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Income Tax Appellate Tribunal, ‘B’ BENCH : BANGALORE
Before: SHRI CHANDRA POOJARI & SMT. BEENA PILLAI
IN THE INCOME TAX APPELLATE TRIBUNAL ‘B’ BENCH : BANGALORE BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER ITA No. 1030/Bang/2022 Assessment Year : 2009-10 M/s. Targus India Pvt. Ltd., No. 74, Prestige Ferozes, The Deputy Sampangi Ramaswamy Commissioner of Temple Road, Income Tax, Vasanthnagar, Circle – 12(4), Bengaluru – 560 052. Bengaluru. Vs. PAN: AACCT2319J APPELLANT RESPONDENT Assessee by : Shri SreehariKutsa, Advocate : Shri Subramanian .S, JCIT Revenue by DR Date of Hearing : 30-11-2023 Date of Pronouncement : 01-12-2023 ORDER PER BEENA PILLAI, JUDICIAL MEMBER Present appeal arises out of order dated 30.08.2021 passed by NFAC, Delhi for A.Y. 2009-10 on following grounds of appeal: “1. The Order of the learned Commissioner of Income-tax (Appeals), passed under section 250 of the Act in so far as it is against the Appellant is opposed to law, equity, weight of evidence, probabilities and the facts and circumstances in the Appellant's case. 2. The Appellant denies itself liable to be assessed on a total income of Rs.2,18,38,566/- as against the declared total income of Rs. 6,61,672/-on the facts and circumstances of the case.
Page 2 of 6 ITA No. 1030/Bang/2022 3. The learned CIT(A) erred in upholding the disallowance of Rs. 1,73,65,245/- in respect of the management fees on the facts and circumstances of the case. 4. The learned CIT(A) erred in upholding the disallowance of foreign exchange loss of Rs. 36,65,932/- on the facts and circumstances of the case. 5. The learned CIT(A) failed to appreciate that the management fee as well as foreign exchange loss incurred in consequence thereto are bonafide and genuine and cannot be treated as not genuine without any evidence in support on the facts and circumstances of the case. 6. The learned CIT(A) erred in upholding the disallowance of provision for audit fees of Rs. 1,45,717/- on the facts and circumstances of the case. 7. The learned CIT(A) erred in not adjudicating the ground raised before it with regards to levy of interest under section 234C of the Act on the facts and circumstances of the case. 8. Without prejudice to the right to prefer application before the CCIT or DGIT for waiver of interest, the levy of said interest u/s 234A and 234B of the Act is unsustainable in law and on the facts and circumstances of the case. 9. The Appellant craves leave to add, alter, delete or substitute any of the grounds urged above. 10. In the view of the above and other grounds that may be urged at the time of the hearing of the appeal, including additional grounds of appeal along with appropriate application in support thereof, the Appellant prays that the appeal may be allowed in the interest of justice and equity.”
At the outset, the Ld.AR submitted that there is delay of 156 days in filing of the present appeal. 2.1 The assessee has filed condonation petition vide affidavit dated 31.10.2022 seeking the delay to be condoned.
Page 3 of 6 ITA No. 1030/Bang/2022 2.2 The assessee in the affidavit submitted as under: “2. The Appellant submits that there has been no deliberate delay on their part since the copy of the CIT(A) order was never served on the Appellant. It is only upon checking on the portal that the appellant realized that the appeal has been disposed of. Accordingly, immediately upon knowing that the appeal has been disposed of, the appellant has taken all necessary steps to ensure that the appeal is filed at the earliest. 3. The Appellant submits that the Appellate Order is dated 30/08/2021 and taking into consideration the order of the Hon'ble Supreme Court in Sou Moto Writ Petition (Civil) No. 3/2020 dated 10/01/2022 whereby the hon'ble apex court clarified that the period from 15.03.2020 till 28.02.2022 shall stand excluded in computing limitation period, and a time of 90 days shall be provided for filing the appeals, the appeal ought to have been filed by 29/05/2022. Hence there is a delay of 156 days in filing this statutory appeal.”
2.3 The Ld.AR submitted that in view of the above, the assessee could not file the appeal before this Tribunal well in time and by the time the appeal papers were prepared for filing, there arose delay of about 156 days in filing these present appeal before this Tribunal. The reason for the delay in filing the present appeal was due to reason beyond the control of the assessee. He thus prayed for the delay to be condoned.
2.4 The Ld.DR though objected however could not controvert the reasoning given by the Ld.AR for the delay that was caused in filing the present appeal.
We have perused the submissions advanced by both sides in the light of records placed before us.
Page 4 of 6 ITA No. 1030/Bang/2022 2.5 It is noted that there is no malafide intention on behalf of assessee in not filing the present appeal within time. It is noted that there is no malafide intention on behalf of assessee in not filing the present appeal within time. In our opinion there is a sufficient cause for condoning the delay as observed by Hon’ble Supreme Court in case of Collector Land Acquisition Vs. Mst. Katiji & Ors., reported in (1987) 167 ITR 471 in support of his contentions, wherein, Hon’ble Court observed as under:- “The Legislature has conferred the power to condone delay by enacting section 51 of the Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on de merits ". The expression “sufficient cause” employed by the Legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose of the existence of the institution of courts. It is common knowledge that this court has been making a justifiably liberal approach in matters instituted in this court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that : 1. Ordinarily, a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. ......................................................1.Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.”
2.6 Considering the above observation by Hon’ble Supreme Court, we find it fit to condone the delay caused in filing the present appeal as it is not attributable to the assessee.
Page 5 of 6 ITA No. 1030/Bang/2022 Accordingly, the delay in filing the present appeal stands condoned.
At the outset, it is noted that no details were filed by assessee before the Ld.AO and the order passed by the Ld.CIT(A) is very cryptic. The observations on the four issues have been disposed of by the Ld.CIT(A) by merely upholding the observations of the Ld.AO. It is surprising to note that the Ld.CIT(A) categorically notes that no supporting evidences were furnished by the assessee. However, the Ld.AR submits that assessee had filed various replies before the Ld.AO and Ld.CIT(A) which is placed in the paper book at pages 2-60. In the interest of justice, we deem it proper to remand this issue to the Ld.AO for denovo consideration. The Ld.AO is directed to pass a detailed order on merits after considering the submissions / evidences / details filed by assessee. Needless to say that proper opportunity of being heard must be granted to assessee. Accordingly, the grounds raised by assessee stands allowed for statistical purposes. In the result, the appeal filed by the assessee stands allowed for statistical purposes. Order pronounced in the open court on 01st December, 2023.
Sd/- Sd/- (CHANDRA POOJARI) (BEENA PILLAI) Accountant Member Judicial Member Bangalore, Dated, the 01st December, 2023. /MS /
Page 6 of 6 ITA No. 1030/Bang/2022
Copy to: 1. Appellant 2. Respondent 3. CIT 4. DR, ITAT, Bangalore 5. Guard file 6. CIT(A)-12 By order
Assistant Registrar, ITAT, Bangalore