PENGUIN ELECTRONICS LTD, MUMBAI V. DCIT 9(2), MUMBAI

ITA 6502/MUM/2009

• Counselvise Citation: 650219914 RSA 2009
• Duration Of Justice: 1 year(s) 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 02-05-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 18-12-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Section: 234B; 32

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE SHRI, J. SUDHAKAR REDDY, ACCOUNTANT MEMBER A ND SMT. ASHA VIJAYRAGHAVAN, JUDICIAL MEMBER ITA NO. 6501 & 6502/MUM./2009 (ASSESSMENT YEAR : 2004-05 & 2005-06 ) DATE OF HEARING: 2.5.2011 PENGUIN ELECTRONICS LIMITED 4, PIRAMAL INDUSTRIAL ESTATE ROAD GOREGAON (W), MUMBAI 400 064 PAN AAACP3361L .. APPELLANT V/S DY. COMMISSIONER OF INCOME TAX RANGE-9(2), MUMBAI .... RESPONDENT ASSESSEE BY : MR. K. GOPAL REVENUE BY : MR. S.S. RANA O R D E R PER J. SUDHAKAR REDDY, A.M. THESE APPEALS FILED BY THE ASSESSEE, ARE DIRECTED A GAINST THE IMPUGNED SEPARATE ORDERS DATED 21 ST OCTOBER 2008, PASSED BY THE COMMISSIONER (APPEALS)-IX, MUMBAI, AND ORDER DATED 6 TH OCTOBER 2009, PASSED BY THE COMMISSIONER (APPEALS)-XX, MUMBAI, FOR ASSESSMENT YEARS 2004-05 AND 2005-06 .RESPECTIVELY. 2. FIRST, WE TAKE UP ASSESSEES APPEAL IN ITA NO.6501/ MUM./2009, FOR ASSESSMENT YEAR 2004-05. THERE IS A DELAY OF 333 DA YS IN FILING THE APPEAL. THE ASSESSEE FILED A PETITION FOR CONDONATION OF DE LAY AS WELL AS AN AFFIDAVIT. LEARNED COUNSEL, MR. K. GOPAL, APPEARING ON BEHALF OF THE ASSESSEE, SUBMITS BEFORE US THAT THE ASSESSEE RECEIVED THE FIRST APPE LLATE ORDER FROM THE COMMISSIONER (APPEALS) ON 19 TH NOVEMBER 2008, AND THAT THE DIRECTOR MR. PENGUIN ELECTRONICS LIMITED ITA NO. 6501 & 6502/MUM./2009 2 RAKESH GARODIA, WAS NOT WELL AND HE DID NOT FORWARD THIS ORDER TO THE CONSULTANT FOR PREFERRING AN APPEAL. WHILE SO, ON S IMILAR GROUNDS, THE ASSESSEE COMPANY RECEIVED THE ORDER FROM THE COMMIS SIONER (APPEALS) FOR ASSESSMENT YEAR 2005-06. WHEN THE APPEAL WAS BEING PREFERRED FOR ASSESSMENT YEAR 2005-06, IT WAS OBSERVED THAT FOR S IMILAR GROUNDS, NO APPEAL WAS FILED FOR ASSESSMENT YEAR 2004-05. REALI ZING THIS MISTAKE, WHICH HAD INADVERTENTLY ACCRUED, THE ASSESSEE FORWARDED T HE COPY OF THE COMMISSIONER (APPEALS)S ORDER TO THE TAX CONSULTAN T WHO PREFERRED THE APPEAL AND FILED THE SAME WITH A DELAY OF 333 DAYS. HE PRAYED FOR CONDONATION. 3. LEARNED DEPARTMENTAL REPRESENTATIVE, MR. S.S, RANA, ON THE OTHER HAND, OPPOSED THE SAME. 4. RIVAL CONTENTIONS HEARD. ON A CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND A PERUSAL OF THE PAPE RS ON RECORD AND THE ORDERS OF THE AUTHORITIES BELOW, WE ARE OF THE OPIN ION THAT THIS IS NOT A FIT CASE FOR CONDONATION OF DELAY. EXCEPT FOR SAYING TH AT THE DIRECTOR OF THE ASSESSEE COMPANY WAS NOT WELL AND, HENCE, DID NOT F ORWARD THE PAPERS TO THE CONSULTANT, NO OTHER REASON IS GIVEN FOR EXPLAI NING THE DELAY OF 333 DAYS. NO EVIDENCE IS ADDUCED TO PROVE THAT THE DIRECTOR O F THE ASSESSEE COMPANY WAS ILL. LEARNED COUNSEL PLACED RELIANCE ON THE JUD GMENT OF HON'BLE SUPREME COURT IN IMPROVEMENT TRUST VS UJAGAR SINGH, CIVIL A PPEAL NO.395 OF 2008, VIDE JUDGMENT DATED 9 TH JUNE 2010. THIS CASE DOES NOT THE HELP ASSESSEE, A S IN THAT CASE, IT IS LAID DOWN THAT WHILE CONSIDERIN G AN APPLICATION FOR CONDONATION OF DELAY, NO STRAIGHT JACKET FORMULA IS PRESCRIBED TO COME TO OUR CONCLUSION, IF SUFFICIENT AND GOOD GROUNDS HAVE BEEN MADE OUT OR NOT. EACH CASE HAS TO BE WEIGHED FROM THESE FACTS AND CI RCUMSTANCES IN WHICH THE PARTY ACTS AND BEHAVES. ON THE FACTS OF THIS CA SE, FROM THE CONDUCT AND BEHAVIOUR OF THE PARTY, IT CAN BE SAID THAT THERE H AVE BEEN ABSOLUTELY CALLOUS AND NEGLIGENT IN PROSECUTING THE MATTER. WE ARE, TH US, OF THE OPINION THAT PENGUIN ELECTRONICS LIMITED ITA NO. 6501 & 6502/MUM./2009 3 THE DELAY IS NOT BASED ON BONAFIDE REASONS. CONSEQU ENTLY, WE DO NOT CONDONE THE DELAY AND DISMISS THE APPEAL ON THE GRO UND OF DELAY. 5. NOW, COMING TO ASSESSEES APPEAL IN ITA NO.6502/MUM ./2009, FOR ASSESSMENT YEAR 2005-06, THE ASSESSING OFFICER, IN THIS CASE, HAS RESTRICTED THE DEDUCTION CLAIMED UNDER SECTION 80IA OF THE INC OME TAX ACT, 1961 (FOR SHORT 'THE ACT' ) BY ALLOWING DEPRECATION UNDER SECTION UNDER SECTI ON 32 OF THE ACT, THOUGH THE ASSESSEE HAS NOT CLAIMED DEPREC IATION WHILE COMPUTING DEDUCTION UNDER SECTION 80IA OF THE ACT. 6. THE FIRST APPELLATE AUTHORITY UPHELD THE ORDER OF T HE ASSESSING OFFICER WHILE OBSERVING THAT THE ASSESSEE HAD CONCEDED THAT THE ISSUE IS COVERED AGAINST THE ASSESSEE BY THE JUDGMENT OF HON'BLE JUR ISDICTIONAL HIGH COURT IN SCOOP INDUSTRIES P. LTD. & ORS. V/S ITO & ORS., (20 07) 289 ITR 195 (BOM.). 7. LEARNED COUNSEL, BEFORE US, FAIRLY CONCEDED THAT TH E ISSUE IS COVERED AGAINST THE ASSESSEE BY THE JUDGMENT OF HON'BLE JUR ISDICTIONAL HIGH COURT. IN VIEW OF THE SUBMISSIONS, WE DISMISS GROUNDS NO.1 AN D 2 RAISED BY THE ASSESSEE. 8. COMING TO GROUND NO.3, WHICH IS AGAINST LEVY OF INT EREST UNDER SECTION 234B AND 234D OF THE ACT, THIS GROUND IS CONSEQUENT IAL IN NATURE AND MANDATORY. CONSEQUENTLY, THIS GROUND IS DISMISSED. 9. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13.5.2011 SD/- ASHA VIJAYRAGHAVAN JUDICIAL MEMBER SD/- J. SUDHAKAR REDDY ACCOUNTANT MEMBER MUMBAI, DATED: 13.5.2011 PENGUIN ELECTRONICS LIMITED ITA NO. 6501 & 6502/MUM./2009 4 COPY TO : (1) THE ASSESSEE (2) THE RESPONDENT (3) THE CIT(A), MUMBAI, CONCERNED (4) THE CIT, MUMBAI CITY CONCERNED (5) THE DR, C BENCH, ITAT, MUMBAI TRUE COPY BY ORDER PRADEEP J. CHOWDHURY ASSISTANT REGISTRAR SR. PRIVATE SECRETARY ITAT, MUMBAI BENCHES, MUMBAI DATE INITIAL 1. DRAFT DICTATED ON 9.5.2011 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 9.5.2011 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 9.5.2011 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 9.5.2011 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 9.5.2011 SR.PS/PS 6. DATE OF PRONOUNCEMENT 13.5.2011 SR.PS 7. FILE SENT TO THE BENCH CLERK 13.5.2011 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER