNATTENDED WHEN I REFERRED TO T HE MATTERS TO THE TAX CONSULTANTS OF THE COMPANY. THEY ADVISED ME THA T AN APPEAL OUGHT TO HAVE BEEN FILED WITHIN 60 DAYS, I.E., BEFO RE 30 TH OCTOBER 2009. HOWEVER, I WAS ADVISED THAT AN APPEAL SHOULD BE FILED. I WAS TOLD THAT THE INCOME-TAX APPELLATE TRIBUNAL HAS POW ER TO CONDONE THE DELAY. THEREFORE, I IMMEDIATELY GOT THE PAPERS PREP ARED AND GOT APPEAL IS FILED. 4. AT THE TIME OF HEARING THE LEARNED COUNSEL REITERAT ED THE SAME AND SUBMITTED THAT THE DELAY WAS ON A SUFFICIENT CAUSE AND REQUESTED FOR CONDONATION. THE LEARNED D.R. OBJECTED TO THE SAME. 5. WE HAVE CONSIDERED THE ISSUE. THE LAW SETS OUT VARI OUS TIME LIMITS, BUT IT DOES ALSO RECOGNISES IN QUITE A FEW CASES, T HAT SUCH TIME LIMITS CANNOT BE TOO RIGID AND PROVIDES FOR CONDONATION, WHERE TH E TAX PAYER IS PREVENTED BY SUFFICIENT CAUSE OR IS SUBJECTED TO GENUINE HARD SHIP. IN THIS CASE THE APPEAL MEMO WAS SIGNED ON 30.11.2009 AND VERIFICATI ON BY THE MANAGING DIRECTOR WAS SIGNED ON THAT DATE. THE FEES OF ` 10,000/- WAS ALSO REMITTED IN INDIA OVERSEAS BANK ON 01.12.2009. THIS INDICATES T HAT THE APPEAL MEMO WAS READY DULY SIGNED BY 30.11.2009 AND FEES WAS PA ID ON 01.12.2009. THE APPEAL MEMO SHOULD HAVE BEEN FILED, EVENTHOUGH LATE BY 30 DAYS BY THAT DATE. BUT THE SAME WAS FILED ON 11.12.2009 (FRIDAY) . THIS INDICATES TWO WEEKS OF TIME WAS UTILISED FOR WHICH NO EXPLANATION WAS FILED. 6. FURTHER, THE AFFIDAVIT INDICATES THAT THE COMMERCIA L OFFICER WAS WORKING WITH THE COMPANY FROM OCTOBER 2002 AND IS E NTRUSTED WITH ACCOUNTS AND FINANCE MATTERS BEING THE ONLY OFFICER . AS SEEN FROM ASSESSING OFFICERS ORDER THE ISSUE OF 80IB & 80HHC DEDUCTION WAS HELD AGAINST THE ASSESSEE IN EARLIER ASSESSMENT YEAR AS WELL AND THI S IS THE SIX YEAR OF CLAIM OF DEDUCTION UNDER SECTION 80IA/80IB. THIS INDICATE S THAT THE REASONS OF NOT AWARE OF THE PROVISIONS CANNOT BE ACCEPTED AS A GENUINE REASON. 7. SINCE THE SUFFICIENT CAUSE WAS NOT THERE AND THERE WAS NO EXPLANATION FOR 12 DAYS EVER AFTER THE MEMO WAS READY ON 30.11. 2009, WE ARE NOT INCLINED TO CONDONE THE DELAY, RELYING ON THE PRINC IPLES LAID DOWN BY THE HON'BLE P&H HIGH COURT IN THE CASE OF CIT VS. RAM M OHAN KABRA 257 ITR ITA NO. 6417/MUM/2009 M/S. MULTIPACK SYSTEMS P. LTD. 4 773. AS THE APPEAL MEMO IS NOT ADMITTED, THE QUESTI ON OF CONSIDERING THE GROUNDS ON MERIT DOES NOT ARISE. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED AS UNADMITTED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH MARCH 2011. SD/- SD/- (D. MANMOHAN) (B. RAMAKOTAIAH) VICE PRESIDENT ACCOUNTANT MEMBER MUMBAI, DATED: 30 TH MARCH 2011 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) II, MUMBAI 4. THE CIT II, MUMBAI CITY 5. THE DR, J BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.