J-MARKS LIFESTYLE PRIVATE LIMITED,MUMBAI vs. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 5(2)(1), MUMBAI

PER RAMIT KOCHAR, Accountant Member:

raised by assessee in memo of appeal filed with the Income-Tax Appellate Tribunal, Mumbai (hereinafter called “the tribunal”) read as under:-

1. On the facts and in the circumstances of the case and in law the Commissioner of Income Tax (Appeals)-10, Mumbai erred in confirming the additions of Rs.8,44,93,063/- made by the Learned Assessing Officer DCIT Circle-5(2)(1) Mumbai, on account of Bad Debts, without taking cognizance of detailed submissions made, arguments advanced and details furnished and making additions in total disregard of the correct facts presented. It is therefore prayed that the entire alleged on account of Bad Debts of Rs.8,44,93,063/- be deleted.

2. On the facts and in the circumstances of the case and in law the Commissioner of Income Tax (Appeals)-10, Mumbai erred in confirming the additions of Rs. 13,96,242/- made by the Learned Assessing Officer DCIT Circle-5(2)(1) Mumbai, on account of Legal & Financial Charges treating the same to be capital expenditure without taking cognizance of detailed submissions made, arguments advanced and details furnished and making additions in total disregard of the correct facts presented. It is therefore prayed that the entire alleged addition of Rs.13,96,242/- be deleted.

3. On the facts and in the circumstances of the case and in law the Commissioner of Income Tax (Appeals)-10, Mumbai erred in confirming the additions of Rs.18,56,259/- made by the Learned Assessing Officer DCIT Circle-5(2)(1) Mumbai, on account of Depreciation claimed without taking cognizance of detailed submissions made, arguments advanced and details furnished and making additions in total disregard of the correct facts presented. It is therefore prayed that the entire alleged addition of Rs.18,56,259/- be deleted.

4. Consequential relief be granted in respect of interest charged u/s. 234B and 234C of the Act, if any.

5. Your Appellant craves leave, to add, to amend, modify or alter, the aforesaid grounds and/or adduce further evidence, before or at the time of hearing.”

3. The assessee is engaged in the business of manufacturing , wholesale and retail of home furnishing, made-ups and readymade garments. The assessee filed its return of income electronically on 25.09.2012 declaring total income of Rs. 1,33,07,310/- , which was later revised by the assessee on 31.03.2014 by filing revised return of income wherein it claimed current year loss of Rs. 7,11,85,755/-. The reason for revising of return of income was explained by the assessee to be claim of bad debts of Rs. 8,44,93,063/-. The case of the assessee was selected for scrutiny by Revenue for which notices u/s. 143(2) dated 23.09.2014 was issued by AO to the assessee which was claimed by AO to be duly served on the assessee. During the course of assessments proceedings, various notices u/s. 142(1) and 271(1)(b) were issued by the AO from time to time. The details are recorded in best judgment assessment order dated 27.03.2015 passed by the AO u/s 143(3) read with Section 144 of the 1961 Act. Even summons u/s. 131 were also issued to the assessee by the AO , but the assessee did not cooperated with the AO during assessment proceedings as either the assessee sought adjournments on the date fixed for hearing by the AO or the assessee did not attended the hearing before the AO. The assessment proceedings culminated into best judgment assessment wherein three additions were made by AO vide best judgment assessment order dated 27.03.2015 passed by the AO u/s 143(3) read with Section 144 of the 1961 Act. 3.2 Firstly addition was made by AO to the income of the assessee on account of bad debts to the tune of Rs. 8,44,93,063/- claimed by the assessee vide revised return of income filed by assessee with Revenue. The assessee was incorporated on 03.06.2011 and this is the first year of its operations. The assessee did not furnish details of bad debts and justification for claiming the said bad debts before the AO. The AO observed that the assessee had claimed bad debts to the tune of Rs. 8,44,93,063/- vide revised return of income filed with Revenue on 31.03.2014, but the corresponding income was not offered to tax and also no details as well justification for claiming bad debts were furnished by the assessee before the AO and hence claim of bad debts of Rs. 8,44,93,063/- was disallowed by the AO which stood added to the income of the assessee vide best judgment assessment order dated 27.03.2015 passed by the AO u/s. 143(3) read with Section 144 of the 1961 Act. 3.3 The second addition was made to the income of the assessee by AO on account of legal and financial charges to the tune of Rs. 13,96,242/- claimed by the assessee as deduction while computing its income chargeable to income-tax, wherein no evidences were filed by assessee before AO with respect to these legal and financial charges claimed to be incurred by the assessee , which led to the addition made by the AO to the income of the assessee vide assessment order dated 27.03.2015 passed by the AO u/s 143(3) read with Section 144 of the 1961 Act. 3.4. Further third addition was made by the AO to the income of the assessee towards depreciation of Rs. 18,56,259/- claimed by the assessee on the fixed assets which were claimed to have been acquired/constructed during the year. The assessee had claimed to have made additions to fixed assets viz. Building/ office/factory amounting of Rs. 3,71,25,174/- in the second half of the year and claimed depreciation of Rs. 18,56,259/-. The assessee did not file any details such as bills/agreements and date from which these assets were put to use for the purposes of business of the assessee ,which led the AO to make additions to the income of the assessee to the tune of Rs. 18,56,259/-, vide best judgment assessment order dated 27.03.2015 passed by the AO u/s 143(3) read with Section 144 of the 1961 Act.

4. Aggrieved by an best judgment assessment order dated 27.03.2015 framed by the AO u/s 143(3) read with Section 144 of the 1961 Act, the assessee went in appeal before Ld. CIT(A) challenging additions on all the three issues as were made by the AO because the assessee had not furnished details / justifications for incurring these expenses with respect to all these aforesaid three issues before the AO. The learned CIT(A) observed that assessee has not written off bad debts during the previous year under consideration in its books of accounts nor created an provisions for the bad debts of Rs. 8,44,93,063/- in its books of accounts. It was observed by learned CIT(A) that this claim of bad debts was made by the assessee vide revised return of income filed with Revenue on 31.03.2014 and the claim ought to have been made in previous year 2013-14 relevant to AY 2014-15 as it falls in AY 2014-15. Thus, the additions on account of bad debts were confirmed by learned CIT(A) , vide appellate order dated 28.12.2016 passed by learned CIT(A). 4.2 With respect to the second addition made by the AO on account of legal and financial charges to the tune of Rs. 13,96,242/- in best judgment assessment order dated 27.03.2015 passed by the AO u/s 143(3) read with Section 144 of the 1961 Act, the learned CIT(A) confirmed the additions as the assessee has failed to file details of these expenses and also that the assessee failed to give justification for incurring these expenses even before the AO. The assessee did not give details as to the purpose of taking loan and utilisation of such loans alongwith terms & condition of the bank loans even before Ld. CIT(A), which led learned CIT(A) to uphold the additions as were made by the AO , vide appellate order dated 28.12.2016 passed by learned CIT(A). 4.3 Similarly with respect to claim of depreciation on fixed assets , disallowance thereof was confirmed by learned CIT(A) as no details were submitted by the assessee of the fixed assets acquired/constructed during the previous year relevant to impugned assessment year even before learned CIT(A) and also in the absence of furnishing of evidence of putting these assets to use by the assessee for the purposes of business of the assesse even before learned CIT(A) and hence the additions to the income of the assessee by way of disallowance of depreciation to the tune of Rs. 18,56,259/- were confirmed by Ld. CIT(A) , vide appellate order dated 28.12.2016 passed by learned CIT(A).

5. The assessee being aggrieved by appellate order dated 28.12.2016 passed by learned CIT(A) has filed an appeal before the tribunal. 5.2 The assessee did not appear before the Bench when this appeal was called for hearing on 19.03.2019. Initially when this appeal was fixed for hearing on 19.02.2019 before the Bench, then none appeared on behalf of the assessee and Bench was pleased to adjourn the hearing of this appeal to 19.03.2019. When on 19.03.2019 the appeal was again called for hearing before the Bench, again none appeared on behalf of the assessee. The notice which was sent to the assessee by tribunal on 14.02.2019 vide registered A.D. to the registered address has returned un-served with remark „left premises‟. The said envelop is placed in file. The assessee has not furnished new address with the Registry of the tribunal as is required under Rule 9A of the Income-Tax (Appellate Tribunal) Rules, 1963 , as no revised form No. 36 has been filed by the assessee. Thus, we have observed that the assessee is consistently adopting a casual approach in dealing with the appeal filed with the tribunal. The litigant has to be vigilant to its rights and duties under law. 5.3 We have also observed that the assessee has filed this appeal with tribunal late by 364 days beyond the time stipulated u/s 253(3) of the 1961 Act and reason stated for filing this appeal late in an affidavit dated 17.01.2018 executed by its Director Mr. Dinesh Gangaprasad Jaiswal is that an appellate order dated 28.12.2016 passed by Ld. CIT(A) was received by the peon of the assessee during that time who kept it aside without handing over the same to responsible officer of the assessee. It is claimed in an affidavit dated 17.01.2018 that the Director of assessee came to know about appellate order dated 28.12.2016 passed by learned CIT(A) dismissing appeal of the assessee only in the month of December 2017 . 5.4 We have gone though the prayers made by the assessee in its application for condonation of delay as well as affidavit dated 17.01.2018 filed by the assessee requesting for condoning delay of 364 days in filing this appeal late beyond time prescribed u/s 253(3) of the 1961 Act. The said condonation application along with affidavit is placed in file. In our considered view there is no plausible explanation given by the assessee for filing this appeal late by as many as 364 days beyond time stipulated u/s 253(3) of the 1961 Act as no sufficient cause is shown to us. To contend that peon of the assessee kept the appellate order dated 28.12.2016 passed by learned CIT(A) aside at that time and it is only in December 2017 after a gap of almost one year that the assessee came to know about the appellate order passed by learned CIT(A) , which led to filing of this appeal late by 364 days is incomprehensible on touch stone of preponderance of probabilities. The assessee was represented by a Chartered Accountant Shri Shukra V. Navalkar, FCA before learned CIT(A) to argue its appeal before learned CIT(A) as per details recorded in appellate order passed by learned CIT(A) and it is incomprehensible on touchstone of preponderance of probabilities that a chartered accountant who appeared to argue assessee‟s appeal before learned CIT(A) would not make an enquiry with the assessee or the office of learned CIT(A) for almost one year after conclusion of hearing to know the fate of the appeal of the assessee. Similarly, it is equally incomprehensible on touch stone of preponderance of probabilities that Directors or responsible officers who are in-charge of attending tax matter will make no enquiry with the chartered accountant dealing with tax matter as to the fate of their appeal with learned CIT(A) for almost one year. Thus, we reject condonation application filed by the assessee as no sufficient cause is demonstrated by the assessee for condoning delay of 364 days in filing this appeal late with tribunal. We are fully aware that once technicalities are pitted against justice, the courts will lean towards justice and in case we condone this delay then at best this appeal will be decided on merits but there has to be a plausible and sufficient cause for seeking condonation of delay in filing appeal late beyond time prescribed under statute , which we found lacking in this appeal as the assessee could not explain substantial delay of 364 days in filing this appeal late . The delay in filing appeal in instant case is as much 364 days which by no standards is a small delay and since assessee had failed to explain delay in filing this appeal late by 364 days beyond time stipulated u/s 253(3) with sufficient cause, we dismiss the condonation of delay application filed by the assessee. Even on merits we have observed that the assessee has with respect to all the three claims of deduction of expenditure which stood disallowed by the AO and added to income vide best judgment assessment which later stood confirmed by learned CIT(A), had not filed any details and justifications with respect to these claim of deduction of expenditure with respect to all the three issues before AO as well as before Ld. CIT(A). Even before us none appeared on behalf of the assessee when the appeal was called for hearing and no details as well justifications of claiming these expenses as deduction for computing income of the assessee for impugned assessment year are filed. The assessee has also not filed paper book containing evidences with tribunal to justify its claim of deduction of aforesaid expenses. Under these circumstances keeping in view factual matrix of the case before us, there is no reason and justification for us to interfere with well reasoned appellate order passed by Ld. CIT(A) as there is a failure on the part of the assessee to give details and justification for its claim of deduction with respect to all the aforesaid three issues on the basis of which additions were made by the AO which were later confirmed by learned CIT(A). The appeal of the assessee on all three issues stand dismissed and we affirm well reasoned order passed by Ld. CIT(A).The assessee fails in this appeal. We order accordingly.