M/S.SHREE VIJAYLAXMI TRADING CORPORATION, MUMBAI V. INCOME TAX OFFICER WARD-17(3)(3), MUMBAI

ITA 675/MUM/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2379 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2012-2013
• Appeal Filed On: 05-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATISH CHANDRA RAJORE
• Keywords: Depreciation; Period of limitation; Condonation of delay
• Section: 271(1)(c); 144; 40(a)(ia)

Judgement Text

1 IN THE INCOME-TAX APPELLATE TRIBUNAL G BENCH MUMB AI BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER ITA NO. 674/MUM/2018 (ASSESSMENT YEAR 2012-13 ) ITA NO. 675/MUM/2018 (ASSESSMENT YEAR 2012-13 ) M/S SHREE VIJAYLAXMI TRADING CORPORATION, C/O. MR. SHISHIR KOBRA, 305, SANGAM ARCADE, STATION ROAD, VILE PARLE (W), MUMBAI-400056 . PAN: AASFS5205R VS. ITO WARD- 17(3)(3) ROOM NO. 123/111A, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020. APPELLANT RESPONDE NT APPELLANT BY : SHRI PIYUSH CHHAJED (AR) RESPONDENT BY : SHRI SATISH CHANDRA RAJORE ( SR- DR) DATE OF HEARING : 11.03.2019 DATE OF PRONOUNCEMEN T : 11.03.2019 ORDER UNDER SECTION 254(1)OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER; 1. THESE TWO APPEAL BY ASSESSEE ARE DIRECTED AGAINST T HE SEPARATE ORDER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-28, HEREIN AFTER REFERRED AS LD CIT(A), MUMBAI DATED 13.10.2017 FOR ASSESSMENT YEAR 2012-13. IN ITA NO. 675/MUM/2018, THE ASSESSEE HAS CHALLENGED T HE ADDITIONS IN THE QUANTUM ASSESSMENT AND IN ITA NO. 674/MUM/2018, THE ASSESSEE HAS CHALLENGED THE CONFIRMATION OF PENALTY UNDER SECTIO N 271(1)(C) OF THE ACT. IN BOTH THE APPEALS, THE LD. CIT(A) DISMISSED THE APPEALS OF THE ASSESSEE UNDER SUB-SECTION (3) OF SECTION 249 BY NO T CONDONING THE DELAY IN FILING APPEAL, RESULTANTLY THE APPEALS WERE NOT ADMITTED FOR HEARING ON ITA NO. 674 & 675 MUM 2018-M/S SHREE VIJAYLAX MI TRADING CORPORATION 2 MERIT. THE APPEAL IN QUANTUM ASSESSMENT WAS FILED A FTER 247 DAYS OF PRESCRIBED PERIOD OF LIMITATION AND SIMILARLY THE A PPEAL ON PENALTY LEVIED UNDER SECTION 271(1)(C) WAS FILED AFTER 65 DAYS OF PERIOD OF LIMITATION. THE LD. CIT(A) DECIDED BOTH THE APPEAL BY COMMON OR DER. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF IMPORT AND EXPORT OF FOOD GRAINS , PULSES AND COMMODITIES. THE ASSESSEE FILED ITS RETURN OF INCOM E FOR ASSESSMENT YEAR 2012-13 ON 30.09.2012 DECLARING INCOME OF RS. 12,56,000/-. THE ASSESSMENT WAS COMPLETED UNDER SECTION 144 ON 29.03 .2015. THE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT ORDE R MADE ADDITION UNDER SECTION 68 OF RS. 1.25 CRORE (APPROX), DISALL OWANCE UNDER SECTION 40(A)(IA) OF RS. 40 LAKHS AND FURTHER DISALLOWED SU NDRY CREDITORS ON ADHOC BASIS @10% OF RS. 4.54 CRORE BEING RS. 44.45 LAKHS. ON APPEAL BEFORE THE LD. CIT(A), THE APPEAL OF ASSESSEE WAS N OT ADMITTED BEING FILED AFTER 247 DAYS OF PRESCRIBED PERIOD OF LIMITA TION. THE ASSESSEE FILED AN APPLICATION FOR CONDONATION OF DELAY ALONG WITH AFFIDAVIT EXPLAINING THE CAUSE OF DELAY. THE APPLICATION OF ASSESSEE FOR CONDONATION OF DELAY WAS NOT ALLOWED; THEREBY APPEAL OF THE ASSESSEE WAS DISMISSED IN LIMINE BEING NOT ADMITTED. SIMILARLY APPEAL AGAINST THE PE NALTY ORDER LEVIED UNDER SECTION 271(1)(C) WAS ALSO FILED AFTER 65 DAY S OF PRESCRIBED PERIOD OF LIMITATION. THE ASSESSEE RAISED IDENTICAL GROUND S FOR CONDONING THE DELAY AS MADE IN APPEAL FOR QUANTUM ASSESSMENT. THE LD. CIT(A) NOT ITA NO. 674 & 675 MUM 2018-M/S SHREE VIJAYLAX MI TRADING CORPORATION 3 ACCEPTED THE CONTENTION OF ASSESSEE IN CONDONING TH E DELAY, THEREBY THE SECOND APPEAL WAS NOT ADMITTED AND DISMISSED IN LIMINE . THUS, WITH THESE BACKGROUNDS, THE ASSESSEE HAS FILED BOTH THE APPEALS BEFORE THIS TRIBUNAL. 3. WE HAVE HEARD THE SUBMISSION OF LD. AUTHORIZED REPR ESENTATIVE (AR) OF THE ASSESSEE AND LD. DEPARTMENTAL REPRESENTATIVE (D R) FOR THE REVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE L D. AR OF THE ASSESSEE SUBMITS THAT THE ASSESSEE FILED DETAILED AFFIDAVIT OF PARTNER OF THE ASSESSEE-FIRM. COPY OF WHICH IS FILED VIDE PAGE NO. 1 & 2 OF PAPER BOOK. THE LD. AR OF THE ASSESSEE FURTHER SUBMITS THAT THE SUBMISSION FILED BEFORE THE LD. CIT(A) IN SUPPORT OF CONDONATION OF DELAY IS ALSO FILED VIDE PAGE NO. 3 TO 5 OF PAPER BOOK. THE LD. AR OF T HE ASSESSEE FURTHER SUBMITS THAT ASSESSMENT ORDER PASSED UNDER SECTION 144 DATED 29.03.2015 WAS RECEIVED BY ASSESSEE ALONG WITH DEMAND NOTICE U NDER SECTION 156 ON 09.04.2015. THE ADMINISTRATIVE OFFICE OF THE FIRM W AS SITUATED AT 101, ARIHANT BUILDING CHS LTD., 103 BAJAJ ROAD, VILE PAR LE (W), MUMBAI. ALL RECORDS RELATED THAT THE BUSINESS INCLUDING VOU CHERS, INVOICES RECEIVED, STATEMENTS WERE KEPT IN THE ADMINISTRATIV E OFFICE. DURING THE RELEVANT FINANCIAL YEAR UNDER CONSIDERATION I.E. 20 12-13, THE ASSESSEE SUFFERED HUGE BUSINESS LOSSES AND ASSESSEE COMMITTE D IN BUSINESS COMMITMENT. THE BANKERS OF ASSESSEE DECLARED THE AS SESSEE-FIRM AND ITS PARTNER AS DEFAULTER AND THE LOAN OF ASSESSEE WAS D ECLARED AS NON- ITA NO. 674 & 675 MUM 2018-M/S SHREE VIJAYLAX MI TRADING CORPORATION 4 PERFORMING ASSET (NPA). ON THE APPLICATION OF BANKE RS OF ASSESSEE I.E. ALLAHABAD BANK AND ORIENTAL BANK OF COMMERCE, THE A DMINISTRATIVE OFFICE/BUSINESS PREMISES OF THE ASSESSEE WAS SEALED IN PURSUANCE OF ORDER DATED 24.12.2014 PASSED BY CHIEF METROPOLITAN MAGISTRATE (CMM), ESPLANADE, MUMBAI IN PROCEEDING INITIATED UN DER SARFAESI ACT. THE LD. AR OF THE ASSESSEE FURTHER SUBMITS THA T 28 CASES WERE LODGED AGAINST THE ASSESSEE-FIRM AND THE COMPANIES WHEREIN THE PARTNERS WERE DIRECTORS. THE FIRM AND ITS DIRECTORS WERE FAC ING VERY TOUGH TIME AND FACING SIGNIFICANT STRESS AND DEPRECIATION DUE TO FINANCIAL LOSSES AND PROLONGED LEGAL PROCEEDINGS. AS A RESULT, THE FIRM AND ITS PARTNER COULD NOT TAKE APPROPRIATE STEP FOR FILING APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. THE LD. AR OF THE ASSESSEE SUBMITS THAT IN THE AFFIDAVIT FILED BEFORE THE LD. CIT(A), THE ASSESSEE EXPLAINED ALL T HE FACTS AS NARRATED ABOVE. THE LD. AR OF THE ASSESSEE SUBMITS THAT THER E WAS SUFFICIENT CAUSE FOR CONDONING THE DELAY IN FILING APPEAL BEFORE THE LD. CIT(A). IN SUPPORT OF HIS SUBMISSION THE LD AR FOR THE ASSESSE E RELIED UPON THE FOLLOWING DECISIONS: 1. COLLECTOR, LAND ACQUISITION VS. MST. KATJI & ORS [1 987] 167 ITR 0471 (SC). 2. S.DURAIPANDI, [2014] 52 TAXMANN.COM 90, MADRAS HC). 3. PRIME PAPER & ENGINEERING (P.) LTD. [2014] 41 TAXMA NN.COM 240 (BOM HC). 4. ALACRITY HOUSING LTD. [2010] 327 ITR 139 (MADRAS HC ). ITA NO. 674 & 675 MUM 2018-M/S SHREE VIJAYLAX MI TRADING CORPORATION 5 5. KAIKARA CONSTRUCTION CO. [2013] 33 TAXMANN.COM 327 (COCHIN TRIB.). 6. JAY DEE SECURITIES & FINANCE LTD. [2017] 88 TAXMANN .COM 626 (DEL. TRIB.). 7. ELNET TECHNOLOGIES LTD. [2018] 99 TAXMANN.COM 219 ( MADRAS HC). 8. VEDABAI AOIAS VAIJAYANATABAI BABURAO PATIL VS. SHAN TARAM BABURAO PATIL. [2002] 122 TAXMAN 114 (SC). 9. PROGRESSIVE EDUCATION SOCIETY [2019] 102 TAXMANN.CO M 402 (SC). 4. THE LD. AR OF THE ASSESSEE FURTHER SUBMITS THAT ASS ESSEE HAS VERY GOOD CASE ON MERIT AND IS LIKELY TO SUCCEED IN CASE THE ASSESSEE IS GIVEN OPPORTUNITY TO CONTEST THE APPEAL ON MERIT. 5. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTAT IVE (DR) FOR THE REVENUE SUPPORTED THE ORDER OF LD. CIT(A). THE LD. DR FOR THE REVENUE FURTHER SUBMITS THAT THE ASSESSEE HAS NOT SHOWN THE FINANCIAL DIFFICULTIES OR OTHER LITIGATION AS DISCLOSED BY LD. AR OF THE A SSESSEE, BEFORE THE LD. CIT(A). THE LD. CIT(A) PASSED THE VERY DETAILED AND REASONED ORDER WHILE DISMISSING THE APPEAL IN LIMINE BY NOT CONDONING THE DELAY IN FILING THE APPEAL. THE ASSESSEE FAILED TO EXPLAIN T HE DELAY BEFORE THE LD. CIT(A), THEREBY THE DELAY WAS NOT CONDONED IN FILIN G APPEAL AND RESULTANTLY THE APPEALS WERE NO ADMITTED. 6. IN THE REJOINDER SUBMISSION, THE LD. AR OF THE ASSE SSEE SUBMITS THAT THE COPY OF AFFIDAVIT FILED BEFORE THE TRIBUNAL, ORIGIN AL OF WHICH WAS FURNISHED TO THE LD. CIT(A) AND THAT ALL FACTS ARE CATEGORICALLY EXPLAINED IN THE AFFIDAVIT. ITA NO. 674 & 675 MUM 2018-M/S SHREE VIJAYLAX MI TRADING CORPORATION 6 7. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PART IES AND HAVE GONE THROUGH THE ORDER OF LD. CIT(A). THE ASSESSING OFFI CER PASSED THE ASSESSMENT ORDER ON 29.03.2014 UNDER SECTION 144 OF THE ACT MAKING VARIOUS ADDITIONS AS WE HAVE REFERRED ABOVE. THE AS SESSMENT ORDER ALONG WITH THE DEMAND NOTICE UNDER SECTION 156 WAS SERV ED UPON THE ASSESSEE ON 09.04.2015. THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A) ON 11.01.2016. THE ASSESSEE ALSO FILED APPLICATION SUP PORTED THE AFFIDAVIT FOR CONDONING THE DELAY OF 247 DAYS IN FILING APPEA L. THE LD. CIT(A) DISMISSED THE APPEAL OF ASSESSEE BY NOT CONDONING T HE DELAY, RESULTANTLY THE APPEAL WAS DISMISSED BEING NOT ADMITTED. 8. THE HONBLE APEX COURT IN COLLECTOR, LAND ACQUISITI ON VS. MST. KATJI & ORS (SUPRA) HELD THAT WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATION ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTAN TIAL JUSTICE DESERVES TO BE PREFERRED, THE OTHER SIDE CANNOT CLAIM TO HAVE V ESTED RIGHT IN INJUSTICE BEING DONE BECAUSE NON-DELIBERATE DELAY. THERE IS N O PRESUMPTION THAT DELAY IS OCCASIONED DELIBERATELY OR ON ACCOUNT OF C ULPABLE NEGLIGENCE OR ON A MALAFIDE. THE LITIGATION DOES NOT STAND TO BEN EFIT BY RESORTING TO DELAY, IN FACT HE IS ON SERIOUS RISK. 9. HONBLE MADRAS HIGH COURT IN S. DURAIPANDI (SUPRA) HELD THAT WHERE ASSESSEE FACED THE FINANCIAL HARDSHIP TO PAY TAX DU E TO RELEVANT TIME AND AFTER MAKING SUFFICIENT ARRANGEMENT OF FUNDS CAN PA Y TAXES, DUE TO DELAY WAS TO BE CONDONED. ITA NO. 674 & 675 MUM 2018-M/S SHREE VIJAYLAX MI TRADING CORPORATION 7 10. THE CO-ORDINATE BENCH OF COCHIN TRIBUNAL IN KAIKARA CONSTRUCTION CO. (SUPRA) ALSO HELD THAT FACING ACUTE FINANCIAL CRISI S AND MULTIPLE LEGAL PROCEEDING CAN BE TREATED AS A REASONABLE GROUND FO R DELAY IN FILING APPEAL BEFORE THE LD. CIT(A). SIMILARLY, THE CO-ORD INATE BENCH OF DELHI TRIBUNAL IN ACIT VS. JAY DEE SECURITIES & FINANCE L TD. (SUPRA) HELD THAT WHERE THERE WAS NO GROSS NEGLIGENCE OR LATCHES ON T HE PART OF ASSESSEE, THE DELAY SHOULD BE CONDONED AND APPEAL OF THE ASSE SSEE SHOULD BE HEARD ON MERIT. 11. THE HONBLE SUPREME COURT IN VEDABAI AOIAS VAIJAYAN ATABAI BABURAO PATIL VS. SHANTARAM BABURAO PATIL (SUPRA) HELD THAT THE COURT SHOULD ADOPT PRAGMATIC APPROACH. THE DISTINCTION MUST BE M ADE BETWEEN A CASE WHERE THERE IS INORDINATE AND A CASE WHERE THE DELA Y IS OF A FEW DAYS. IN THE FORMER CASE, THE CONSIDERATION OF PREJUDICE TO THE OTHER PARTY WILL BE A RELEVANT FACTOR SO THE CASE CALL FOR MORE CAUTIOUS APPROACH BUT IN THE LATER CASE NO SUCH CONSIDERATION MAY ARISE AND SUCH A CAS E DESERVES A LIBERAL APPROACH, NO HARD AND FAST RULE CAN BE LAID DOWN IN THIS REGARD. THE COURT HAS TO EXERCISE THE DISCRETION OF THE FACTS OF EACH KEEPING IN MIND THAT IN CONSTRUING THE EXPRESSION SUFFICIENT CAUSE, THE P RINCIPLE OF ADVANCING SUBSTANTIAL JUSTICE IS OF PRIME IMPORTANCE. 12. THE HONBLE SUPREME COURT IN B. MADHURI GOUD V. B. DAMODAR REDDY (2012) 12 SCC 693, BY REFERRING VARIOUS TO E ARLIER DECISIONS ITA NO. 674 & 675 MUM 2018-M/S SHREE VIJAYLAX MI TRADING CORPORATION 8 OF SUPERIOR COURTS AND HELD THE FOLLOWING PRINCIPAL MUST BE KEPT IN MIND WHILE CONSIDERING THE APPLICATION FOR CONDONAT ION OF DELAY; (I) THERE SHOULD BE A LIBERAL, PRAGMATIC, JUSTICE ORIEN TED, NON-PEDANTIC APPROACH WHILE DEALING WITH AN APPLICATION FOR COND ONATION OF DELAY, FOR THE COURTS ARE NOT SUPPOSED TO LEGALISE INJUSTI CE BUT ARE OBLIGED TO REMOVE INJUSTICE. (II) THE TERMS SUFFICIENT CAUSE SHOULD BE UNDERST OOD IN THEIR PROPER SPIRIT, PHILOSOPHY AND PURPOSE REGARD BEING HAD TO THE FACT THAT THESE TERMS ARE BASICALLY ELASTIC AND ARE TO BE APPLIED I N PROPER PERSPECTIVE TO THE OBTAINING FACT-SITUATION. (III) SUBSTANTIAL JUSTICE BEING PARAMOUNT AND PIVOT AL THE TECHNICAL CONSIDERATIONS SHOULD NOT BE GIVEN UNDUE AND UNCALL ED FOR EMPHASIS. (IV) NO PRESUMPTION CAN BE ATTACHED TO DELIBERATE C AUSE OF DELAY BUT, GROSS NEGLIGENCE ON THE PART OF THE COUNSEL OR LITIGANT I S TO BE TAKEN NOTE OF. (V) LACK OF BONA FIDES IMPUTABLE TO A PARTY SEEKING CONDONATION OF DELAY IS A SIGNIFICANT AND RELEVANT FACT. (VI) IT IS TO BE KEPT IN MIND THAT ADHERENCE TO STR ICT PROOF SHOULD NOT AFFECT PUBLIC JUSTICE AND CAUSE PUBLIC MISCHIEF BECAUSE TH E COURTS ARE REQUIRED TO BE VIGILANT SO THAT IN THE ULTIMATE EVE NTUATE THERE IS NO REAL FAILURE OF JUSTICE. (VII) THE CONCEPT OF LIBERAL APPROACH HAS TO ENCAP SULATE THE CONCEPTION OF REASONABLENESS AND IT CANNOT BE ALLOWED A TOTALLY U NFETTERED FREE PLAY. (VIII)THERE IS A DISTINCTION BETWEEN INORDINATE DEL AY AND A DELAY OF SHORT DURATION OR FEW DAYS, FOR TO THE FORMER DOCTRINE OF PREJUDICE IS ATTRACTED WHEREAS TO THE LATTER IT MAY NOT BE ATTRA CTED. THAT APART, THE FIRST ONE WARRANTS STRICT APPROACH WHEREAS THE SECO ND CALLS FOR A LIBERAL DELINEATION. (IX) THE CONDUCT, BEHAVIOUR AND ATTITUDE OF A PARTY RELATING TO ITS INACTION OR NEGLIGENCE ARE RELEVANT FACTORS TO BE TAKEN INTO CONSIDERATION. IT IS SO AS THE FUNDAMENTAL PRINCIPLE IS THAT THE COURTS ARE REQUIRED TO WEIGH THE SCALE OF BALANCE OF JUSTICE IN RESPECT OF BOTH PARTIES AND THE SAID PRINCIPLE CANNOT BE GIVEN A TOTAL GO BY IN THE NAME OF LIBERAL APPROACH. (X) IF THE EXPLANATION OFFERED IS CONCOCTED OR THE GROUNDS URGED IN THE APPLICATION ARE FANCIFUL, THE COURTS SHOULD BE VIGI LANT NOT TO EXPOSE THE OTHER SIDE UNNECESSARILY TO FACE SUCH LITIGATION. (XI) IT IS TO BE BORNE IN MIND THAT NO ONE GETS AWA Y WITH FRAUD, IS REPRESENTATION OR INTERPOLATION BY TAKING RECOURSE TO THE TECHNICALITIES OF LAW OF LIMITATION. (XII) THE ENTIRE GAMUT OF FACTS ARE TO BE CAREFULLY SCRUTINIZED AND THE APPROACH SHOULD BE BASED ON THE PARADIGM OF JUDICIA L DISCRETION WHICH IS FOUNDED ON OBJECTIVE REASONING AND NOT ON INDIVI DUAL PERCEPTION. (XIII) THE STATE OR A PUBLIC BODY OR AN ENTITY REPR ESENTING A COLLECTIVE CAUSE SHOULD BE GIVEN SOME ACCEPTABLE LATITUDE. 13. NOW COMING TO THE FACTS FOR CONDONING THE DELAY PLA CED BEFORE THE LD. CIT(A), THE ASSESSEE IN ITS AFFIDAVIT HAS CLEARLY S TATED THAT IN THE ITA NO. 674 & 675 MUM 2018-M/S SHREE VIJAYLAX MI TRADING CORPORATION 9 FINANCIAL YEAR 2012-13, THE ASSESSEE-FIRM SUFFERED HUGE LOSSES. THE ASSESSEE-FIRM DEFAULTED IN FINANCIAL DISCIPLINE AND TO HONOR ITS BUSINESS COMMITMENT. THE LOAN/CREDIT FACILITIES AGAINST THE MORTGAGE/HYPOTHECATION CHARGES AND OTHER SECTOR WER E DECLARED AS NPA BY ITS BANKER. THE ASSESSEE ALSO BROUGHT ON RECORD THAT A PROCEEDING INITIATED UNDER SARFAESI ACT AGAINST THE ASSESSEE. THE CHIEF METROPOLITAN MAGISTRATE, MUMBAI ISSUED AUCTION NOTI CE UNDER SARFAESI ACT IN AUGUST 2015. BEFORE THAT THE ADMINI STRATIVE OFFICE OF ASSESSEE WAS SEALED BY THE ORDER OF CHIEF METROP OLITAN MAGISTRATE, MUMBAI VIDE ORDER DATED 16.12.2014. THE ASSESSEE AL SO CONTENDED BEFORE THE LD. CIT(A) THAT AS A RESULT OF MULTIFARI OUS LITIGATION DUE TO FINANCIAL CRUNCH AND COURT PROCEEDING, THE PARTNERS OF THE FIRM NOT ONLY SUFFERED STRESS AND DEPRECIATION BUT ALSO FACING HU GE FINANCIAL CRISIS. THE PARTNER OF THE ASSESSEE FIRM COULD NOT CONCENTRATE ON OTHER BUSINESS ACTIVITIES BURDENED BY PREVAILING CIRCUMSTANCES, TH EREBY MISSED THE DEADLINE FOR FILING APPEAL BEFORE THE LD. CIT(A). A LL THESE FACTS ARE NOT CONTROVERTED BY LD DR FOR THE REVENUE. 14. WE HAVE FURTHER NOTED IN THE MEAN TIME THE PENALTY UNDER SECTION 271(1)(C) WAS ALSO LEVIED BY ASSESSING OFFICER VIDE ORDER DATED 28.09.2015. PERUSAL OF PENALTY ORDER REVEALS THAT T HE ORDER WAS PASSED BY ASSESSING OFFICER AS EX-PARTE. CONSIDERING THE LEGA L POSITIONS AS DISCUSSED ABOVE AND THE FACTS OF THE PRESENT CASE A S NARRATED ABOVE, WE ITA NO. 674 & 675 MUM 2018-M/S SHREE VIJAYLAX MI TRADING CORPORATION 10 ARE OF THE VIEW THAT THE ASSESSEE HAS SHOWN SUFFICI ENT CAUSE FOR CONDONE THE OF DELAY IN BOTH THE APPEAL BEFORE THE LD. CIT (A). IN OUR VIEW, THE ORDER OF LD. CIT(A) IN DISMISSING THE APPEAL BY NOT CONDONING THE DELAY IS NOT SUSTAINABLE IN THE EYES OF LAW, WHICH WE SE T-ASIDE IN BOTH THE APPEALS AND RESTORED BACK BOTH THE APPEALS TO THE F ILE OF LD. CIT(A) TO DECIDE THE APPEALS AFRESH. NEEDLESS TO SAY THAT BEF ORE DECIDING THE APPEAL ON MERIT, THE LD. CIT(A) SHALL GRANT SUFFICIENT AND ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS ALSO DI RECTED TO FULLY CO- OPERATE AND PROVIDE ALL NECESSARY DOCUMENTARY EVIDE NCES AND INFORMATION TO THE LD. CIT(A). 15. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11/03/2019. SD/- SD/- N.K. PRADHAN, PAWAN SINGH ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 11.03.2019 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR G BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST. REGISTRAR ITAT, MUMBAI