9911796707
TMI Blog2016 (7) TMI 1082X X X X Extracts X X X X X X X X Extracts X X X X ..... mittedly received notice of the Department's appeal in ITA No. 434/Mum/2011 on 11.10.2012. As per section 253(4) of the Income Tax Act, 1961 (in short 'the Act') the assessee was to have filed its CO within 30 days thereof, but filed the same on 26.08.2013 thereby leading to a delay of 285 days. 2.2.1 In the petition for condonation of delay of 285 days in filing the CO for A.Y. 1995-96, the assessee has put forth the following reasons for the said delay: - "9. ...... The appellants received the Department's appeal (ITA No. 434/Mum/2011) on 11 October 2012. As per section 253(4) of the Act, the Cross objections should have been filed within thirty days from the date of receipt of the department's appeal. Thus there is a delay of 285 days (i.e. from 11 November 2012 to 23 August 2013). 10. The Department's Appeal (ITA No. 434/Mum/2011) was fixed for hearing before the Hon'ble Members of the 'L' Bench on 30 July 2013. 11. During the course of the conference with the Senior Counsel on 29 July 2013 for preparing the matter, it was realized that the appellant is entitled to claim the deduction for the expenditure from the date of set up of the business which precedes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal, it was realized that the assessee as per the order of the ITAT in ITA No. 5272 to 5274/Mum/2001 dated 18.04.2007, the assessee was entitled to claim expenditure from the date of setting up of the business which precedes the date of commencement; whereas as per the impugned order, the learned CIT(A) allowed the assessee's claim for expenditure only from the date of commencement of business which is in contravention of the Tribunal's order (supra) and the CO was filed immediately thereafter. Considering the aforesaid principles laid down by the Hon'ble Apex Court (supra) and the facts of the case on hand we find that there has been no malafide or intentional failure on the part of the assessee, who on realization and appropriate advice by the Counsel has proceeded to file the CO. In these circumstances, we are of the considered view that if the delay of 285 days is condoned there will be no loss to Revenue as legitimate taxes payable in accordance with law alone would be collected. Further, if the delay in filing the CO is not condoned, then the assessee could be put to great hardship. 2.2.4 In view of the discussion of the facts and circumstances of the case (supra), we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution Panel) or Deputy Commissioner (Appeals) or, as the case may be, the Commissioner (Appeals), and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3) or sub-section (3A)." "Rule 22 - A memorandum of cross-objections filed under sub-section (4) of section 253 shall be registered and numbered as an appeal and all the rules, so far as may be, shall apply to such appeal." 3.3.2 On a perusal of the provisions of law and the cited decision we find that in the case of Kripa Chemicals (P) Ltd. (2002) 82 ITD 449 (Pune) the Pune Bench of the ITAT has observed that the Hon'ble Apex Court in the case of B. Subba Reddy AIR 1999SCW 1479 had held that even where an appeal is withdrawn or is dismissed for default, the CO was to be admitted and adjudicated. It is also seen that the Hon'ble Gauhati high Court in the case of CIT vs. Purbanchal Paribahan Gosthi (supra) on the issue of COs referring to section 253 of the Act r.w. Rule 22 of the IT(AT) Rules, 1963 has held that it can be safely held that there is absolutely no difference between an appeal and a CO, save that an appeal can be p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e directions of the Coordinate Bench of this Tribunal in the assessee's own case in ITA No. 5272 to 5274/Mum/2001 dated 18.04.2007 which held that the assessee is entitled to be allowed as a deduction, the expenses incurred after the dare of setting up of banking business in India while computing the assessee's total taxable income. The assessee claimed that 08.11.1994 was the date of setting up of business. It is contended that even though the Coordinate Bench at para 6 of its order (supra) drew up the distinction between setting up of business and commencement of business, and directed the AO to examine the matter and allow expenditure incurred after the date of setting up of the business, the AO and the learned CIT(A), without examining the matter, held that expenses after the date of commencement, i.e. 15.03.1995, only were allowable; which is in violation of the directions of the Tribunal's order. It is prayed that the orders of the authorities below be suitably modified. 4.3 Per contra, the learned D.R. supported the orders of the authorities below. 4.4.1 We have heard the rival contentions of both the parties and perused and carefully considered the material on record. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee in India. The assessee has relied upon only two bare facts as viz, date of grant of licence to do banking business i.e. 08-11-1994; secondly the date of acquisition of building premises that is set to be on 18-07-1994. We are therefore of the view that the assessee is required to bring essential facts on record so that the date on which the business was set up can be determined. Thereafter the provisions of section 37(1) would come into operation. We therefore restore this issue to the file of the learned assessing officer for decision afresh in accordance with law in the light of our order after allowing the assessee reasonable opportunity of being heard in the matter." 4.4.2 On a perusal of the operative portion of the order of the Coordinate Bench (supra), we find, that as contended by the learned Sr. Counsel for the assessee, the authorities below have not adhered to the directions of the Tribunal to allow the assessee deduction of expenditure incurred after the date of setting up of business as opposed to date of commencement of business, i.e. 15.03.1995. We set aside the impugned orders of the learned CIT(A) dated 09.10.2010 and the AO dated 08.12.2008 on this iss ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
