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TMI Blog2014 (11) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... take committed by the earlier counsel as constituting a reasonable cause warranting admission of the CO. The ld. DR strongly objected to the condonation of delay. 3. We have heard the rival submissions and perused the relevant material on record. It is noticed that this Cross objection was filed belatedly by one year and 318 days. A request of condonation of delay has been made on the plea that the earlier counsel did not properly guide the assessee. However, no affidavit of the earlier counsel has been placed on record to substantiate this contention raised before us. Apart from this submission, no other argument was raised warranting condonation of delay. 4. We are reminded of the binding judgment of the Hon'ble jurisdictional High Court in Surendra Boveja Vs CWT (2006) 287 ITR 52 (Delhi) in which one of the appeals was filed late by one year and 154 days. The appellant's request for the condonation of delay was turned down by the Hon'ble High Court. In this judgment, their Lordships have held that want of due care, ignorance of law or failure to seek legal advice are not sufficient grounds for condonation of delay. Similar view has been taken by the Hon'ble Madras High Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding against the assessee in an appeal filed by the Revenue, which can be challenged by the assessee through application under the rule. The expression 'on any of the grounds decided against him' throws ample light on the scope of application under this rule. There has necessarily to be some decision of the ld. CIT(A) against the respondent with the ultimate conclusion against the appellant. It can be cited with an example. When the AO reopens an assessment and makes an addition on a particular issue; and in the first appeal, the assessee challenges both the initiation of reassessment and also the addition on merits. If the CIT(A) deletes the addition on merits but upholds the validity of initiation of reassessment and the Revenue files appeal against the deletion of addition on merits, then the assessee can take recourse to rule 27 to support the order of the CIT(A) in deleting the addition by arguing that he ought to have decided the question of initiation of reassessment also in favour of the assessee. This adverse decision against the respondent constitutes the basis for application under rule 27. We want to clarify that such application will also embrace 'no decision' on an is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claimed to be the cornerstone of its application under rule 27, makes it is manifest that the same is simply a general ground, without any specific limbs challenging the validity of the assessment order on the counts on which application has been moved under Rule 27. We are unable to appreciate the view canvassed by the ld. AR in moving application under Rule 27 on issues which were not at all taken up before the ld. CIT(A). No material has been placed on record to demonstrate that the validity of search was challenged before the ld. CIT(A) on all the issues now sought to be taken up before us. The reason for the 'no discussion' of such issues in the impugned order is that these were not at all raised before the ld. CIT(A). If such issues had actually been raised before the ld. CIT(A), then the least to be expected of the assessee was the moving of a rectification application u/s 154 pointing out his failure in dealing with such issues. Nothing of the sort has been done in the instant case. As such we hold that the assessee's application under Rule 27 of the ITAT Rules, 1963 is not maintainable because there is no adverse decision of the ld. CIT(A) on the issues which are now soug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer for submitting the remand report. The AO furnished remand report which was received by the ld. CIT(A) on 12.3.2010. The AO reported that summons u/s 131 of the Act were sent to all the six entities but none of them appeared for hearing. Confirmation was received from three parties given at serial nos. 1, 3 and 6 of the above Table. Inspector of Incometax was deputed for conducting inquiries and serving summons to all the six parties. The Inspector reported that he visited premises no. F-6, Vijay Chowk, Laxmi Nagar, New Delhi for serving the summons on parties at serial no. 1, 2, 3 and 6 of the above Table. On verification, it was noticed that none of the above named companies existed at the given address for last so many years. This was reported on the basis of inquiry conducted from one Shri Ashok Tyagi, a Chartered Accountant running profession in the name of M/s Tyagi and Tyagi. As regards company at serial no. 4 of the Table, the Inspector reported that he visited premises no. 304 E35, Ganesh Complex, Jawahar Park, Laxmi Nagar, New Delhi for serving the summons u/s 131 of the Act. One Shri Mahesh Sharma, running office of a Chartered Accountant, intimated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sal either to produce the representatives of these companies, who were claimed to be its shareholders or to get the notices served on them enabling the AO to conduct further inquiry. 17. At this stage, it is relevant to mention that the Revenue has placed on record a letter dated 09.02.2012 addressed to the Tribunal in respect of appellate proceeding in the case of the assessee for the assessment year 2004-05. Through this letter it has been submitted that the Investigation Wing, New Delhi carried out investigation in respect of accommodation entries and found a list of beneficiaries who had taken such accommodation entries. A CD containing such list is also appended along with this letter. It has been mentioned that the name of the assessee appears in the list of beneficiaries at serial no. 2889 to 2906. The said CD is also stated to contain the statement of Manoj Gupta and his associates, who provided accommodation entries, inter alia, to the assessee company. We want to make it clear that this letter though placed in the present appeal folder has been written in respect of the proceedings for the assessment year 2004-05 in which year again the assessee allegedly received share ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xistent, addition u/s 68 of the Act has to follow notwithstanding the assessee placing on record the documentary evidence about the genuineness of the transactions. Here we want to clarify that in all cases where some share application money is received do not automatically fall within the ambit of sec. 68. Where the Assessing Officer, despite information about accommodation entries, fails to make any inquiry and simply makes the addition by relying on the report of the Investigation wing about the accommodation entries, then no addition can be sustained. This view has been taken by the Hon'ble Delhi High Court in CIT Vs Fair Finvest Ltd. (2013) 357 ITR 146 (Delhi) and CIT Vs Oasis Hospitalities Pvt. Ltd. (2011) 333 ITR 119 (Delhi). 20. When we consider the two sets of cases, one in which addition has been upheld and the other in which the addition has been deleted, the line of distinction becomes quite bright. Where the Assessing Officer failed to conduct any inquiry and simply made the addition on the basis of information received from Investigation Wing, then such addition cannot be sustained. On the other hand, where the Assessing Officer conducted proper inquiry and proved th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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