LINFOX LOGISTICS (INDIA) PVT. LIMITED ,MUMBAI vs. ASSISTANT COMMISSIONER OF INCOME TAX-CIRCLE (10)(2)(1), MUMBAI

At the very outset, it is brought to the notice of the Bench by the Ld. A.R. for the assessee that this appeal has been filed late by 495 days and sought to condone the delay on the grounds inter-alia that the impugned order dated 06.07.2021 passed by the Ld. CIT(A) was not served upon the assessee either on e-mail or by post or on the Income Tax Portal; that assessee has come to know about the impugned order on initiation of the penalty proceedings under section 270A of the Act; that despite having access to the Income Tax Portal to get the quantum order the assessee was unable to find the same online and as such the assessee remained unaware about the impugned order.

However, on the other hand, the Ld. D.R. for the Revenue opposed the application for condonation of delay on the ground that the late filing of appeals in this case is apparently malafide due to callous attitude of the assessee and prayed for dismissal of the application.

We are of the considered view that keeping in view the facts inter-alia that most of the period of delay sought to be condoned by the assessee is covered by the Covid period and due to the shift from physical to digital mode some technical glitches were there in not receiving the impugned order in times, we find sufficient reason to condone the delay of 495 days in view of the law laid down by the Hon’ble Supreme Court in case of Land Acquisition Collector vs. MST Katiji & Others 167 ITR 471 (SC) wherein it is held that “it is on contention of delay that when substantial justice and

Briefly stated facts necessary for consideration and adjudication of the issues at hand are : the assessee company is into supply chain solutions provider which includes warehousing, transportation and related logistic services namely to organize and carry out goods transportation services. The assessee’s return of income filed for the year under consideration declaring nil income was subjected to scrutiny. Necessary notices under section 142(1) of the Income Tax Act, 1961 (for short ‘the Act’) along with questionnaire was issued. During the scrutiny proceedings the Assessing Officer (AO) noticed that the assessee has claimed and debited Rs.57,54,963/- on account of lost stock and assessee was called upon to furnish details of the lost stock and justification for the same. The AO after examining the submissions proceeded to disallow the same and thereby made the addition of Rs.57,54,963/- on the ground that the loss on account of expiry of the product cannot be put on the company entrusted with transporting the goods and that it is not clear whether there is any theft or hijack either in the storage facility or during the delivery which is the real cause for the loss.

The AO also noticed from the tax audit report that the assessee had made provisions for the payment of gratuity of

The assessee carried the matter before the Ld. CIT(A) by way of filing appeal who has confirmed the disallowance/addition made by the AO by dismissing the appeal. Feeling aggrieved with the impugned order passed by the Ld. CIT(A) the assessee has come up before the Tribunal by way of filing present appeal.

We have heard the Ld. Authorised Representatives of the parties to the appeal, perused the orders passed by the Ld. Lower Revenue Authorities and documents available on record in the light of the facts and circumstances of the case and law applicable thereto.

The Ld. A.R. for the assessee contended that he intends to bring on file some additional supporting evidence under rule 29 of the Income Tax Appellate Tribunal Rules, 1963 (for short ‘the Rules’) in the form of copy of agreement entered into between the Linfox and its customers namely Hindustan Unilever Ltd., SAB Miller India Ltd. and Asian Paints Limited, available at page 259E to 259F of the paper book, which has been opposed by the Ld. D.R. on the ground that the assessee has been given sufficient opportunities by the AO as well as Ld. CIT(A) to prove its claim. However, we are of the considered view that to impart the justice and to decide the issue once for all, vital evidence necessary to decide the issue in question is required to be brought on record to be examined by the concerned AO in the light of the settled principle of law in cases of Prabhavati S. Shah 231 ITR 1 (Bom.) & K. Venkataramiah vs. A. Seetharama Reddy AIR 1963 (SC) 1526.

So we hereby admit the additional evidence sought to be led by the assessee and remanded the matter back to AO to decide afresh after providing opportunity of being heard to the assessee.

Accordingly, ground Nos.2 to 5 are decided in favour of the assessee for statistical purposes.

The Ld. D.R. for the Revenue again opposed leading of additional evidence on the ground that sufficient opportunities had already been given to the assessee which it has not availed.

Keeping in view the settled principle of law that to decide the issue once for all and to stop the multiplicity of the proceedings additional evidence sought to be laid if necessary to decide the issue in dispute is to be entertained by the Courts/Tribunal liberally, the assessee is allowed to lead the additional evidence.

We are of the considered view that since analysis of the additional evidence sought to be led by the assessee is required to be made by the AO the case is required to be remanded back to decide afresh by providing opportunity of being heard to the assessee. So ground No.6 is determined in favour of the assessee for statistical purposes.

Since this case belongs to A.Y. 2017-18 the AO in the interest of justice is required to pass the order within three months from the date of appearance of the assessee.

Resultantly, the appeal filed by the assessee is allowed for statistical purposes.