2023 (11) TMI 986 - AT - Income Tax

Delay of 2366 days condoned due to advocate's misconduct; VAT receivable write-off disallowance creates double taxation issue

Access Diamonds Pvt. Ltd. Versus DCIT, Central Circle-7 (1) Mumbai

ITAT Mumbai condoned a delay of 2366 days in filing appeal after finding the assessee acted in good faith, believing their advocate had filed timely when ... Condonation of delay - huge delay of 2366 days - Default on behalf of Advocate / Counsel of the assessee - Bonafide reason for delay - HELD THAT: - As explained by assessee AR Shri Manish Panwar who was entrusted with the filing of appeal had left India, and assessee was on a bonafide belief that Shri Manish would have filed the appeal before the Tribunal on time until it was recently found out that he omitted to do so. We are inclined to condone the delay and note that assessee after realizing the omission on the part of Shri Manish Panwar to file timely the appeal, immediately appointed a new Ld. AR and filed the appeal on 27.02.2023 along with condonation of delay. Therefore, the delay caused in filing of appeal cannot be attributed to any lapse on the part of assessee; and assessee should not suffer for the omission on the part of the Ld. AR. Disallowance of write-off of VAT receivable - assessee has claimed as written off of VAT re-fund not received from Maharashtra VAT Department on account of excess input tax credit over-output tax payable for purchases and sale made during AY. 2009-10 & AY. 2010-11 - HELD THAT:- This amount of VAT Refund which was written off in this year (AY. 2012-13), was received/refunded to assessee in Nov, 2014. And it was offered by assessee for taxation along with interest in AY. 2015-16 and has already been taxed. In order to demonstrate that assessee has already offered the refund VAT AR drew our attention to the profit & loss account which shows that assessee has claimed administrative expenses which included VAT paid/written off. In order to show that assessee had received VAT Refund of FY 2008-09 & 2009-10 which has been written off by assessee in AY. 2012-13 AR drew attention to profit & loss account for AY. 2015-16, which shows that assessee has offered which includes VAT Refund and interest on VAT refund - Thus, it is found that the assessee has offered for tax the VAT refund of Rs. 13,03,839/- which assessee had written off in the relevant assessment year i.e. AY. 2012-13. Therefore, according to the assessee since the assessee has already offered the VAT refund along with interest for taxation in AY. 2015-16 when assessee received it, the action of the AO in this assessment year (AY. 2012-13) disallowing the same and taxing it would tantamount to double taxation which is not permissible. Since we have noticed assessee has offered the sum subsequently in AY. 2015-16, the action of AO/Ld. CIT(A) disallowing the same amount in this AY. 2012-13, cannot be sustained. However, since this fact has not been verified by AO, the impugned order of Ld. CIT(A) is set aside for the limited purpose to the AO to verify whether assessee has offered this amount ( refund of VAT disallowed this year) for taxation in AY. 2015-16 as discussed supra, and if it is found that assessee has offered the same for taxation then, no disallowance of the same amount this year is not warranted. Appeal of the assessee is allowed for statistical purposes. Issues Involved:1. Condonation of delay in filing the appeal.2. Merits of the addition related to VAT refund write-off.Condonation of Delay:The appeal was delayed by 2366 days. The assessee, a private limited company trading in Gold Bullion and Bars, filed for condonation of delay, citing that their authorized representative (AR) left the country without filing the appeal. The Tribunal considered the affidavit from the assessee's director and the judicial precedents, including the Supreme Court's decisions in the cases of Collector, Land Acquisition v. Mst. Katiji and N. Balakrishnan v. M. Krishnamurthy, which advocate for a liberal approach in condoning delays to serve the ends of justice. The delay was condoned as the assessee promptly acted upon discovering the omission.Merits of the Addition:The assessee wrote off VAT receivables for FY 2008-09 and 2009-10 in AY 2012-13, which the AO disallowed, resulting in an addition of Rs. 13,03,839. The assessee argued that this amount was received and offered for tax in AY 2015-16, thus disallowing it in AY 2012-13 would lead to double taxation. The Tribunal noted that the assessee had indeed offered the VAT refund amount for taxation in AY 2015-16, as evidenced by the profit & loss account and other records. Consequently, the Tribunal set aside the CIT(A)'s order and directed the AO to verify if the amount was taxed in AY 2015-16. If confirmed, the disallowance for AY 2012-13 would not be warranted.Conclusion:The appeal was allowed for statistical purposes, with directions for the AO to verify the facts regarding the VAT refund taxation in AY 2015-16. The order was pronounced on 01/09/2023.