M/S AUTOLIV INDIA PRIAVTE LIMITED ,BANGALORE vs. DEPUTY COMMISSIONER OF INCOME TAX CIRCLE-1(1)(1), BANGALORE

There was a delay of 813 days in filing appeal before Ld CIT(A) challenging the assessment order passed on 28-12-2010 u/s 143(3) of the Act. The Ld First appellate authority, however, refused to condone the delay on the reasoning that there was no compelling reason for the delay. Aggrieved the assessee has filed appeal before us.

The assessing officer re-opened the assessment of the year under consideration and completed the assessment u/s 143(3) r.w.s. 147 of the Act on 15.02.2013, wherein he again made the addition relating to “Product Development Expenditure”, which had earlier been made in the assessment order passed u/s 143(3) of the Act. The assessee challenged the assessment order passed u/s 143(3) r.w.s 147 of the Act by challenging the addition relating to Product Development Expenditure, by filing appeal before Ld CIT(A). However, the Ld CIT(A) rejected the same, on the reasoning that the above said addition was not made in the reassessment order passed u/s 143(3) r.w.s 147 of the Act. The assessee has filed appeal numbered as ITA 594/B/2018 challenging the order so passed by Ld CIT(A).

We shall first take up the appeal numbered as ITA 593/B/18 relating to the assessment order passed u/s 143(3) of the Act. As noticed earlier, the Ld CIT(A) rejected the appeal in limine refusing to condone the delay in filing appeal before him. With regard to the delay in filing appeal before Ld CIT(A), the Ld A.R relied upon the submissions made before Ld CIT(A).

On the contrary, the Ld D.R submitted that the assessee has not explained the reasons for the delay till the date of filing of appeal before Ld CIT(A). She submitted that the Ld CIT(A) has analysed the submissions made by the assessee in proper perspective and rejected the petition seeking condonation of delay. Accordingly she submitted that the order passed by Ld CIT(A) does not call for any interference.

We heard the parties on this preliminary issue. The submissions made by the assessee before Ld CIT(A) praying for condoning the delay are extracted as under by Ld CIT(A):- “M/s Autoliv India Pvt. Ltd (hereinafter referred to as "the appellants") is a Company engaged in the manufacture of goods. Autoliv India Private Ltd is engaged in the business of design. manufacture and marketing of occupant restraint systems for automobiles. Essentially, the company manufactures-automobile safety belts and sells them to Original Equipment Manufacturers (OEM).

Autoliv India is a subsidiary of Autöliv AB Sweden, Autoliv Safety Systems India Private Lid (seatbelt segment) was incorporated in 1992 in India as a joint venture between Autoliv AB Sweden and IFB Automotive Seating and Systems Pvt. Ltd. (1FB ASSL) India. During the

Autoliv Safety Systems India Private Ltd (seatbelt segment) was originally filing its returns with the Additional Commissioner of Income Tax Range 12. Kolkata. In 2008 after Autoliv AB Sweden and two of its subsidiaries acquired 100% shareholding Autoliv Safety Systems India Private Ltd (seatbelt segment) shifted to New Delhi and sought a transfer of our files to New Delhi. Thereafter Autoliv Safety Systems India Private Ltd (seatbelt segment) had been regularly filing its returns with the Deputy Commissioner of Income-tax Circle-2(1), New Delhi. Since 2010 after merger with the airbag segment M/s Autoliv India Private ltd., i.e., the amalgamated company which now goes by the name of Autoliv India Private Ltd. and its corporate/registered office has shifted to Survey no. 80/3, Chokkahalli village Doddalluru Gram Panchayat, Hoskote Industrial Estate Ltd. Bengaluru-

The appellant is submitting the following in support of the change of registered office;

In the meanwhile, the assessment for the Assessment year 2007-08 was concluded on 28/12 2010 by the Additional Commissioner of Income Tax Range 12, Kolkata who among other additions added a sum of Rs.58,98,918/-by way of product development expenses. The learned assessing authority also failed to give credit for tax deducted at source of Rs 12,57,083/-. A first appeal would normally have been filed by the 27th of January 2011.

The appellant company however filed two rectification applications on 7th March 2011. The applications have not been disposed of till date. On the other hand the assessment was reopened on 27/03/2012. After granting the appellants all of personal hearing, the Ld, Deputy Commissioner of lncome Tax passed the reassessment Order dated 15.02.2013 whereby he has adopted the total income from business as Rs. 27,34,36,5701- as declared in the return dated 28.10.2007 filed by the appellants and disallowed the product development expenditure as held in Order dated 28.12.2010 passed under Section 143(3).

When the order was received we approached our legal counsels who suggested we file an appeal against the order ' u/s 143(3) even if it was belated while praying for a condonation of delay.

The deponent humbly submits that due to the continuous restructuring of the appellant company from 2008 to 2010 and shifting of its jurisdiction for Income Tax Assessments from Kolkata to New Delhi and thereafter to Bangalore and being under the impression that the rectification applications were still pending the assessment for the Assessment Year 2007-08 was lost track of.

It is therefore humbly prayed that your Honour may kindly condone the delay of 27 months and hear the appeal. The appellant further humbly places reliance on the judgment of the Hon'ble Supreme Court in the case of Collector, Land Revenue vs Mst. Katji[1987]167 1TR 471 (SC) wherein the Hon'ble Supreme Court laid down the following guidelines for belated appeals;

Ordinarily a litigant does not stand to benefit by lodging an appeal late.

Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause justice being defeated. As against tins when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

"Every day's delay must be explained" does not mean that pedantic approach should be made. Why not every hour's delay; every second’s delay? The doctrine be applied in a rational common-sense pragmatic manner.

When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in justice being done because of a non deliberate delay.

There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk.

It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.”

Making a justice-oriented approach from this: perspective, there is sufficient cause for condoning the delay in the institution of the appeal.

The appellant further draws support from the judgments which accepted the following as sufficient cause for delay in filing appeal.

We notice that there was restructuring of the assessee company in the form of amalgamation. Consequently, the registered office of the company has been shifted from Kolkatta to New Delhi and thereafter from New Delhi to Bangalore. From the chart furnished by the assessee, we notice that the re-structuring process was going on from 2009 to 2014 in the form of amalgamation and change of address. We notice that the assessment order came to be passed u/s 143(3) of the Act on 28- 12-2010 by the Addl. CIT, Kolkatta, wherein the AO, inter alia, disallowed the Product Development Expenses. According to the assessee, credit for correct amount of TDS was also not given. It is stated that the assessee has filed two rectification petitions on 07- 03-2011 and the said applications have not been disposed of till date.

In the mean time, the AO reopened the assessment and passed the assessment order on 15.02.2013. It is further submitted that, after passing of re-assessment order, the assessee has approached its legal counsel and as per advice given by them, the assessee has preferred appeal against the assessment order passed on 28-12- 2010 u/s 143(3) also. It is also the submission of Ld A.R that the assessee has not accepted the assessment order passed u/s 143(3) of the Act and hence it filed two rectification applications before the AO, meaning that the assessee was not idle, but pursuing the matter in alternative way. He further submitted that the restructuring process, shifting of registered officer as well as the assessment jurisdiction etc., has caused confusion and delay in filing appeal in time. The Ld A.R relied upon the decision rendered

In view of the foregoing discussions, we are of the view that there was sufficient cause for the assessee in not filing the appeal in time before Ld CIT(A). As held by Hon’ble Supreme Court in the case of Mst. Katiji (supra), natural justice should prevail over technical considerations. In fact, allowing an opportunity to present its case will only promote the cause of justice. Accordingly we are of the view that the delay in filing appeal before Ld CIT(A) deserves to be condoned. However, the same shall be at a cost. Accordingly we impose a cost of Rs.5000/- (Rupees Five thousand) upon the assessee which shall be paid to the credit of the Income tax Department as “other fees” on or before 29-02-2010. Subject to the payment of above cost, we condone the delay in filing appeal before Ld CIT(A). Since the Ld CIT(A) has not adjudicated grounds urged on merits, we deem it proper to restore all the issues to his file for adjudicating them afresh.

The other appeal filed by the assessee relates to the assessment order passed u/s 143(3) r.w.s. 147 of the Act, which is numbered as ITA 594/B/2018. In this appeal, the assessee is challenging the addition of Product Development Expenses. As rightly pointed out by Ld CIT(A), the said addition was made by the AO in the assessment order passed u/s 143(3) of the Act and not in the assessment order passed u/s 143(3) r.w.s. 147 of the Act.

In the result, the appeal numbered as ITA 593/B/2018 is treated as allowed and other appeal of the assessee is dismissed.

Date of Dictation ………………………………………

Date on which the typed draft is placed before the dictating Member ……………………. 3. Date on which the approved draft comes to Sr.P.S .……………………………. 4. Date on which the fair order is placed before the dictating Member ……………….. 5. Date on which the fair order comes back to the Sr. P.S. ………………….. 6. Date of uploading the order on website…………………………….. 7. If not uploaded, furnish the reason for doing so ………………………….. 8. Date on which the file goes to the Bench Clerk ………………….. 9. Date on which order goes for Xerox & endorsement…………………………………… 10. Date on which the file goes to the Head Clerk ……………………. 11. The date on which the file goes to the Assistant Registrar for signature on the order ………………………………. 12. The date on which the file goes to dispatch section for dispatch of the Tribunal Order …………………………. 13. Date of Despatch of Order. ……………………………………………..