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Income Tax Appellate Tribunal, AHMEDABAD “C” BENCH
Before: SHRI PRADIP KUMAR KEDIA & SHRI MAHAVIR PRASAD
PER MAHAVIR PRASAD, JUDICIAL MEMBER
These three appeals filed by the Assessee are directed against the order of the Ld. CIT(A)-2, Ahmedabad dated 21.10.2015 pertaining to A.Ys. 2009-10, 2010- 11 & 2011-12. Since in all appeals facts and circumstances are common only to 3475/Ahd/2015 2 . A.Ys. 2009-10 to 2011-12 assessment year and amount are different, therefore, for the sake of brevity, we would like to dispose of all these appeals by way of a common order.
2. In A.Y. 2009-10, the assessee has taken following grounds of appeal:
1. The order of the Ld. CIT (A)-2, Ahmedabad is erroneous both on facts and in law in as much as the order is prejudicial to the interest of the assessee.
2. The Ld. CIT(A)-2, erred in not accepting the reason for. condonation of delay for filing of appeal by the appellant. 3. The Ld. CIT(A)-2, ought to have appreciated the fact that the appellant company has made a mistake in filing the appeal with the Income Tax Officer instead of Commissioner of Income Tax due to which there has been a delay in the filing of appeal with the CIT (A). Without prejudice to the above, the following are the grounds raised
on the facts of the case:
4. The Ld. CIT(A)-2, erred in disallowing the set off of the brought forward loss of Rs.3,50,485/- which is not correct and not justified, as the assessee has filed its return of income on 23.09.2009 which is well before the due date as prescribed in the Sec. 139(1) of the Income Tax Act, 1961.
5. The CIT(A)-2, has erred in disallowing the set off of depreciation loss brought forward of Rs.30,53,983/- which is not correct and not justified according to the Act.
6. The Ld. CIT(A)-2, erred in estimating the total receipts of the appellant company as Rs.10,00,000/- without considering the book results shown by the assessee which is not justified according to the Act.
7. The Ld. CIT(A)-2 ought to have properly appreciated the fact that the Assessee has properly maintained the books of accounts and arrived at an income of Rs.3,60,000/-as received for providing guest accommodation, Restaurant and Banquets which should be accepted by the CIT(A)-2.
8. The Ld. CIT(A)-2, ought to have appreciated the fact that the amount pertaining to sundry creditors is the opening balance for the year and belongs to earlier year, hence cannot be added for the year under consideration.
9. The Ld. CIT(A)-2, erred in adding an amount of Rs.13,49,271/- by treating it as unexplained cash credit without considering the fact that it is an opening balance for the year under consideration. to 3475/Ahd/2015 3 . A.Ys. 2009-10 to 2011-12 10. The Ld. CIT(A)-2, has erred in initiating penalty proceedings u/s 271(l)(c) of the Act even though the appellant company has neither concealed any income nor furnished any inaccurate particulars of income.
The assessee may add, alter, or modify or substitute any other points to the Grounds of appeal at any time before or at the time of hearing of the appeal.
Facts of the case are as emanated from the impugned order: "In this case, the return of income was filed by the assessee on 23/09/2009 declaring total income of Rs.3,50,485/-. The same was processed u/s. 143(1) of the Act. Thereafter the case was selected for scrutiny under CASS and notice u/s. 143(2) of the Act was issued on 20/09/2010 which was served upon the assessee by regd. post. This notice was also followed by another notice u/s. 143(2) of the Act dated 27/09/2010 was issued and served upon the assessee by RPAD on 29/09/2010. In response to the above notices, the assessee vide its letter dated 02/11/2010 submitted Profit and Loss Account, Auditor's Report and statement of total income. Thereafter due to change in incumbent the following notices were issued. Sr.N Notice/lett Date of Date of service Date of o. er issued notice hearing
1 Notice u/s. 10/06/2011 14/06/2011 24/06/2011 142(1) 2 Notice u/s. 24/06/2011 28/06/2011 11/07/2011 142(1) 3 Letter 06/07/2011 07/07/2011 25/07/2011
4 Letter 23/09/2011 29/09/2011 07/10/2011 The assessee has failed to comply with any of the above notices. Therefore, a show cause notice dated 28/11/2011 was issued to the assessee which is reproduced as under: - "Please refer to the various notices / letters issued by this office right from 27/09/2010 to 23/09/2011.
2. It is regretted to note that your compliance to the said notices / letters were soars or almost zero. You are, therefore, hereby given a final opportunity to explain the following issues along with supporting documentary evidences failing which your assessment for A. Y. 2009-10 will be finalised ex-parte taking into to 3475/Ahd/2015 4 . A.Ys. 2009-10 to 2011-12 account the issues discussed hereunder and further penal proceedings would be initiated for non -compliance and concealment. 2.1. Verification of the copy of various accounts filed by you it is noticed that you have shown income of Rs.3,60,000/- received for providing guest accommodation, Restaurant and Banquets, subscription from Members and other facilities. But despite various opportunities, you have failed to furnish the details of the above receipts supported with books of account, bills etc. In this regard, you are therefore, requested to show cause as to why the book results shown by you should not rejected u/s. 145(3) of the Act and the income estimated. 2.2. It further noticed that you have shown sundry creditors for Rs. 13,49,271/-, but not details of such outstanding creditors has been furnished nor produced any books of account or other supporting evidences in this regard. You are, therefore, requested to show caused as to why the above amount should not be disallowed and added to the total income treating the same as unexplained cash credit u/s. 68 of the Act. You are requested to furnish your written reply to this show cause notice on or before 12/12/2011. Please notice that under no circumstances further opportunity will be given as you have been given sufficient opportunities to explain your case and limitation matter is involved."
The assessee has failed to comply with the above show cause notice also. Therefore, I proceed to finalise the assessment of the assessee after considering the following issues.
3. It is seen that the assessee has shown income of Rs.3,60,000/- for providing guest accommodation, Restaurant and Banquets, subscription from Members and other facilities. However, despite repeated opportunities given to it, the assessee has totally failed to furnish any details in respect of the above receipts. Further, no books of account, receipts etc. were produced. Therefore, for want of verification, the book results shown by the assessee cannot be accepted and the same is rejected u/s. 145(3) of the Act and accordingly the total receipts is estimated at rs.10,00,000/- and the difference of Rs.6,40,000/- is added to the total income treating the same as unaccounted income of the assessee.
It is noticed from the balance sheet that the assessee has been constantly showing sundry creditors of Rs.13,49,271/-. As stated above, the assessee has failed to produce any books of account in spite of repeated opportunities provided to it. Therefore, the genuineness of the above credits cannot be ascertained and hence the same is added to the total income of the assessee treating the same as unexplained cash credit u/s. 68 of the Act.
Since the assessee has not used the capital assets for the business purpose during the previous year relevant to the assessment year 2009-10, no depreciation is allowable and the assessee has also not claimed such depreciation. to 3475/Ahd/2015 5 . A.Ys. 2009-10 to 2011-12 6. Since the assessee has failed to comply with the various statutory notices issued to it as mentioned above, penal proceedings u/s. 271(l)(b) of the Act, are also initiated."
4. Thereafter assessee preferred first statutory appeal before the ld. CIT(A) who dismissed the appeal of the assessee on account of delayed filing of appeal by 789 days. And ld. CIT(A) dismissed the appeal without condoning the delay and nothing has been discussed about the merit of the case.
5. Now Assessee has come before us and stated that the delay in filing of appeal was because of the reason that, earlier appeal was filed with the ld. CIT(A)- VIII, Ahmedabad but on not finding any issue of notice for hearing from year and thereafter cross verifying the facts from the department, assessee came to know about the fact that the appeal was not filed with the jurisdictional CIT(A).
In support of its contention, assessee cited an order of ITAT Chennai in the case of JCIT vs. Tractors & Farm Equipments Ltd. wherein it is held:
"The delay cannot be condoned simply because the appellant's case is hard and calls for sympathy or merely out of benevolence to the party seeking relief. In granting the indulgence and condoning the delay it must be proved beyond the shadow of doubt that the appellant was diligent and was not guilty of negligence whatsoever. The sufficient cause within the contemplation of the limitation provision must be a cause which is beyond the control of the party invoking the aid of the provisions. The Hon'ble Supreme Court in the case of Ramlal v. Rewa Coalfields Ltd. AIR 1962 SC 36! has held that the casue for the delay in filing, the appeal which by due care and attention could have been avoid cannot be a sufficient cause within the meaning of fhe limitation provision. Where no to 3475/Ahd/2015 6 . A.Ys. 2009-10 to 2011-12 negligence, nor inaction, or want of bona fides can be imputed to the appellant a liberal construction of the provisions has to be made in order to advance substantial justice. Seekers of justice must come with clear hands."
And ld. A.R. also cited an order of Hon’ble Apex Court in the matter of Vedabai Alias Vaijayanatabhai Baburao Patil vs. Shantaram Baburao Patil, 253 ITR 798 wherein it is held: "In exercising discretion under section 5 of the Limitation Act, the Court should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration may arise and such case deserves a liberal approach."
Since assessee inadvertently could not file appeal with the Jurisdictional CIT, therefore appeal of the assessee could not be heard. In our considered opinion, it appears to be genuine and cogent reason. Therefore, in the interest of justice, we set aside this matter back to the file of the ld. CIT(A) after condoning the delay that ld. CIT(A) will decide matter on merit of the case after giving an opportunity of hearing heard to the assessee. Assessee is also directed not to seek unnecessarily adjournment and will cooperate with the ld. CIT(A) for speedy disposal of appeal .
In the result, appeal filed by the Assessee is allowed for statistical purpose. to 3475/Ahd/2015 7 . A.Ys. 2009-10 to 2011-12 "1 The Ld. CTT-(A) erred both in law and on facts while dismissing the appeal of the assessee. 2. The Ld. CIT-(A) erred in not accepting the condonation of delay filed by the assessee. 3. The Ld. CIT-(A) ought to have accepted the reason for condonation of delay for filling of appeal by the appellant and must have adjudicated the matter on merit. 4. The Ld. CIT-(A) ought to have appreciated that the delay in filing of appeal by the assessee before it, was due to incorrect filing of the same before the ITO. Without prejudice to the above 5. The Ld. CIT-(A) ought to have appreciated the fact that the AO has invoked the provisions of sec 144 of the Act when there is no failure on the part of the assessee to furnish the relevant information and when no reasonable opportunity of being heard was provided to the assessee. 6. The Ld. CIT-(A) ought to have appreciated the fact the AO erred in estimating the total receipts of the appellant company as Rs. 1,10,00,000/- without considering the book results shown by the assessee which is not correct. 7. The Ld. CIT-(A) ought to have appreciated the fact AO has estimated receipts of the assessee on adhoc basis without considering the book books results declared by the assessee at 17.40% of the total turnover which is very high in the assessee business line. 8. The Ld. CIT-(A) ought to have properly appreciated the fact that the Assessee has properly maintained the books of accounts as required under statue and arrived at income of Rs. 14,80,020/- 9. The Ld. CIT(A) ought to have appreciated the fact that AO erred in estimating income without appreciating the fact that the books of accounts of the assessee are subject to statutory audit as per Companies Act, 1956 and tax audit u/s 44AB of the Income Tax Act.
The Ld. CIT - (A) ought to have appreciated the fact that the AO has made the addition of Rs. 15,51,025/- as unexplained cash credits for the year under consideration without considering the submissions of the assessee. 11. The Ld. CIT- (A) ought to have appreciated fact that the amount of Rs. 13,49,271/- pertaining to sundry creditors is the opening balance for the year under consideration, hence cannot be added for the year under consideration. 12. The Ld. CIT- (A) ought to have appreciated fact that the amount of sundry creditors related to purchases. Since the trade results are rejected and estimation of net profit was made by the AO will results in 13. The Ld. CIT - (A) ought to have appreciated fact that the amount of 13,49,271/-pertaining to sundry creditors is already added to the total income of the assessee as unexplained cash credit for the AY 2009-10. Hence adding the same for the year under consideration will lead to double taxation. 14. The Ld. CIT- (A) ought to have appreciated fact that the sundry creditors are the outcome of purchase transaction. Hence the addition made towards sundry creditors is trading addition, which will increase the margin of the assessee. to 3475/Ahd/2015 8 . A.Ys. 2009-10 to 2011-12 15. The Ld. CIT - (A) ought to have appreciated fact that once the books of account are rejected, scrutiny of sundry creditors was not done and there was no other income, no separate in respect of sundry creditors is not warranted. 16. The assessee may add, alter, or modify or substitute any other points to the Grounds of appeal at any time before or at the time of hearing of the appeal.
11. Since in connected appeal A.Y. 2009-10, on similar facts and circumstances, we have set aside this matter back to the file of the ld. CIT(A). Thus, in parity with the connected appeal, this matter is also set aside to the file of the ld. CIT(A) and assessee appeal is allowed for statistical purpose.
1. The Ld. CIT-(A) erred both in law and on facts while dismissing the appeal of the assessee.
2. The Ld. CIT-(A) erred in not accepting the condonation of delay filed by the assessee. 3. The Ld. CIT-(A) ought to have accepted the reason for condonation of delay for filling of appeal by the appellant and must have adjudicated the matter on merit. 4. The Ld. CIT-(A) ought to have appreciated that the delay in filing of appeal by the assessee before it, was due to incorrect filing of the same before the ITO. Without prejudice to the above 5. The Ld. CIT(A) ought to have appreciated the fact that the AO erred in making disallowance of expenses to an amount of Rs. 19,28,76s/-. 6. The Ld. CIT(A) ought to have appreciated the fact that the AO erred in making adhoc disallowance of 20% of the expenses without there being any reasonable estimate. 7. The Ld. CIT(A) ought to have appreciated the fact that AO has disallowed the expenses without considering the fact that the expenses were incurred wholly and exclusively for the business of the assessee. 8. The Ld. CIT(A) ought to have appreciated the fact that AO erred in estimating income without appreciating the fact that the books of accounts of the assessee are subject to statutory audit as per Companies Act, 1956 and tax audit u/s 44AB of the Income Tax Act and the expenses were duly vouched.
to 3475/Ahd/2015 9 . A.Ys. 2009-10 to 2011-12 9. The assessee may add, alter, or modify or substitute any other points to the Grounds of appeal at any time before or at the time of hearing of the appeal.
13. Since in connected appeal A.Y. 2009-10, on similar facts and circumstances, we have set aside this matter back to the file of the ld. CIT(A). Thus, in parity with the connected appeal, this matter is also set aside to the file of the ld. CIT(A) and assessee appeal is allowed for statistical purpose.
In the result, all the appeals filed by the Assessee are allowed for statistical purposes.
Order pronounced in Open Court on 16 - 01- 2020