M/S SAISRI POWER PROJECTS AND SYSTEMS PVT LTD ,BANGALORE vs. INCOME TAX OFFICER WARD-6(1)(1), BANGALORE

Per Shri Jason P Boaz, A.M. : This appeal by the assessee is directed against the order of CIT (A)-6, Bangalore, dated 12.06.2018, for Assessment Year 2014-15 dismissing the assessee’s appeal against the order of assessment passed ex-parte u/s 144 of the Income Tax Act, 1961 (in short ‘the Act’).

Order on Condonation of Delay in filing appeal before the Tribunal

2.1 The impugned order of the CIT (Appeals) dt.12.06.2018 was admittedly received by the assessee on 27.06.2018 and therefore, as per law; the present appeal ought to have been filed before the Tribunal within 60 days of receipt of the order i.e. on or

ITA No. 2650/Bang/2018 Page 2 of 10 before 26.08.2018. This appeal, however, was filed on 24.09.2018, thereby leading to a delay of 29 days. Along with the appeal, the assessee has filed an Affidavit dt.22.09.2018 sworn to by the Director of the assessee company seeking condonation of the aforesaid delay of 29 days. The submissions in the assessee's Affidavit are as under : “3. That, the learned CIT(A) dismissed the appeal vide order dated 12.06.2018 and that we have received the order on 27.06.2018. 4. That, we were on a bonafide belief that Mr. Rajat Nahata, who had represented our case earlier before the learned CIT(A) would also file the appeal before the Hon'ble Income Tax Appellate Tribunal within the stipulated time. 5. That, we were informed by our previous counsel that he will not be filing the appeal before the Hon'ble ITAT. 6. That we were left with no option but to look out for the new counsel to file the appeal and represent our case before the Hon'ble Tribunal and in the meanwhile the due date for filing the appeal had expired on 26.08.2018. 7. That, the appellate order was received on 27.06.2018 and the appeal before the Hon'ble Tribunal ought to have been filed on or before 26.08.2018. We wish to state that the delay of 29 days in filing the appeal was only due to the belief that the previous counsel would be filing the appeal before the Hon'ble ITAT within the stipulated time. We also wish to state that adverse inference should not be drawn that we had intentionally not filed the appeal in time for the reason that no rational person would intentionally delay in filing the appeal which would put his own interest in jeopardy. 8. It is submitted that if the application for condonation for delay in filing the appeal is not allowed, the assessee would be put to great hardship and irreparable injury will be caused to the assessee whereas on the other hand, the revenue is not put to hardship in any manner whatsoever if the delay is condoned. Reliance is placed on the decisions of the Supreme Court in the case of Collector, Land Acquisition vs. MST Katiji reported in 167 ITR 471 and in the case of Concord of India Insurance Co. Ltd. vs Smt. Nirmala Devi and Others reported in 118 ITR 507. Reliance is also placed on the decision of the Apex Court in the case of CIT vs. West Bengal Infrastructure Development Finance Corporation Ltd reported in 334 ITR 269. 9. We wish to place reliance on the decision of the Madras High Court in the case of CIT vs Sanmac Motor Finance Ltd reported in 322

ITA No. 2650/Bang/2018 Page 3 of 10 ITR 309 wherein the Court while condoning the delay of 1826 days held that — Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly. The law of limitation is, thus, founded on public policy. The condonation of delay is the discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within certain limit. Length of delay is not the matter; acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be un-condonable due to want of an acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. In every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and shut the door against him. If the explanation does not smack of malgfides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. Reliance is further placed on the following decisions for proposition that the delay in filing the appeal must be condoned: CIT vs. ISRO Satellite Centre in ITA No. 532/2008 dated 28.12.2011 — a. Jurisdictional High Court M/s Raghavendra Constructions vs ITO for the Assessment Year 2007- b. 08 in ITA No. 425/Bang/2012 dated 14.12.2012 — Jurisdictional Bench of the Tribunal CIT vs. Shakuntala Hegde, L/R of R K Hegde in ITA No. 1358/Bang/2006 c. dated 08.10.2012 — Jurisdictional High Court. 10. In view of the above, I pray your Honour to take a lenient view under the facts of the case and condone the delay of 29 days in filing the appeal before your Honour and adjudicate and hear the matter on merits for substantial cause of advancement of justice.”

2.2 We have heard the rival contentions, perused and carefully considered the material on record in respect of the condonation of delay of 29 days in filing the appeal for Assessment Year 2014-15 before the Tribunal. Taking into account the submissions put forth by the assessee in the Affidavit for condonation of delay, and respectfully following the principles laid down by the Hon'ble Apex Court in the case of MST Katiji & Others (1987) 167 ITR 471 (SC), for dealing with matters of condonation of delay, i.e. that substantial justice should prevail over technical considerations, we are of the view that the assessee's default in filing this appeal

ITA No. 2650/Bang/2018 Page 4 of 10 belatedly was neither deliberate nor intentional but was on account of sufficient and reasonable cause. In this view of the matter and in the interest of substantial justice, we are of the opinion that this is a fit case for condonation of delay and accordingly condone the delay of 29 days in filing the appeal for A.Y. 2014-15 before the Tribunal. Consequently, the appeal for Assessment Year 2014-15 is admitted for hearing and adjudication. ORDER

3.1 The assessee company, engaged in business of power and energy, filed its return for Assessment Year 2014-15 on 28.11.2014 declaring NIL income. The return was processed u/s 143(1) of the Income Tax Act, 1961 (in short ‘the Act’) and the case was subsequently taken up for scrutiny. The assessee did not comply with statutory notices issued u/s 143(2) of the Act for hearings and u/s 142(1) of the Act calling for details/clarifications, and therefore the Assessing Officer (‘AO’) proceeded to complete the assessment ex-parte u/s 144 of the Act on the basis of material on record and determined the assessee’s income at Rs.7,00,369/- vide order dated 30.12.2016 in view of the following additions/disallowances: (i) Trade payables - Rs.6,75,369/- (ii) Short term provisions - Rs.25,000/-

3.2 Aggrieved by the order of assessment dated 30.12.2016 for Assessment Year 2014-15, the assessee preferred an appeal before the CIT(A)-6, Bangalore, which was dismissed vide the impugned order dated 12.06.2018.

ITA No. 2650/Bang/2018 Page 5 of 10 1. The orders of the authorities below in so far as it is against the appellant is opposed to law, weight of evidence, natural justice, probabilities, facts and circumstances of the appellant's case. 2. The appellant denies itself liable to be assessed on a total income of Rs.7,00,369/- as against NIL income returned by the appellant under the facts and circumstances of the case. a) The authorities below erred in treating the amount received from M/s. Swayambu 3. Power Systems Private Limited of Rs.4,00,000/- as unexplained credits under the facts and circumstances of the case. b) The learned CIT(A) erred in not accepting the confirmation letter of M/s. Swayambu Power Systems Private Limited filed by the appellant on the facts of the case. 4. The authorities below erred in treating the amount received from M/s. S S Energy Venture Private Limited of Rs.80,369/- as unexplained credits under the facts and circumstances of the case. 5. a) The authorities below erred in treating the refund received from Karnataka Renewable Energy Development Limited of Rs.1,95,000/- as unexplained credits under the facts and circumstances of the case. b) The learned CIT(A) failed to appreciate that the payment made was accounted in the books as preliminary and pre-operative expenses on the facts of the case. c) The learned CIT(A) further failed to appreciate that the refund received was erroneously shown as trade payables under the facts and circumstances of the case. 6. Without prejudice, the authorities below failed to appreciate the fact that the trade payables claimed of Rs.6,75,369/- includes opening balance of Rs.4,49,450/- which is outside the purview of impugned assessment on the facts of the case. 7. The authorities below failed to appreciate the fact that the company had not commenced the business operations during the impugned year and there was no possibility that the said amounts represented the undisclosed income of the appellant on the facts of the case. 8. The authorities below erred in treating the provision made for audit fee amounting to Rs.25,000/- as unexplained credits under the facts and circumstances of the case. 9. The learned CIT(A) failed to take cognizance of the important submissions made by the appellant and confirmed the additions made by the assessing officer which is unwarranted and therefore the order passed need to be set aside in the interest of equity and justice. 10. The appellant craves leave to add, alter, delete or substitute any of the grounds urged above.

ITA No. 2650/Bang/2018 Page 6 of 10 11. In view of the above and other grounds that may be urged at the time of the hearing of the appeal, the Appellant prays that the appeal may be allowed in the interest of justice and equity.

6.0 Admission of Additional Evidence u/Rule 29 of IT(AT) Rules, 1963

6.1 The assessee on 27.11.2018 filed an application for admission of additional evidence u/Rule 29 of the Income Tax (Appellate Tribunal) Rules, 1963 in respect of the following grounds raised in this appeal:

(i) Ground No. 3(a)/(b) – Unexplained cash credit of M/s. Swayambu Power Systems P. Ltd., - Rs.4,00,000 (ii) Ground Nos. 5 to 7 – Application Fees refunded by M/s. Karnataka Renewable Energy Development Ltd., - Rs.1,95,000/- (iii) Ground No. 8 – Addition of provision for Audit Fees – Rs.25,000/- as unexplained credit

6.2 In the aforesaid application for admission of additional evidence, the assessee submitted as under:

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6.3 I have heard the rival contentions and perused and carefully considered the submissions put forth in the assessee’s application for admission of additional evidence. Taking into consideration the fact that since the order of assessment for the year under consideration was passed ex-parte u/s 144 of the Act, I find merit in the submission of the assessee that in view of this, it was prevented by reasonable cause from being able to furnish the necessary evidence/documents before the Assessing Officer (‘AO’). On appeal also, though certain documents were filed, the additions/disallowances were upheld by CIT(A) without calling for any clarification/details which could have been rebutted and details furnished by the assessee. Taking into account the peculiar factual matrix of the case, as discussed above, I am of the considered view that, in the interest of substantial justice, the assessee’s prayer for admission of additional evidence is to be acceded to as the additional evidence could go to the root of the issues involved. In that view of the matter, the additional evidence furnished by the assessee is admitted for consideration and adjudication. Since the additional evidence admitted pertains to grounds 3(a)(b) and 5 to 8 (supra), has not been considered by the authorities below, we set aside the orders of the authorities below on the issues raised in the aforesaid grounds and restore the same issues to the file of the CIT(A) for fresh examination, verification and adjudication after affording both the assessee and the AO reasonable opportunities of being heard and to file details/submissions/rebuttals required, which shall be duly considered before deciding these issues. It is accordingly ordered. Consequently, grounds 3 and 5 to 8 raised by the assessee, being restored to the file

ITA No. 2650/Bang/2018 Page 9 of 10 of CIT(A) for fresh examination and adjudication, are treated as allowed for statistical purposes.

7.1 At the outset, the learned AR for the assessee submitted that this issue, which was raised at ground No. 7(2) before the CIT(A), has not been adjudicated by the CIT(A) in the impugned order. On a perusal of the impugned order and the grounds raised by the assessee in the appeal before CIT(A), it is seen that the contention of the assessee that the CIT(A) has failed to adjudicate this issue, is correct. In this factual position, the issue raised in ground No. 4 of this appeal (supra) is set aside to the file of the CIT(A) with the direction to consider and adjudicate the same issue raised before him by the assessee as ground No. 7(2) after affording the assessee adequate opportunity of being heard and to file details/documents/submission required before deciding the issue. It is accordingly ordered. Consequently, ground No. 4 is treated as allowed for statistical purposes.

Order pronounced in the open court on this 2nd day of January, 2019.

Sd/- Sd/- (N. V. VASUDEVAN) (JASON P BOAZ) Vice President Accountant Member Bangalore. Dated: 02nd January, 2019. /NS/*

ITA No. 2650/Bang/2018 Page 10 of 10 Copy to: 1. Appellants 2. Respondent 3. CIT 4. CIT(A) 5. DR 6. Guard file By order

Assistant Registrar, ITAT, Bangalore.