STERLING BIOTECH LTD.,MUMBAI vs. ACIT CENTRAL CIR.-2(4), MUMBAI

These seven appeals are filed by the one assessee i.e. Sterling Biotech Ltd for Assessment Year 2006-07 to 2012- 13 against the identical order passed by the Commissioner of Income Tax (Appeals)-48, Mumbai [in short ‘the CIT (A)’] for all these years, Where appeals filed by assessee are dismissed by the ld CIT (A) as Non maintainable as those were delayed rejecting the application of condonation holding that there is no sufficient cause of such delay. These appeals involve common grounds and same arguments are made by both the sides and therefore, disposed of by these common order. 02. Seven Appeals are :-

As stated by parties that facts and issues involved in all these seven appeal are common and identical, we set out facts for AY 2006-07 and apply decision arrived in that appeal to the other appeals. for Assessment Year 2006-07. The brief facts of the case shows that the assessee company is engaged in the business of manufacture and dealer of chemicals, filed its return of income on 30.11.2006 declaring total income of ₹37,73,44,953/- and the book profit under section 115JB was also disclosed at ₹151,34,9970/-. The action under section 132 of the Income-Tax Act took place in the case of the assessee along with other group entities and therefore the notice under section 153A of the Act was issued on 09.01.2012. In response , assessee furnished return on 29.02.2012 declaring income of ₹38,16,47,426/- as per normal provisions and the book profit income of ₹151,12,970/-.

Aggrieved, by that order, the assessee challenged the same before the learned Commissioner of Income Tax (Appeals).

The learned CIT (A) noted that assessee has filed the appeal before him, which was late by 23 months. Assessee filed petition for condonation of delay on 30th March 2016 showing the reason that delay may be condoned as it has been caused for sufficient reasons. The learned CIT(A) obtained the remand report and there after rejected the condonation application of the assessee stating that assessee has not offered any reply except that assessee did not want to file appeal initially as it was under bonafide belief that no penalty would levied. However, since the Assessing Officer levied the penalty also took action in subsequent years, assessee has filed this appeal. He also mentioned that significantly of large period of about 6 years delay in the filing of the appeal. Therefore, according to him, the appeal of the assessee is not maintainable before of the delay. Thus, the appeal filed by the assessee was held to be not maintainable and hence, dismissed. The assessee is aggrieved with that order and has preferred the appeal before us.

The learned Departmental representative vehemently submitted that there is no infirmity in the order of the learned CIT (A) when assessee has filed appeal belatedly without any sufficient cause for causing the delay.

The learned Departmental Representative also agreed to the same however, opposed it supporting the order of the learned CIT (A) in not admitting the appeals of the assessee before him.

We have carefully considered the rival contentions. We note that assessee has replaced From No.36, which is now verified by the official liquidator. Therefore, the appeals of the assessee are now rectified and are maintainable before us.

On the issue, we find that there was a delay of 23 months in filing of the appeal before the learned CIT(A), the assessee did not file appeal in order to buy peace of mind and to avoid penalty. Further, when the assessment orders in case of other assessment years were also framed on the similar line and when the penalty was levied by the Assessing Officer, the assessee preferred the appeal. It caused delay of almost 23 months and therefore, the assessee preferred the application for condonation of delay, which was rejected by the learned Commissioner of Income Tax (Appeals). We find that even the order of the learned CIT (A) in not admitting the appeal of the assessee is an

The facts of these other six appeals are identical. Accordingly, we allow ground No.1 of the appeal of all these appeals and restore them back to the file of the learned CIT (A) to decide the issue afresh with similar direction.