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Income Tax Appellate Tribunal, “B” BENCH KOLKATA
Before: Shri Sanjay Garg & Shri Sanjay Awasthi
Per Sanjay Garg, Judicial Member :
The present appeal has been preferred by the revenue against the order dated 31.03.2023 of the Ld. Commissioner of Income Tax (Appeals), NFAC, Delhi [hereinafter referred to as the “Ld. CIT(A)”] passed u/s. 250 of the Income Tax Act, 1961 (hereinafter referred to as the “Act”) for Assessment Year (AY) 2013-14.
As per the note of the Registry, appeal of the revenue is barred by limitation by 171 days. No application for condonation of delay has been filed. Only ground of appeal
has been taken by the revenue in this respect amongst other grounds of appeal, which are reproduced as under:
1. The delay of one hundred and fifty days (150) in filing appeal before the Hon’ble ITAT due to non-availability of assessment record and thereafter malfunctioning of copying machine. For that reason, a delay of one hundred and fifty days in filing appeal against the order of the Ld. CIT(A) is occurred which may kindly be condoned.
2. That on the facts and circumstances of the case and in law, the Ld. CIT(A), NFAC has erred in deleting the addition to the extent of Rs.165,00,000/- of the disallowance under the head of share application money u/s. 68 of the I. T. Act, 1961 in respect of the head share capital and unsecured loan.
3. That on the facts and circumstances of the case and in law, the Ld. CIT(A), NFAC has erred in deleting the addition to the extent of Rs.3,98,72,213/- of the disallowance under section 68 of the I. T. Act, 1961 in respect of the head of unsecured loan.”
In ground no.1 of the appeal, it has been mentioned that the delay of 150 days (whereas as per the Registry the delay is of 171 days) in filing the appeal before this Tribunal was due to non-availability of assessment record and thereafter, malfunctioning of copying machine. However, it is to be noted that the said reason mentioned in the ground of appeal is a vague reason. The aforesaid averment has not been supported with any evidence or any affidavit of any responsible officer from the Department.
3.1. On the other hand, the Ld. Counsel for the assessee has invited our attention to the order of the Tribunal dated 22.08.2023 passed in for AY 2013-14 (impugned assessment order) in the case of the assessee itself, in an appeal filed by the assessee against the impugned order of the Ld. CIT(A) dated 31.03.2013 relating to the same assessment proceedings.
The brief facts, as noted in the said order, are that the AO made the addition comprising of Rs.4,30,00,000/- on account of share capital and Rs.12,66,94,616/- on account of unsecured loans. However, the Ld. CIT(A), on appreciation of facts, deleted the addition to the extent of Rs.1,30,00,000/- out of the addition made on account of share application and of Rs.3,98,72,213/- out of the unsecured loans. The assessee preferred appeal against the confirmation of total addition of Rs.11,68,22,403/- by the Ld. CIT(A) i.e. Rs. 3 Crores on account of share capital and Rs.8,68,19,403/- on account of unsecured loan treating the same as income of the assessee from unexplained sources. The assessee in its appeal before the Tribunal (supra) stated that the assessee had not received any share capital or loan during the year and that all these were opening balances coming from preceding year. It was explained that the assessee company had acquired one tea estate as a whole, under slump sale, taking over existing assets and liabilities as on 11.04.2012 at book value and accordingly, all the existing assets and liabilities of the aforesaid tea estate have been accounted for at its book value during the year. It was also explained that out of total liability of Rs.19,97,89,720/-, the unsecured loans of Rs.13,85,64,746/- represented the opening balance of unsecured loans as on 01.04.2012. It was also explained that the shares were issued out of the amounts which were brought forward as opening balance. The Tribunal after considering the submissions of the assessee has held that if there was no amount credited or received in the books of account of the assessee during the year in respect of share capital or unsecured loan and only the opening balances were there, then, no addition could be made u/s. 68 of the Act. However, the matter was restored to the file of the AO for examining the limited issue whether any new credits were made in the books of account or the same were out of opening balances. The order of the tribunal was passed on 22.08.2023. It seems that after the receipt of copy of the order of Tribunal in assessee’s appeal, the department got awaken up and preferred the present appeal on 21.11.2023. The reasons for filing the appeal are absolutely vague and cannot be said to be sufficient reasons for condonation of delay. This appeal is purely an afterthought, after the receipt of the order of the Tribunal in the case of the assessee’s appeal.
Therefore, the delay in filing the present appeal is not on account of any sufficient cause or reason, therefore, the same is not liable to be condoned. Even on merits, the assessee has explained that there was no fresh credits received during the year that the impugned share capital and unsecured loan was on account of the assets and liabilities taken over by the assessee of the tea estate taken over by the assessee and which were treated as opening balances, therefore, the appeal of the revenue is dismissed on both counts i.e. being barred by limitation as well as on merits.
In the result, appeal of the revenue is dismissed.