SURESHKUMAR GHEWARCHAND HUNDIA,MUMBAI vs. ACIT CC 14, MUMBAI

order s dated 15.03.2012 of the CIT(A)- 37,Mumbai,the Assessee has filed appeals for the above mentioned two Assessment Years(AY.s).As the issues are common in both the appeals,so,we are adjudicating them by passing a common order.

2.The appeals were filed late.In his affidavit,the assessee has stated that there was delay of 28 days in filing the appeals,that he was advised complete bed-rest by the doctor.In his application for condoning the delay he has requested that there was reasonable cause for not filing the appeals on time.Before us,the Authorised Representative (AR) reiterated the same arguments which are part of the affidavit and application of the assessee.The Departmental representative (DR) left the issue to the discretion of the bench. We have perused the application and affidavit and hold that assessee was prevented by a reasonable cause for not filing the appeals on time.Therefore, we condone the delay. 3.Assessee,an individual,is engaged in the business of import and export of gold, silver and bullion and connected activities.The details of dates of filing of returns, returned incomes, dates of assessment etc. can be summarised as under: AY ROI filed on Returned income Assessment Date Assessed income 2007-08 31.10.2007 Rs.1.17 crores 27.12.2010 Rs.1.42 crores 2008-09 06.10.2008 Rs.73.06 lakhs 27.12.2010 Rs.1.01 crores

4324&4325/M/12(07-08&08-09) Sureshkumar Ghewarchand Hundia I.T.A./4324/Mum/2012,AY. 2007-08:

3.1.Effective Ground of appeal (GOA) is about addition of Rs.25.00 lakhs. During the assessment proceeding the AO found that the assessee had claimed the expenses, being one time payment of commission, of Rs.25.00 lakhs, that the assessee had made the said payment to M/s. Nova Scotia (Nova), that it did not deduct tax at source for the payment made, that as per the provisions of section 194H of the Act,he was required to do so.Invoking the provisions of section 40(a)(ia) of the Act, the AO asked the assessee to explain as to why an amount of Rs.25lakhs should not be disallowed for non deduction of tax.After considering the submission of the assessee,dt. 1.11.2010, the AO held that the payment made to Nova was shown as commission in the books of accounts, that the term commission or brokerage as defined in section 194H of the Act was inclusive definition.Referring to the order for the AY. 2006-07 the AO, observed that similar disallowance was made by his predecessors u/s. 40(a) (ia) of the Act, that the order was confirmed by the First Appellate Authority (FAA). Finally, he made an addition of Rs.25 lakhs to the total income of the assessee.