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TMI Blog2023 (4) TMI 618X X X X Extracts X X X X X X X X Extracts X X X X ..... y proceeding on this issue. Difference between receipt disclosed in the P L Account and the amount appearing in Form 26AS - Assessee has demonstrated that the difference is on account of inclusion of service tax by the payer of this receipt after subjecting it to TDS. Considering this verifiable fact duly explained by the assessee, we do not find any reason that revisionary proceeding is justified to hold the order being erroneous and prejudicial to the interest of revenue on this issue also. Various expenses claimed by the assessee and no TDS deposited thereon despite reporting of TDS liability in the balance sheet as at 31.03.2010 - There is nothing on record to appreciate the fact about the deposit of this TDS liability and also the extent to which TDS has been done on these expenses claimed by the assessee. The mere assertion by the assessee which also is general in nature that almost 50% of this amount is reimbursed expenses does not justify its claim made before the ld. CIT as well as before us. Accordingly, this being an issue purely on facts which can be verified from the records of the assessee, we find it proper to sustain the order of Ld. CIT(A) on this spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... table to the failure on the part of the counsel of the assessee, to act diligently and as per law in the matter of filing the appeal which he has hopelessly failed to do and therefore the assessee cannot be punished for the wrongs done or mistake on the part of the counsel of the assessee. Besides, ld. Counsel submitted that the assessee met with an accident causing serious injuries and fracturing several bones due to which the assessee remained bed ridden, thereby suffering adversely. In order to prove his averments, ld Counsel took us through the affidavit filed, medical certificates and other records. Ld. Counsel submitted that delay in filing the appeal may kindly be condoned so that appeal of the assessee could be heard on merit. In defense of his arguments, ld. Counsel relied on the following decisions: i) M/s Midas Compounds vs. ACIT in ITA No. 288/Coch/2017 for AY 2006-07 dated 25.06.2018 ii) Concord of India Insurance Co. Ltd. Vs. Smt. Nirmala Devi Ors. Reported in [1979] 118 ITR 507 (SC) iii) Mercedes Benze Education Academy vs. ITO in ITA No. 745/Pun/2015 v) Vijay Visin Meghani vs. DCIT (2017) 398 ITR 250 (Bom) vi) CIT vs. KSP Shanmugavel Nadai Ors. (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and also remained bed ridden for a long time. We have also perused the condonation application relating the sequence of reasons explaining the delay in filing the appeal. Taking into account the circumstances of the case, we find that in the late filing of appeal, there are reasons which were explained before us. In our opinion, delay in filing the appeal deserved to be condoned in the interest of justice and fair play so that the appeal can be heard on merits. Case of the assessee finds support from various decisions as cited before us, a few of which are discussed hereinafter. In the case of Collector Land Acquisition vs. MST Katji ors. (supra), Hon ble Apex Court has laid down following principles: i) Ordinarily a litigant does not stand to benefit by lodging an appeal in late ii) Refusing to condone delay can result in a meritorious matter being thrown at the very threshold and cause of justice being defeated. As against this when delay in condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties, iii) Every day s delay must be explained does not mean that a pedantic approach should be made, why not every hour s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds, we note that ground nos. 1, 2 and 3 are nothing but repetition of the original ground taken by the assessee vide ground nos. 1 to 7. Further, ground no. 4 refers to the issue of service tax shown in the Balance Sheet as at 31.03.2010. We note that this is also a repetition of ground nos. 8 and 9 in the original appeal memo and made of peripheral arguments in nature. Accordingly, we do not find any reason to admit these additional grounds and thus application for their admission is dismissed. 7. Brief facts of the case are that assessee filed its return of income on 01.04.2011 reporting total income at Rs.9,43,459/-. Assessee is engaged in the business of producing motion picture. Case of the assessee was selected for scrutiny through CASS which was completed u/s. 143(3) of the Act after making certain disallowance/addition with assessed income at Rs.13,88,460/-. Subsequently, Ld. Pr. CIT on examination of the material on record, found that the assessment order passed u/s. 143(3) of the Act dated 19.03.2013 is erroneous and prejudicial to the interest of revenue on the following three issues: i) Expenses amounting of Rs.l,80,53,232/- was paid to different parties as Art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... audit and accounts, though included in the TDS liability. 9. On the second issue which relates to difference in the amount of receipt included in the P L Account at Rs.2,55,42,234/- as against an amount of Rs.2,80,56,536/- received by the assessee on account of programme sales appearing in Form 26AS. Ld. CIT noted that the difference has resulted in undisclosed receipt for an amount of Rs.25,14,302/- which the Ld. AO failed to add back to the returned income in the assessment. To this effect, Ld. Counsel for the assessee submitted in the revisionary proceeding that the amount of credit towards programme sales given by Zee News Ltd. was Rs.2,81,49,856/- as appearing in Form 26AS updated till 18.07.2013. According to the assessee, this amount included the component of service tax. Assessee followed the exclusive method in its accounting and thus credited the amount excluding service tax in the P L Account. It was thus submitted that the difference is on account of inclusion of service tax which appeared in the Form 26AS for the amount received by the Zee News Ltd. less TDS done thereon. Ld. CIT observed that claim of assessee is not supported by any evidence. 10. Before us, Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Liability for Audit fees (2007-08) Rs. 11,300 Rs. 22,330 - 4. Other current liability - Rs. 53,10,278 - 5. Sundry Creditors - - Rs. 25,99,031 Total Rs. 53,43,908 Rs. 53,32,608 Rs. 79,41,128 14. From the details contained in the above table, in respect of the third issue relating to tax liability of Rs. 35 lakhs, which according to Ld. CIT is to be disallowed u/s. 43B of the Act, we note that it is an item reported in the Balance Sheet, coming from the Balance Sheet as on 31.03.2008. Further, this amount has not been claimed as an expenditure in computing income from business of the assessee. On referring to section 43B of the Act, we note that certain deductions are allowed only on actual payment. In this section, a deduction which otherwise is allowable under this Act is subjected to the condition of actual payment for its allowability for the purpose o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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